Citation Nr: 21061605 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 16-24 522 DATE: October 4, 2021 ORDER Entitlement to service connection for an upper respiratory condition, to include chronic obstructive pulmonary disease (COPD), emphysema, and bronchitis, to include as due to herbicide and/or asbestos exposure, is denied. Entitlement to total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that COPD began during active service or is otherwise related to service, to include herbicide and/or asbestos exposure. 2. The Veteran did not have any service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD, to include as due to herbicide and/or asbestos exposure, have not been met. 38 U.S.C. §§ 1103, 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.300, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to February 1969. The Veteran died on September [REDACTED], 2015. The appellant is the Veteran's surviving spouse. In January 2019, the appellant testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In December 2020, the Board remanded the claim for further development. The Board observes that the Veteran has been diagnosed with many respiratory conditions. Considering Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board finds that it is appropriate to recharacterize the claim as entitlement to service connection for an upper respiratory condition, to include COPD, emphysema, and bronchitis. 1. Entitlement to service connection for COPD Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the record must contain: (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). Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam War will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The appellant contends that the Veteran's COPD is related to service, or in the alternative, due to herbicide and/or asbestos exposure. The Veteran had been diagnosed with COPD, emphysema, and bronchitis. As such, element one under Shedden is met. The Veteran's service treatment records (STRs) document in-service complaint and treatment for cough and chest cold. As such, element two under Shedden is met. During his September 1965 Report of Medical Examination, Pre-Induction exam, the Veteran's lungs and chest were clinically normal. In September 1966, the Veteran was seen for a cough and chest cold. The Veteran stated that his sore throat had improved, and his diarrhea had subsided. Chest x-ray appeared to have sl consolidation in the right lower lobe (RLL); however, this was not confirmed clinically. The Veteran's chest was clear. During his September 1968 Separation exam, the Veteran's lungs and chest were clinically normal. In February 2008, the Veteran was seen at the St. Louis MO VAMC-JC Division. The Veteran complained of cough with yellow/green sputum and yellow/green nasal discharge. In December 2008, the Veteran was seen for a pulmonary consult. The examiner confirmed the Veteran's COPD, obstructive chronic bronchitis with acute exacerbation, and emphysema diagnoses. During her 2019 Board hearing, the appellant stated that in the late 1990s or early 2000s, the Veteran began having COPD symptoms to include coughing, breathing, and, later on, he used oxygen. She stated that the Veterans' healthcare providers suggested that exposure to Agent Orange played a role in the Veteran developing COPD. The appellant also stated that the Veteran was a smoker, and he was instructed to stop smoking. However, he did not. In December 2020, the Board remanded the claim for further development. The Board noted that the Veteran was treated for a cough and chest cold in September 1966. However, a VA medical opinion addressing whether the respiratory disorder was related to the treatment for a cough and chest cold, as well as exposure to herbicide agents was not obtained. Additionally, in December 2012, the Veteran claimed that his respiratory disorder was related to asbestos exposure. The Board instructed VA to ask the appellant to identify the nature of the Veteran's in-service exposure to asbestos. In February 2021, VA obtained an addendum opinion to determine the nature and etiology of the Veteran's disability. The examiner was asked to opine whether it is at least as likely as not that COPD, emphysema, and any other respiratory disorder that the Veteran had from December 2012 to the date of his death are related to an in-service injury, event, or disease, including in-service herbicide-agent exposure and the September 1966 cough and chest cold treatment. The examiner opined that the claimed condition is less likely than not incurred in or caused by the claimed in service injury, event, or illness. The examiner stated that COPD is a chronic inflammatory lung disease that causes obstructed airflow from the lungs. Symptoms include breathing difficulty, cough, mucus (sputum) production, and wheezing. COPD is typically caused by long-term exposure to irritating gases or particulate matter, most often from cigarette smoke. Emphysema and chronic bronchitis are the two most common conditions that contribute to COPD. These two conditions usually occur together and can vary in severity among individuals with COPD. Chronic bronchitis is inflammation of the lining of the bronchial tubes which carry air to and from the air sacs (alveoli) of the lungs. It is characterized by daily cough and mucus (sputum) production. Emphysema is a condition in which the alveoli at the end of the smallest air passages (bronchioles) of the lungs are destroyed as a result of damaging exposure to cigarette smoke and other irritating gases and particulate matter. The main cause of COPD in developed countries is tobacco smoking. In the vast majority of people with COPD, the lung damage that leads to COPD is caused by long-term cigarette smoking. Other irritants can cause COPD, including cigar smoke, secondhand smoke, pipe smoke, air pollution, and workplace exposure to dust, smoke, or fume. The examiner stated that after reviewing the medical records, there was no evidence available showing that the Veteran developed recurrent chronic symptoms of cough or other symptoms of bronchitis during military service. The medical records noted that the Veteran started having symptoms of chronic