Citation Nr: 21004762 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-47 069 DATE: January 28, 2021 ORDER Entitlement to service connection for a pulmonary disorder, to include chronic obstructive pulmonary disease (COPD) and asthma, is denied. FINDINGS OF FACT 1. The Veteran was not exposed to herbicide agents during his military service. 2. The preponderance of the evidence reflects that the Veteran’s pulmonary disorders, to include COPD and asthma, did not manifest in service or for many years thereafter, and are not otherwise related to service, to include as due to exposure to jet fuel, asbestos, herbicide agents, or other chemical irritants therein. CONCLUSION OF LAW The criteria for service connection for a pulmonary disorder, to include COPD and asthma, are not met. 38 U.S.C. §§ 1110, 1113, 1116; 38 C.F.R. §§ 3.102, 3.303, 3.307. 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from February 1956 to February 1960. This matter comes to the Board of Veterans Appeals (Board) on appeal from a February 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran testified before the undersigned. In July 2019, the Board remanded this matter for additional development. This appeal has been advanced on the docket pursuant to 38 C.F.R. § 20.902. 1. Entitlement to service connection for a pulmonary disorder, to include COPD and asthma, is denied. The Veteran asserts that his current respiratory disorders, to include COPD and asthma, had their onset during his active duty service or are otherwise related to his active duty service to include as due to exposure to jet fuel, asbestos, other hazardous inhalants, and herbicide agents. See July 2015 Notice of Disagreement (NOD), April 2019 Board Hearing Transcript at 4-5. Specifically, he asserts that he was exposed to JP-4 and other jet fuel and jet fuel exhaust, asbestos insulation in Quonset huts, lead paint, gun smoke, and residual herbicide agents on the people, planes, and supplies returning from the Republic of Vietnam and Thailand, among other places, while he was serving as a supply specialist at Goose Bay Air Force Base at Labrador. See DD Form 214, Service Personnel Records (SPRs), July 2015 NOD. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018).  Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).    VA regulations provide that certain disorders associated with in-service herbicide agent exposure may be presumed service connected. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. Veterans diagnosed with an enumerated disease who, during active service, served in the Vietnam between January 9, 1962, and May 7, 1975, are presumed exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307. For a disease not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on a direct basis. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Initially, the Board notes that the Veteran has a current diagnosis of COPD and asthma. See July 2020 VA examination report. The earliest diagnosed respiratory disorder in the evidence of record is an April 2002 diagnosis of mild restrictive lung disease. See April 2002 private pulmonary treatment records. Thus, element one of service connection is met. Regarding element two, the Veteran asserts, among other things, that he was exposed to herbicide agents while serving at Goose Bay Air Force Base in Labrador, Canada while working as a supply specialist by servicing planes, supplies, and personnel returning from service in the Republic of Vietnam, Thailand, Cambodia, and Laos. While COPD and asthma are not delineated in 38 C.F.R. § 3.309 as presumptively related to herbicide exposure, the Veteran may still establish service connection on a direct basis to include as due to herbicide agents. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board notes that VA regulations state that herbicide agents were only used in Vietnam from January 9, 1962 to May 7, 1975, beginning nearly two years after the Veteran was discharged from active duty. 38 C.F.R. § 3.307(a)(6). The VA has also applied the presumptive provisions regarding herbicide exposure to Veterans who served with the United States Air Force in Thailand during the Vietnam Era on certain Royal Thai Air Force Bases, to include U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, when the evidence establishes their duties placed them on or near the perimeters of the base, as VA has determined that there was significant use of herbicide agents on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. The Board takes judicial notice of a declassified report entitled Project CHECO Southeast Asia Report: Base Defense in Thailand, that shows that there was significant use of herbicide agents on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. Monzingo v. Shinseki, 26 Vet. App. 97, 103 (2012) (allowing for taking of judicial notice of facts of universal notoriety that are not subject to reasonable dispute); Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (1991) (citing Fed.R.Evid. 201 (b)). According to Project Checo, herbicide agents were not approved for use in Thailand until 1969 and the application began in June 1972. Id. At 67, 68. Thus, as there is no evidence regarding the use of herbicide agents