Citation Nr: 21005210 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 15-24 607 DATE: January 29, 2021 ORDER Entitlement to service connection for tremors of the left upper extremity associated with Parkinsonism is granted. Entitlement to service connection for tremors of the right upper extremity associated with Parkinsonism is granted. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era. 2. The Veteran has a current diagnosis of Parkinsonism, manifested by tremors of the bilateral upper extremities. 3. The preponderance of the evidence is against a finding that the Veteran’s current COPD was incurred in active service or is causally related to or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tremors of the left upper extremity associated with Parkinsonism have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for tremors of the right upper extremity associated with Parkinsonism have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for COPD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from December 1966 to June 1969, including service in the Republic of Vietnam. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, denied service connection for tremors of the left and right upper extremities and COPD. In May 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter was most recently before the Board in September 2020. At that time, the Board remanded the Veteran’s service connection claims for tremors of the left and right upper extremities and COPD, as well as a claim for service connection for skin cancer, for further evidentiary development. The Board notes that the RO granted service connection for scars, residual status post removal squamous cell carcinoma (claimed as skin cancer) and assigned a 10 percent rating, effective January 5, 2016, in a November 2020 rating decision. That award constitutes a full grant of the benefit sought on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning “downstream” issues, such as the compensation level assigned for the disability and the effective date). The Board notes that in addition to the issues discussed immediately above, the Veteran subsequently appealed the issues of entitlement to service connection for ischemic stroke and abdominal aortic aneurysm. As the Veteran has requested a hearing on those issues, they are part of a separate appeal stream and will be the subject of a separate Board decision. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Service connection is presumed for certain diseases, not currently including COPD, if a veteran was exposed to an herbicide agent, such as Agent Orange, during active service if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). On January 1, 2021, the National Defense Authorization Act added three disorders to the list of diseases presumptively associated with exposure to herbicide agents. Specifically, it amended 38 U.S.C. § 1116(a)(2) to include Parkinsonism. Exposure to Agent Orange is presumed for veterans who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii). Despite the presumptive regulations, a claimant may establish service connection based on exposure to Agent Orange with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for tremors of the left upper extremity associated with Parkinsonism is granted. 2. Entitlement to service connection for tremors of the right upper extremity associated with Parkinsonism is granted. An August 2018 private medical opinion shows a current diagnosis of paralysis agitans/Parkinsonism, manifested by tremors of the bilateral upper extremities. See August 2018 private medical opinion from Dr. J.E., received September 2018. As set forth above, included in the diseases subject to the presumptive provisions related to herbicide agent exposure under the recently amended 38 U.S.C. § 1116(a)(2) is Parkinsonism. As the Veteran is presumed to have been exposed to herbicide agents during active duty, and he has a current diagnosis of Parkinsonism, medical nexus is presumed by a matter of law. Absent evidence to the contrary, service connection is warranted for tremors of the left and right upper extremities associated with Parkinsonism. In sum, resolving all doubt in favor of the Veteran, the weight of the evidence establishes that the Veteran has a diagnosis of Parkinsonism, manifested by tremors of the bilateral upper extremities, and that he had presumed herbicide agent exposure during service. 