cough and productive of sputum in 2008. The examiner stated that the Veteran was evaluated and was diagnosed with COPD/chronic obstructive pulmonary disease. It was noted that the Veteran had a history of tobacco use disorder with extensive history of smoking for about 40 years. The examiner stated that smoking is the most common cause of COPD, chronic bronchitis, or emphysema. He further stated that there was no evidence in medical literature supporting that herbicides could cause COPD, chronic bronchitis, or emphysema. Hence the Veteran's COPD is less likely caused by exposure to herbicides during military service. Regarding asbestos exposure, the examiner stated that asbestosis of lung causes lung tissue scarring with plaques, and there was no evidence in imaging studies indicating if the Veteran had these findings of asbestosis of lungs since the diagnosis of COPD was in 2008. Hence, the Veteran's COPD is less likely caused by asbestos exposure. The examiner stated, due to the above facts, it is less likely than not that the COPD, emphysema, and any other respiratory disorder that the Veteran had from December 2012 to the date of his death are related to an in-service injury, event, or disease, including in-service herbicide-agent exposure and his September 1966 cough and chest cold treatment. The Board acknowledges that the Veteran and the appellant and her representative's statements that the Veteran's COPD is due to service, to include exposure to herbicide agents. However, COPD is not a disability entitled to presumptive service connection based on exposure to herbicide agents. 38 C.F.R. § 3.309(e). The Board acknowledges that where the evidence does not warrant presumptive service connection, a Veteran may still establish service connection with proof of direct causation. See, e.g., Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Based on the evidence of record, the Board finds that service connection for the Veteran's COPD is not warranted on a direct basis. The Board notes that the Veteran's STRs document complaint and treatment for a cough and chest cold. However, during his September 1968 Separation exam, his lungs and chest were clinically normal. Additionally, the 2021 VA examiner opined that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness, to include herbicide and asbestos exposure and the September 1966 cough and cold treatment. The examiner stated that there was no evidence available supporting that the Veteran developed recurring chronic cough symptoms or other symptoms of bronchitis during military service. The medical records noted that the Veteran started having symptoms of chronic cough and productive of sputum in 2008 when he was evaluated and diagnosed with COPD. Regarding asbestos exposure, the examiner stated that asbestosis of lung causes lung tissue scarring with plaques, and there was no evidence in imaging studies indicating if the Veteran had these findings. Additionally, there was no evidence in medical literature supporting that herbicides could cause COPD, chronic bronchitis, or emphysema. The examiner stated that the Veteran had a 40-year history of extensive smoking, and the most common cause of COPD is smoking. Therefore, the etiology of the Veteran's COPD is likely caused by or related to smoking. The Board also notes that the first medical evidence of COPD, chronic bronchitis, or emphysema was in 2008, i.e., 39 years after discharge from service. The fact that there were no records of any complaints or treatments involving the Veteran's respiratory disability for many years weighs against the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints). As to COPD being attributed to the Veteran's history of smoking, Congress has prohibited the grant of service connection for disability due to the use of tobacco products. 38 U.S.C. § 1103(a); see also 38 C.F.R. § 3.300. Specifically, for claims received by VA after June 9, 1998 (as is the case here), a disability will not be considered service-connected on the basis that it resulted from injury or disease attributable to a veteran's use of tobacco products during service. Therefore, the Board finds that element three under Shedden have not been met. The Board has considered the Veteran and the appellant and her representative's statements regarding the etiology of the Veteran's respiratory disability. The Board notes that although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a nexus between respiratory disability and active service is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In the absence of a nexus, the claim for service connection for respiratory disability is denied. In reaching the above 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 Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b). 2. Entitlement to TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any substantially gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. § § 3.340, 3.341, 4.16. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. 38 C.F.R. § 3.340. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § § 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following disabilities will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. § § 3.341, 4.16, 4.19. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16 (a). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Analysis The Veteran and the appellant asserted that the Veteran was unemployable due to his service-connected disabilities. In March 2021, the appellant submitted VA form 21-8940. She stated that the Veteran's COPD, emphysema, and hearing loss prevented him from securing or following any substantially gainful occupation. As addressed above, the Board denied service connection for COPD. Additionally, prior to his death, the Veteran did not have any service-connected disabilities. Therefore, entitlement to TDIU must be denied as there are no service-connected disabilities which could be found to be causing individual unemployability. The Board finds that the preponderance of the evidence is against the claim and the claim must be denied. See Gilbert, supra; 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Moore 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.