in Thailand prior to 1969, or approximately 9 years after the Veteran was discharged from active duty, the Veteran could not have been exposed to herbicide agents via secondary transmission on planes, supplies, and personnel returning from service in Thailand. The Veteran also asserts that he was secondarily exposed to herbicide agent through the servicing of planes, supplies, and personnel returning from service in Laos and Cambodia. The Board notes the Veteran has provided no evidence in support of these assertions other than his lay statements. While the Veteran is competent to report his experiences from active duty, the Board does not find him competent to report that herbicide agents were being used during his active duty service from February 1956 to February 1960. In this regard, the presumption of herbicide agent exposure for veterans who served offshore of the Republic of Vietnam begins on January 9, 1962 and ends on May 7, 1975. 38 U.S.C. § 1116. Offshore is defined as being in a location not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting several specific latitude and longitude points. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). Once more the Board notes that the Veteran’s active duty service ended approximately 2 years prior to the first known use of herbicide agents in Southeast Asia, that he does not qualify as a Vietnam Veteran per 38 U.S.C. §§ 1116 or 1116(a), has provided no evidence regarding the use of herbicides in Laos or Cambodia, no evidence supporting his bare assertion regarding secondary exposure to herbicide agents via returning troops and aircraft, and critically did not serve on active duty during any period when herbicide agents were deployed in Southeast Asia. Accordingly, the Board finds that the Veteran was not exposed to herbicide agents servicing planes, supplies, and personnel returning from service in the Republic of Vietnam, Thailand, Cambodia, or Laos. Finally, while the Veteran’s SPRs reflect service in Labrador, Canada, evidence obtained from the Department of Defense (DoD) reflects that other than a two day tactical herbicide testing period, between July 15-17, 1967, at Base Gagetown in Canada and some brief testing in 1966 acknowledged by the Canadian Government, there is no other documented use of herbicide agents in Canada. See January 2020 Herbicide Memorandum. Thus, the only documented presence of herbicide agents in Canada occurred many years after the Veteran’s release from active duty and at a different military base. The DoD memorandum further explains that Canada was not on the Agent Orange shipping supply line, which went directly from Gulfport, Mississippi, or Mobile, Alabama, to South Vietnam via merchant ships. Id. Thus, there is no evidence supporting the Veteran’s assertion that he was exposed to herbicide agents at any point or in any capacity during his active duty service. Accordingly, the Board finds the Veteran was not exposed to herbicide agents during his active duty service. However, in the July 2019 Board remand, the Board conceded the that the Veteran was exposed to jet fuel exhaust and asbestos in carrying out his duties as a supply specialist in the Air Force. 38 U.S.C. § 1154(a). Thus, element two of service connection is met in this limited regard. Regarding nexus, there is evidence both in favor of and against the claim. In favor of the claim is the June 2019 treatment note from Dr. N.P. that concluded, without a medical rationale, that the Veteran’s conceded exposure to jet fuel in service was a contributing factor to his subsequent development of COPD and asthma. Accordingly, the Board affords the June 2019 note very little probative weight. Against the claim are several private medical treatment records and a July 2020 VA examiner’s opinion. In April 2002, a private pulmonologist concluded that the Veteran’s 31-year history of smoking one pack per day was the cause of his chronic obstructive airway disease and the most likely cause of the reported increase in coughing and shortness of breath. In this regard, the Board notes the Veteran has also reported a 40 pack-year history of smoking, a 33 pack-year smoking history, and a 25 pack-year history of smoking. See October 2002, June 2009, August 2014 VA treatment records; September 2007 private treatment records; June 2019 private treatment records. The Veteran asserted in his July 2015 NOD that he would never have used tobacco but for his enlistment in the Air Force. See also April 2019 Board Hearing Transcript at 3. For claims received by VA after June 9, 1998 (which applies to the instant appeal), a disability or death will not be considered service-connected on the basis that it resulted from injury or disease attributable to the veteran’s use of tobacco products during service. 