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.102, 3.307(a)(6). Therefore, service connection is warranted for tremors of the left and right upper extremities associated with Parkinsonism, and the Veteran’s claims for service connection are granted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 3. Entitlement to service connection for COPD is denied. The Veteran contends that he developed COPD, and eventually lung cancer, because he was provided with cigarettes to smoke while on active duty and because he increased his cigarette consumption after watching a friend die. He explained that smokers were allowed to take breaks; thus, he smoked the cigarettes he had been issued. He was not a smoker prior to entry onto active duty. He also explained that he smoked to help cope with the death of his friend. Additionally, the Veteran reported exposure to smoke and fires while serving in Vietnam. See May 2018 Transcript of Hearing, pages 4, 14-17. The Veteran’s service treatment records (STRs) are negative for complaints, observations, or treatment regarding a respiratory disability. At his May 1969 separation examination, clinical evaluation of the Veteran’s lungs and chest was normal. See May 1969 Report of Medical Examination. A March 2013 chest X-ray impression report noted COPD with linear scarring of the right lung base. See January 2014 Administrative Note. Dr. J.E. examined the Veteran in August 2018. Dr. J.E. opined that it was more likely than not that the Veteran’s “exposures in Vietnam contributed to and aggravated his [COPD] and lung cancer.” Dr. J.E. noted that the Veteran had been exposed to herbicide agents, jet fuel, combustion products from jet fuel, and cigarette smoke. His opinions were “based upon [his] examination of the veteran, review of records, [his] education, training and experience and upon reasonable medical probability and reasonable medical certainty.” The Veteran was afforded a VA examination in July 2019. The examiner noted a diagnosis of COPD and lung cancer. The Veteran reported that his COPD symptoms began in 1990. After examination of the Veteran and review of the claims file, the examiner rendered a negative etiological opinion regarding the Veteran’s COPD. The examiner opined in pertinent part, In my medical opinion the diagnosed respiratory disability such as lung cancer (not COPD) is related to the exposure to herbicide agents, smoke, and fires while in Vietnam. The medical literature shows that the health conditions due to herbicides exposure are non-Hodgkin’s lymphoma, soft tissue sarcoma, chronic lymphocytic leukemia, Hodgkin’s disease, porphyria cutanea tarda (PCT), multiple myeloma, acute and subacute peripheral neuropathy, prostate cancer, cancers of the lung, bronchus, larynx and trachea, and type II diabetes mellitus. Regarding secondary service connection, the examiner opined, In my medical opinion . . . the diagnosed breathing disability was less likely than not caused by the Veteran’s service connected PTSD. The medical literature does not support that COPD or lung cancer [are] cause[d] by PTSD. The medical literature does not support that COPD or lung cancer can aggravates PTSD. Pursuant to the Board’s September 2020 remand instructions, a VA addendum medical opinion was obtained in October 2020. After review of the claims file, the examiner determined that the Veteran’s COPD was not causally related to his active service. The examiner opined in pertinent part, The veteran has a significant tobacco abuse history of 50 pack year. The veteran’s separation exam noted normal lungs. The veteran’s COPD was diagnosed many years after service and unrelated to the herbicide agents, smoke, and fires. Herbicide agents are not linked to the development of COPD. Regarding secondary service connection, the examiner determined that the Veteran’s COPD was not caused or aggravated by his service-connected PTSD. The examiner opined the following: The conditions of COPD and PTSD are not medically related. The COPD is a separate entity entirely from the PTSD and unrelated to it. A thorough review of medical literature failed to demonstrate a causal relationship. There are many people, in the general population, who have been diagnosed with PTSD and on medication for the condition and do not use tobacco. Smoking is a choice. A nexus has not been established. While there is evidence veteran had a 50 pack year history of smoking, there is no evidence to suggest COPD aggravation beyond natural progression by the PTSD. There are many coping modalities/strategies for PTSD and smoking, being a choice, nonetheless aggravated the current COPD. COPD is a chronic progressive disease in nature. No evidence of aggravation beyond natural progression. After a review of the evidence, the Board finds that service connection for COPD is not warranted. With regard to the first element of a service connection claim, the evidence shows that the Veteran has a current diagnosis of COPD. VA treatment records, as well as the August 2018 private medical opinion and July 2019 VA examination, noted a diagnosis of COPD. In addressing the second element, the Board finds in-service exposure to Agent Orange. As noted supra, the Veteran’s active service included service in the Republic of Vietnam during the Vietnam era. Absent evidence to the contrary, he is legally presumed to have been exposed to herbicide agents. With respect to the third element, the nexus requirement, the Board finds that the Veteran’s COPD was not causally related to his active duty or any incident therein. In that regard, the Board assigns great