Citation Nr: 21065395 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-14 973 DATE: October 26, 2021 ORDER Service connection for obstructive pulmonary disease (COPD) is denied. REMANDED Service connection for bronchitis. Service connection for asthma. Service connection for left lower extremity peripheral neuropathy. Service connection for right lower extremity peripheral neuropathy. FINDINGS OF FACT The Veteran does not have COPD. CONCLUSIONS OF LAW The criteria for service connection for COPD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to October 1968. The case is on appeal from a July 2014 rating decision. In February 2020, the Veteran testified at a Board hearing. In a May 2021 decision, the Board reopened and remanded the previously denied claims of service connection for bronchitis and asthma. The Board also remanded the claims of service connection for COPD and bilateral peripheral neuropathy of the lower extremities to afford the Veteran VA examinations pursuant to McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran contends, in pertinent part, that his COPD is the result of his exposure to herbicide agents such as Agent Orange during service in Vietnam. Alternatively, the Veteran contends that his COPD is the result of his exposure to "laterite soil dust" during service in Vietnam as his respiratory problems began during such period. Although a February 12, 2014 primary care note shows that the Veteran's respiratory symptoms were assessed as asthma/COPD, a review of the medical evidence of record reflects that, historically, the Veteran's VA and private health providers have not rendered a diagnosis of COPD. See VA treatment records dated on February 5, 2002; May 25, 2005; September 11, 2007; May 16, 2011; and May 26, 2011, all indicating that the Veteran does not have COPD. See also private treatment records from Arizona Respiratory Medicine dated on September 15, 2016; October 4, 2016; April 25, 2017; December 27, 2017; and December 19, 2018, also indicating that the Veteran does not have COPD. On December 27, 2017, the Veteran indicated that "to his knowledge [his symptoms have] not been diagnosed as COPD." In its May 2021 remand, the Board requested a VA examination to identify multiple respiratory conditions, to include COPD, and in light of the February 2014 VA primary care note showing that his respiratory symptoms were assessed, in pertinent part, as COPD. Pursuant to the Board's remand, the Veteran was afforded a VA examination in July 2021. The VA examiner conducted a comprehensive review of the Veteran's medical history and opined that a diagnosis of COPD is not warranted. The examiner indicated that the Veteran denied a diagnosis of COPD. In sum, upon review of the entire medical evidence of record, to include previous respiratory function tests, and the in-person examination and interview, the VA examiner was unable to confirm a diagnosis of COPD. In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. As previously noted, while there is an isolated VA progress note in February 2014 assessing the Veteran's symptoms as asthma and COPD, the remaining VA and private competent medical evidence corresponding to treatment received from February 2002 to December 2018, does not account for a diagnosis of COPD. Moreover, the February 2014 progress note assessing his symptoms as asthma/COPD appears to be a provisional diagnosis which was subsequently ruled out. Additionally, the July 2021 VA examination report does not reflect that the Veteran has had a diagnosis of COPD at any time throughout the pendency of the appeal. The foregoing was not only communicated by the Veteran to his private provider during a December 2017 follow up appointment but was also confirmed by the Veteran during his July 2021 VA examination. In sum, the record reflects that the Veteran has not had a current diagnosis of COPD at any time during the pendency of the claim or recent to the filing of the claim. See Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321. Here, the July 2021 VA examination and opinion, along with the above-mentioned medical evidence of record, is the most persuasive evidence. After reviewing the Veteran's medical history and conducting an in-person physical examination and interview, the July 2021 VA examiner determined that a diagnosis of COPD is not warranted. This is supported by the additional medical evidence of record which does not account for a diagnosis of COPD. Accordingly, the first element of service connection has not been met in the present claim. Without evidence of a current diagnosis of COPD, the Board needs not address the other elements of service connection. See Degmetich v. Brown, 104 F.3d 1328 (1997) (the existence of a current disability is the cornerstone of a claim for VA disability compensation); Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007) (stating that "[w]ithout a current disability, of course, there can be no service connection and, thus, no disability compensation."). The Board acknowledges that the Veteran is seeking service connection for a respiratory disability, to include COPD. See March 2014 statement in support of claim. The Board will address other respiratory issues in the remand portion of this decision. However, while the Veteran may have believed at some point that he had a diagnosis of COPD, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Therefore, the Veteran is not competent to provide a diagnosis of COPD. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and service connection for COPD is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although the Board is remanding other claims for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). REASONS FOR REMAND 1. Service connection for bronchitis. 2. Service connection for asthma. In the May 2021 remand, the Board noted that the Veteran attributes his respiratory conditions to either his exposure to herbicide agents such as Agent Orange, or to "laterite soil dust" which he asserts he was constantly exposed to while serving in Vietnam. Pursuant to the May 2021 Board's remand, the Veteran was afforded a VA examination in July 2021. The examination report contains an extensive description of the Veteran's medical history, to include multiple VA assessments of asthma and bronchitis. While the VA examiner acknowledged a diagnosis of asthma, she indicated that the Veteran does not have a diagnosis of bronchitis. The examiner noted that the Veteran "denies chronic bronchitis." First, the Board notes that the "chronic" standard used in the opinion is not the correct one. In service connection claims, the term disability refers to impairment of earning capacity resulting from an in-service injury or disease. See 38 C.F.R. § 4.1; Saunders, 886 F.3d at 1363; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). In other words, a disability needs not be necessarily chronic and the current disability element is met if there is sufficient proof that a disability impairs a Veteran's earning capacity. A review of the Veteran's private and VA treatment records show multiple assessments and treatment for bronchospasms and bronchitis throughout the years and clarification as to whether a current diagnosis of bronchitis is in fact warranted or not still needs to be addressed in light of the medical evidence of record. In Romanowsky, the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. In addition, while the Board finds that the examiner's opinion regarding the nexus element of the claim with respect to the Veteran's presumed exposure to herbicide agents seems adequate, the examiner failed to address the Veteran's alternate etiology theory for his disability. As noted in the May 2021 Board's remand, the Veteran also contends that his respiratory problems are the result of his exposure to laterite soil dust during service in Vietnam, which he asserts is classified as hazardous material, and that he has experienced respiratory problems ever since his exposure. For the reasons set forth above, the Board finds that a remand is warranted for substantial compliance with the previous Board's remand directives, to include a separate VA examination and opinion from a qualified medical professional to comment on the nature, etiology, and extent of the claimed respiratory disabilities. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Service connection for left lower extremity peripheral neuropathy. 4. Service connection for right lower extremity peripheral neuropathy. The Veteran contends that his bilateral peripheral neuropathy of the lower extremities had its onset during service and that is related to his presumed exposure to herbicide agents. In its May 2021 decision, the Board noted that the Veteran reported having the onset of neuropathy symptoms during active service and that such symptoms have continued since service; that his bilateral lower extremities disability, later diagnosed as chronic neuropathy, has been present for 40 years; that ever since service his feet keep hurting and feeling numbed; and that the symptoms that he experienced in Vietnam are the same symptoms he currently experiences. In that regard, the Board notes that service treatment records (STRs) show that towards the end of his enlistment, the Veteran complained of "sore on both feet," left greater than right, sore in the back of toe, arch, below ankle, and accompanied by a burning sensation before they hurt. See July 8, 1968 progress notes. The health provider noted that the soreness "appears" pustular. Approximately two months later the Veteran was released from active duty. VA treatment records reflect that on May 1, 2009, the Veteran complained of "sore feet," left greater than right, with pain in the arch area which extends upward, and also pain in the medial side of the ankle. In an April 2019 private treatment note, the Veteran's neurologist, Dr. A.H.A indicated that she suspects that the Veteran's advanced peripheral neuropathy is caused by Agent Orange. The May 2021 Board's remand directives