38 C.F.R. § 3.300. The April 2002 private pulmonologist also considered the Veteran’s 30-year employment with a large mass-production winery where he was exposed to significant amounts of ammonia and chlorine, on one occasion requiring medical treatment for exposure to toxic fumes, to also be a source of his respiratory symptoms. The July 2020 VA examiner opined that the Veteran’s diagnosed COPD and asthma were more likely than not related to the Veteran’s long 30 to 33-year long history of smoking one pack per day. In support of his conclusion, the VA examiner opined that while exposures to jet fuel, vehicle fumes, lead paint, and asbestos can cause localized tissue injury and inflammation, that these types of exposures rarely cause COPD. The examiner noted that the Veteran’s upper respiratory infections in service, diagnosed in July 1956 and March 1957, were not of a greater frequency or severity than would be ordinarily expected and could find no indication in the Veteran’s Service Treatment Records (STRs) of any symptoms that could be attributed to a chronic respiratory disorder. Notably, the Veteran testified that he had no symptoms of a respiratory disorder during his active duty service. See April 2019 Board Hearing Transcript at 5. He also testified that the symptoms first arose 4 to 6 years after discharge and sometime between 1970 and 1999. Id. at 3-5. Critical to the Veteran’s testimony regarding the onset of his symptoms are the statements he made while seeking treatment at April 2002 private pulmonology clinic, wherein the Veteran reported his shortness of breath and respiratory symptoms initially had their onset 2-3 years prior, completely resolved, and then returned persistently in the two months prior to the April 2002 pulmonology visit. The Board finds that the Veteran's statements made while seeking treatment are more credible and probative regarding his history of the onset of respiratory symptoms than his statements made in connection with his VA disability claim. Generally, statements made in conjunction with treatment are considered to be more credible and trustworthy than those made in situations where secondary gain may be a factor. See Fed. R. Evid. 803 (4) (recognizing that statements made for the purpose of medical treatment generally are reliable); see also Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ([R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons); Pond v. West, 12 Vet. App. 341, 345 (1999) (interest may affect the credibility of testimony); and White v. Illinois, 502 U.S. 346, 348, 112 S. Ct. 736, 739 (1992) (statements made in the course of receiving medical care are made in contexts that provide substantial guarantees of their trustworthiness). Accordingly, there is no credible evidence to establish the onset of the Veteran’s respiratory symptoms until over 40 years post-discharge from active duty. The July 2020 VA examiner additionally opined, in addressing the June 2019 treatment note from Dr. N.P. regarding jet fuel, that significant inhalant and chemical exposure during active service would have immediately led to a significant damage of the Veteran’s lung tissue with clinically significant symptoms. In this regard, the July 2020 VA examiner, in November 2020, reviewed x-rays from October 2020 and noted they were negative. Moreover, while the Veteran provided subjective statements of pressure in his chest, coughing up blood, and shortness of breath on his February 1956 “Report of Medical History,” his February 1956 enlistment Report of Medical Examination is silent as to any complaints and notes normal lungs and chest. Thus, the Board finds that the presumption of soundness attaches, and the Veteran is presumed sound with respect to any pulmonary disabilities at service entrance. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The Veteran denied shortness of breath, chest pain or pressure, and chronic cough on his separation Report of Medical History in January 1960. The Veteran’s lungs and chest were found normal by a medical officer during the January 1960 Report of Medical Examination completed in preparation for separation from active duty. Considering these facts, the July 2020 VA examiner opined that it would require speculation to find that the Veteran’s conceded exposures in service to chemicals, asbestos, and jet fuel had any effect, alone or combined, on the Veteran’s subsequent development of COPD. The July 2020 VA examiner cited to medical literature noting that between 80 and 90 percent of all cases of COPD are directly associated to tobacco use and are not associated with respiratory infections. The VA examiner concluded that it was more likely than not that the Veteran’s COPD and asthma were caused by the Veteran’s long and significant history of tobacco exposure. The Board finds the July 2020 VA examiner’s medical opinion to be well-reasoned, appropriately reliant on peer-reviewed medical literature, and based on a complete review of the Veteran’s medical history and treatment, the Veteran’s lay statements, and his service records. Accordingly, the July 2020 VA examiner’s opinion is afforded great probative weight. To the extent the Veteran asserts a nexus between his pulmonary disorder and service, he is not competent to do so, as rending such an opinion requires medical expertise. Thus, the most probative evidence of record demonstrates no nexus between the Veteran’s pulmonary disorders and service, and element three of service connection is not established. Accordingly, a preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, Associate Counsel 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.