probative weight to the October 2020 VA medical opinion. After reviewing the Veteran’s claims file in its entirety, the examiner concluded that the Veteran’s COPD was not causally related to active duty, to include herbicide agent exposure and exposure to smoke and fires. The examiner provided a reasoned conclusion and clear rationale to support her determination that the Veteran’s COPD was not causally related to service. The Board assigns less probative weight to the August 2018 private medical opinion from Dr. J.E., as the opinion is conclusory in nature and unsupported by rationale. In addition, the Board assigns less probative weight to the July 2019 VA examination, which was found to be inadequate in the September 2020 Board remand to the extent the examiner failed to properly address the issue of secondary service connection and whether the Veteran’s COPD was causally related to herbicide agent, smoke, and fire exposure. The Board also assigns less probative weight to the Veteran’s contentions indicating that his COPD was caused by active duty. Although the Veteran is competent to describe his symptoms, he is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have had medical training or skills. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Questions of competency notwithstanding, the Board assigns more probative weight to the findings of the October 2020 VA examiner, given her clinical expertise and the rationale she provided. The Board also finds that service connection is not warranted on a secondary basis. As set forth above, the Veteran contends that his COPD is related to smoking and that he began smoking in service to cope with the death of a friend. In essence, the argument is that COPD is secondary to his service-connected PTSD with smoking acting as an intermediate step between the two and, therefore, service connection is warranted under 38 C.F.R. § 3.310(a). The Board has carefully considered this contention. However, the Board finds that it is without merit. First, unlike obesity, smoking has not been expressly recognized by VA as an “intermediate step” in determining whether secondary service connection is warranted. See generally VAOPGCPREC 1-2017; Marcelino v. Shulkin, 29 Vet. App. 155 (2018) (addressing that obesity may be an intermediate step in a service connection claim). Second, the use of tobacco during service cannot be the basis of an award of benefits in this case. See 38 U.S.C. § 1103; 38 C.F.R. § 3.300 (prohibits service connection for any disability related to chronic tobacco use (e.g. smoking) for claims received by VA after June 9, 1998). Further, even assuming service connection could be warranted on such a basis (see 38 U.S.C. § 1103; 38 C.F.R. § 3.300), the evidence would need to reflect at a minimum that (1) a service-connected disability or disabilities caused the Veteran to smoke, (2) the smoking was a substantial factor in causing another disability, and (3) the disability would not have occurred but for the smoking caused by the Veteran’s service-connected disability or disabilities. Id. In this case, the evidence has not shown that the Veteran’s PTSD caused him to smoke. In fact, although the Veteran contends that he smoked to cope with the death of a friend, he has also alleged that he was provided with cigarettes to smoke while on active duty and that smokers were allowed to take breaks; thus, he smoked the cigarettes he had been issued. See May 2018 Transcript of Hearing, pages 4, 14-17. Other than the Veteran’s statements, competent, credible evidence has not been presenting linking PTSD to past history of smoking. (Continued on the next page)   The Board assigns greater probative weight to the STRs and the many years intervening service and the first indication of respiratory disorder and medical findings for COPD. In addition, the Board also assigns greater probative weight to the October 2020 VA medical opinion, as the examiner reviewed the Veteran’s claims file in its entirety. After considering the record, the examiner concluded that the Veteran’s COPD was not caused or aggravated by his service-connected PTSD. The examiner provided a reasoned conclusion and clear rationale to support her determination that the Veteran’s COPD was not secondarily related to or aggravated by his PTSD. There is no medical opinion evidence to the contrary. The Board assigns less probative weight to the July 2019 VA examination, as well as the Veteran’s hearing testimony indicating that his COPD was secondary to his service-connected PTSD, for the reasons explained above. Based on the foregoing, as the probative evidence is against the Veteran’s claim of service connection for COPD, the benefit-of the-doubt rule is not for application. See 38 U.S.C. § 5107, 38 C.F.R. § 3.102. Accordingly, the Board finds that the elements of service connection are not met, and the Veteran’s claim for COPD is denied. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ruddy, 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.