Citation Nr: 21004540 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 17-30 754 DATE: January 27, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to in-service herbicide exposure, is denied. REMANDED Entitlement to service connection for hypertension, to include as due to in-service herbicide exposure, is remanded. Entitlement to service connection for a skin disability manifested by basal cell carcinoma, to include as due to in-service herbicide exposure, is remanded. Entitlement to service connection for multiple lipomas, claimed as soft tissue sarcoma, to include as due to in-service herbicide exposure, is remanded. FINDING OF FACT The most probative evidence of record fails to demonstrate that the Veteran's COPD is related to his in-service exposure to herbicides. CONCLUSION OF LAW The criteria for entitlement to service connection for COPD, to include as due to in-service herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 1116(a)(2), 1131, 5103(a), 5103A, 5017(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 20.1303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1964 to February 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in October 2019. A transcript is of record. This matter was previously remanded by the Board in January 2020 and August 2020 for further development. 1. Entitlement to service connection for COPD, to include as due to in-service herbicide exposure, is denied. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R.§ 3.303(a). Service connection can be demonstrated for a disease diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection, the evidence must generally show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Alternatively, under 38 C.F.R. § 3.303(b), the second and third Shedden/Caluza elements can be established through a demonstration of continuity of symptomatology. For the purposes of 3.303(b), where a Veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, he can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). In addition, such chronic diseases may be presumed to have been incurred in service if it becomes manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1110, 1112; 38 C.F.R. §§ 3.307, 3.309. For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). The Veteran's COPD is not a chronic disease under the pertinent regulations. If a Veteran was exposed to an herbicide agent during active military service, as is the case here, as the Veteran's service personnel records demonstrate that he was in the Republic of Vietnam from February 1967 to February 1968; a number of diseases will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. 38 U.S.C.A. § 1116 (a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The Veteran's COPD is not such a disease. A presumption of service connection based on exposure to herbicides to include Agent Orange used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,399 (2007). The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a claimant is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran's service treatment records are silent for complaint, treatment, or diagnosis of a respiratory disability, including COPD, and no party asserts otherwise. The Veteran asserts that his COPD is related to his conceded in-service exposure to herbicides. During his October 2019 Board hearing, the Veteran asserted that he felt symptoms of COPD sometime after service and he did not seek treatment because he did not think it was “that bad”. The Veteran was initially diagnosed with COPD in 2011. See September 2020 VA Examination. He believes his COPD is related to his in-service herbicide exposure. The RO invited the Veteran to submit scientific or medical evidence showing that his COPD is medically associated with dioxin exposures. See December 2014 Correspondence. To date, the Veteran has not submitted any such scientific articles or medical evidence. The Veteran's VA treatment records dated in January 2010 indicate that he reported a smoking history and that he quit 15 years ago. An October 2014 private medical treatment record reports that he quit smoking 24 years ago, and that he smoked 2 packs per day for 40 years. On VA examination in September 2020, the Veteran reported that his symptoms began “years ago” but could not pinpoint anything beyond this estimate. He recalled that he was hospitalized in the summer of 2011 with “severe pneumonia”, and that following this, he persisted with dyspnea and cough. He recalled that he had milder dyspnea prior to his hospitalization. His VA medical treatment records show that he was initially diagnosed with COPD shortly after his hospitalization in October 2011. The examiner diagnosed the Veteran with COPD and opined that it was less likely than not that such was due to his in-service herbicide exposure. The examiner reasoned that the Veteran had a well-documented smoking history and that this is most likely the cause of his COPD. She noted that his in-service medical exams showed normal pulmonary exams, and that he denied respiratory conditions on his separation exam. The examiner noted that smoking/tobacco use is the most common cause of COPD. The examiner found that given the lack of evidence in the Veteran’s service treatment records (STRs) and his medical records post-separation until 2011 when he was diagnosed, it would be difficult to attribute his COPD to his service. The VA examiner also cited a NCBI study “Veterans and Agent Orange: Update” that found no link between COPD and agent orange exposure. Given this study and the circumstances of the Veteran’s COPD, the VA examiner found that the Veteran’s COPD is less likely than not incurred in our caused by his in-service herbicide exposure. The September 2020 VA opinion was based on a review of the claims file and the examiner offered a reasonable medical basis for her conclusion. Absent probative evidence to the contrary, the Board is not in a position to further question the opinion. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Veteran’s private pulmonologist submitted a letter stating that he has treated the Veteran for the last 4 years, that he has a long-standing diagnosis of COPD, that he has a distant history of tobacco use, that he has a history of service in Vietnam, and that he does not have specific understanding or evidence of other exposure during his time of service. See January 2015 Letter from N.P., M.D. The private doctor did not provide an opinion relating the Veteran’s COPD to any incident of service, to include his in-service exposure to herbicides. Further, the VA treatment records are silent for any medical opinions relating the Veteran's COPD to any incident of service, to include his in-service exposure to herbicides. The Board has considered the Veteran's lay assertions that his COPD is related to his in-service herbicide exposure and finds such question to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). There is no evidence that the Veteran possesses the requisite skill, training, or experience to determine that his COPD is related to his in-service herbicide exposure. Thus, his lay statements in this regard are not competent and lack probative value in the present appeal. In addition, his lay opinions are outweighed by that of the September 2020 VA examiner, as he does not have a similar medical background or expertise. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). The Veteran asserted that a VA doctor related his COPD to his herbicide exposure. See October 2019 Hearing Transcript. His VA medical treatment records do not reflect any such statement from a VA clinician. The Veteran’s assertions lack probative value, as they do not constitute reliable medical evidence. The Veteran may have misremembered or misunderstood what he was told, or may otherwise be misrepresenting what he was told. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (finding that the connection between what a physician said and the layman's account of what he purportedly said, filtered through a layman's sensibilities, is too attenuated and inherently unreliable to constitute medical evidence). The Veteran’s bias in supporting the present claim for benefits is a significant factor in this regard. Further, even if treating physicians told the Veteran that his COPD was probably related to his in-service herbicide exposure, the September 2020 VA examiner explained in a detailed opinion with supporting rationale why it is unlikely that the Veteran's in-service herbicide exposure caused his current COPD and why his smoking was the most likely etiology of his COPD. The Veteran's assertions that he was told by a VA doctor that his COPD was probably related to his in-service herbicide exposure, with no further explanation or documentation, has little probative value in comparison. The September 2020 VA medical opinion obtained in this case has much more probative value and carries more weight. In sum, the Veteran's claim of entitlement to service connection for COPD due to in-service herbicide exposure is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Thus, the Veteran’s claim for service connection for COPD, to include as due to in-service herbicide exposure is denied. See 38 C.F.R.§ 3.303. REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include as due to in-service herbicide exposure, is remanded. Although the Board sincerely regrets the further delay, a remand is required in this appeal to pursue additional development to ensure that there is a complete record upon which to decide the Veteran's claim, so that he is afforded every possible consideration. The Veteran contends that he developed hypertension as a result of being exposed to Agent Orange during service. As noted above, the Veteran has service in the Republic of Vietnam from February 1967 to February 1968 and is thus presumed to have been exposed to herbicides. He was afforded a VA examination to determine the etiology of his diagnosed hypertension in September 2020, where the VA examiner concluded that his hypertension is less likely than not incurred in or caused by service. The examiner discussed the study, NATIONAL ACADEMY OF SCIENCES, Hypertension Upgraded in Latest Biennial Review of Research on Health Problems in Veterans That May Be Linked to Agent Orange Exposure During Vietnam War (Nov. 15, 2018), as directed by the Board. The VA examiner explained that the study investigated a population of Vietnam Veterans and found that there was a higher association for hypertension amongst “sprayers” versus “non-sprayers”. The VA examiner stated that the Veteran would be considered a “non-sprayer” and would therefore fall into the group shown to have a lower association and risk of developing hypertension. The Board finds the September 2020 VA examination inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination must be based on consideration of the claimant's medical history and must describe the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). In this regard, the Veteran has already been conceded to have been exposed to Agent Orange during his service in Vietnam. The September 2020 VA examiner based her conclusion on her finding that the Veteran was a “non-sprayer.” Firstly, the VA examiner did not explain how she came to the conclusion that the Veteran would be considered a non-sprayer. Secondly, this finding would be irrelevant, as the Veteran has already been conceded to have been exposed to herbicides. Therefore, the only question is whether his current hypertension is related to his conceded in-service herbicide exposure. As such, an addendum medical opinion must be obtained. 2. Entitlement to service connection for a skin disability manifested by basal cell carcinoma, to include as due to in-service herbicide exposure, is remanded. 3. Entitlement to service connection for multiple lipomas, claimed as soft tissue sarcoma, to include as due to in-service herbicide exposure, is remanded. The Veteran contends that he developed multiple skin disabilities as a result of being exposed to Agent Orange during service. He was afforded a VA examination for skin disabilities to determine the etiology of his diagnosed basal cell carcinoma and multiple lipomas in September 2020, where the examiner concluded that neither disability was incurred in or caused by service. The Board finds the September 2020 VA medical opinion to be inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination must be based on consideration of the claimant's medical history and must describe the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). In this regard, in the August 2020 remand, the Board specifically instructed the examiner to discuss the Veteran’s in-service itching on his trunk in June 1967 and his exposure to sun in Vietnam. However, the September 2020 VA examiner did not discuss the Veteran’s in-service sun exposure. On remand, an addendum opinion is warranted. The matters are REMANDED for the following action: 1. Obtain the Veteran’s updated VA treatment records. 2. Obtain an addendum medical opinion by an appropriate clinician to determine the nature and etiology of the Veteran’s hypertension. The entire claims file, to include a copy of this remand, must be made available to the examiner. The examiner must note in the report that the claims file has been reviewed. The examiner must opine as to whether it is at least as likely as not (50% or greater probability) that the Veteran’s hypertension is related to his conceded in-service herbicide exposure, regardless of whether he was a “sprayer” or a “non-sprayer.” In this regard, the examiner must discuss the most recent study by NAS released on November 15, 2018, indicating that “[t]he latest in a series of congressionally mandated biennial reviews of the evidence of health problems that may be linked to exposure to Agent Orange and other herbicides used during the Vietnam War found sufficient evidence of an association for hypertension.” NATIONAL ACADEMY OF SCIENCES, Hypertension Upgraded in Latest Biennial Review of Research on Health Problems in Veterans That May Be Linked to Agent Orange Exposure During Vietnam War (Nov. 15, 2018). The examiner must provide a complete rationale for all opinions. 3. Obtain an addendum medical opinion by an appropriate clinician to determine the etiology of the Veteran’s multiple lipomas and basal cell carcinoma. The entire claims file, to include a copy of this remand, must be made available to the examiner. The examiner must note in the report that the claims file has been reviewed. The examiner must opine as to whether it is at least as likely as not (50% or greater probability) that the Veteran’s basal cell carcinoma and multiple lipomas were caused by his in-service sun exposure in Vietnam. The examiner must provide a complete rationale for all opinions. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Mohammad The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.