Citation Nr: 21062887 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-54 271 DATE: October 12, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD), claimed as a breathing condition is denied. FINDINGS OF FACT 1. The Veteran's COPD was not incurred during his period of active service; the Veteran's diagnosed COPD was not caused by his active service. 2. The Veteran's COPD was not caused or aggravated by his service-connected ischemic heart disease (IHD). CONCLUSION OF LAW The criteria for service connection for COPD are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from December 1968 to April 1972. During his time in service, the Veteran served in Thailand at the Udorn Royal Thai Air Force Base and in Korea. The Veteran passed away in November 2016. The Appellant filed for substitution in July 2017. A September 2017 notified that Appellant that she was a verified substitute claimant and that the Veteran's outstanding appeals would continue with her as the new claimant. In July 2018, the Appellant testified before the undersigned at a Board hearing held via videoconference. A transcript of that hearing is of record. The Appellant's claim was previously before the Board in March 2019, but was remanded for a medical opinion to address whether the Veteran's IHD caused or aggravated his respiratory condition. In April 2021, a VA examiner reviewed the Veteran's claims file and provided opinions that the respiratory condition was not caused or aggravated by his service-connected IHD. The examiner provided well-reasoned and separate rationales for the causation and aggravation prongs of a service connection claim. The opinions are adequate. In July 2021, the claim was remanded to obtain a medical opinion concerning whether the Veteran's claimed respiratory disorder was incurred during or caused by his period of active service, to include exposure to herbicides and jet fumes. In August 2021, a VA examiner reviewed the Veteran's claims file and provided the requested opinion, along with a well-reasoned rationale. The opinion is adequate. Accordingly, the Board finds there has been substantial compliance with the remand instructions. See Stegall v. West, 11Vet. App.268, 271 (1998). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. 1. Entitlement to service connection for COPD, claimed as a breathing condition The Appellant contends that that the Veteran's COPD was caused by his exposure to Agent Orange and jet fumes during his period of active service. Alternatively, the Appellant contends that the Veteran's COPD was caused or aggravated by his service-connected IHD. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). When a disease is first diagnosed after service, service connection is warranted for that condition if the competent evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran's medical records and April 2021 VA medical opinion establish a diagnosis of COPD. In a July 2018 hearing, the Appellant testified that the Veteran felt his respiratory symptoms began during his period of active service as a result of exposure to herbicides and exposure to jet fumes as plane mechanic. VA regulations provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed to herbicides unless there is affirmative evidence to establish that the veteran was not exposed. 38 C.F.R. § 3.307(a)(6)(iii). Certain diseases are deemed associated with herbicide exposure under current law. If a veteran did not serve in the Republic of Vietnam during the Vietnam era, actual exposure to herbicides must be verified through appropriate service department or other sources in order for the presumption of service connection for an herbicide-related diseased under 38 C.F.R. § 3.309 (e) to be applicable. Exposure to herbicides is not presumed in such instances. However, once exposure to herbicides has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. The Veteran's exposure to herbicides including Agent Orange was acknowledged in a March 2019 Board Decision. However, the list of diseases identified for presumptive service connection does not include COPD. 38 C.F.R. § 3.309(e). Accordingly, the Veteran was not eligible for presumptive service connection. Although service connection for COPD may not be granted on a presumptive basis, the Veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In addition, the Appellant's testimony regarding the Veteran's contentions that his respiratory condition began during active service as a result of breathing in jet fumes during his period of active service is also a claim for direct causation. Following a review of the Veteran's service and medical treatment records, a VA medical examiner opined that it was less likely than not that the Veteran's current COPD was incurred during or caused by his exposure to Agent Orange or exposure to jet fumes. The VA examiner opined that the Veteran's COPD was not diagnosed until decades after his completion of active service. The examiner explained that if COPD was due to exposure events in service, the diagnosis would have been made in service or in the immediate years afterwards, and the Veteran was not diagnosed until decades later. Additionally, the Veteran's VA treatment records do not report a diagnosis of COPD until January 2011. The VA examiner further reasoned that the Veteran's COPD would have been diagnosed more proximately to his completion of active service if it was incurred during or caused by his period of active service. The Veteran's service treatment records are silent for respiratory complaints. His April 1972 Report of Medical Examination at separation is silent for complaints or diagnosis of a respiratory disability. Finally, the examiner noted: Tobacco abuse is well associated with COPD development. The veteran had a history of tobacco abuse. It is more likely that this tobacco abuse contributed to the etiology of his COPD and less likely than not due to any respiratory condition during service. The August 2021 opinion is well-reasoned and based upon a review of the Veteran's claims file and is probative evidence against the Appellant's claim. At present, the evidence of record does not contain a medical opinion or other evidence establishing that the Veteran's COPD was incurred during or caused by his period of active service, including his exposures. The preponderance of the evidence is against the claim, direct service connection for COPD is not warranted. Further, in April 2021, the VA obtained a medical opinion regarding whether ot not the Veteran's current COPD was caused or aggravated by his service-connected IHD. The VA opinion determined it was less likely than not that the Veteran's COPD was caused or aggravated by his service-connected IHD. Regarding causation, the examiner reasoned again that the Veteran's COPD was most likely caused by a history of smoking and not IHD. Regarding aggravation, the examiner also stated that the Veteran's COPD was the result of damage to the lung parenchyma, and it was less likely than not that IHD would lead to further damage of the lung parenchyma to make COPD worse. The April 2021 opinion is well-reasoned and based upon a review of the Veteran's claims file and is probative evidence against the Appellant's claim. The examiner provided separate rationales for the causation and aggravation prongs of a secondary service connection claim. Atencio v. O'Rourke, 30 Vet. App. 74 (2018). At present, the evidence of record does not contain a medical opinion or other evidence establishing that the Veteran's COPD was caused or aggravated by his service-connected IHD. The preponderance of the evidence is against the claim, entitlement to secondary service connection for COPD is not warranted. The Board acknowledges the Appellant's contentions that the Veteran's COPD was incurred during his period of active service, or alternatively, caused or aggravated by his service-connected IHD. Lay persons are competent to provide opinions on some medical issues. Kahana, 24 Vet. App. at 435. However, determining the etiology of the Veteran's COPD requires medical inquiry into the Veteran's anatomical and physiological functioning. With regard to the specific issues in this case, whether the Veteran's COPD was incurred during his period of active service, or alternatively, caused or aggravated by his service-connected IHD, falls outside the realm of knowledge of the Appellants in this case. See Jandreau, 492 F.3d at 1377 n.4. Such internal processes are not readily observable and are not within the competence of the Appellant in this case, who has not been shown by the evidence of record to have medical training or skills. As a result, the probative value of the lay assertions is low. The opinion of the April 2021 and August 2021 VA examiner are of significantly more probative value. The Board concludes that the preponderance of the evidence is against the claim for service connection for the Veteran's COPD. The benefit of the doubt rule therefore does not apply, and service connection for this disability is not warranted. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Riordan, 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.