requested an opinion from a qualified medical professional and, to the extent possible, address such statements. The Veteran was afforded a VA examination in July 2021. The examination report contains a diagnosis of chronic inflammatory demyelinating polyneuropathy (CIPD). The VA examiner opined that the claimed condition was less likely than not incurred or caused by the Veteran's service. In support of her opinion, the examiner indicated that STRs are silent for any symptoms related to neuropathy and that the Veteran's complains of sore feet in 1968 endorsing pain and burning are more consistent with a fungal infection. The examiner further noted that the Veteran did not seek treatment for foot pain until December 2004, at which time he denied tingling and numbness and testing revealed intact sensation. In sum, the examiner indicated that records are silent for specific symptoms of neuropathy until 2011. The examiner also indicated that the Veteran's statements as to the timeline of symptoms since Vietnam are the Veteran's subjective statements which are not supported by the medical records. First, the Board notes that the July 2021 VA examiner's opinion appears to have relied on an absence of specific documented treatment and complains of neuropathy during service without considering that the Veteran's complains were made towards the end of his enlistment and for which the Veteran was not able to receive additional care prior to separation. This is particularly relevant in the present appeal as approximately 41 years later (i.e., 2009), and prior to a final diagnosis of neuropathy in 2011, the Veteran reported almost identical bilateral foot symptoms to his VA provider (sore feet; left greater than right; with pain in the arch area which extends upward, and pain in the medial side of the ankle) without evidence showing the presence of fungal infection. While the examiner extensively discussed the Veteran's medical records, the examination report does not make reference to this particular and relevant report. Second, the examiner also appears to have relied on an absence of evidence of documented treatment and complains after service and during the timeline reported by the Veteran without explaining why, as a medical matter, the Veteran would have sought treatment or complained of the condition, or why an absence of treatment (as opposed to symptoms) was otherwise medically significant. See McKinney v. McDonald, 28 Vet. App. 15, 30 (2016). In this regard, the examiner appears to have disregarded the Veteran's lay statements as "subjective statements" based on the absence of post-service treatment records. As previously noted, the Veteran asserts that his symptoms have continued since service for the last 40 years. See June 2013 VA progress notes. 38 C.F.R. § 3.303(a) provides that a Veteran's lay reports of symptoms that started in service and continued since service is potentially favorable evidence that must be taken into consideration. See also Flynn v. Brown, 6 Vet. App. 500, 503 (1994). Ultimately, the VA examiner failed to address the April 2019 private statement from the Veteran's attending neurologist suggesting a potential link between the advanced bilateral peripheral neuropathy and his presumed exposure to Agent Orange. For the reasons set forth above, the Board finds that the July 2021 VA examination is not wholly adequate to decide the Veteran's claims at this time and a remand is warranted for another VA examination and opinion by a neurology specialist to assess these fundamental aspects of the claim. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate medical professional to determine the nature and etiology of the Veteran's respiratory conditions. The examiner should first identify whether the Veteran has a current respiratory diagnosis, which may include asthma and/or bronchitis. The examiner must conduct all necessary diagnostic testing unless it can be explained why such testing is not medically necessary. If any of the foregoing diagnoses is not warranted, it should be explained why this is so. The examiner is then asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability), that any identified asthma and/or bronchitis had its onset during service or is otherwise related to service. Consideration should be given to: (1) the Veteran's lay statements indicating the onset of respiratory symptoms during service; (2) his lay statements indicating that he has suffered from respiratory problems ever since; (3) his statements that "laterite soil dust" is classified as a hazardous material to which he was constantly exposed to during service in Vietnam; and (4) the February 5, 2002 private medical records indicating "exacerbation" of bronchospasms, which in turn suggests that the condition predates such exacerbation episode. A complete rationale must be included for any opinion reached. 4. Then, schedule the Veteran for a VA examination by a neurology specialist to comment on the nature and etiology of his claimed peripheral neuropathy. The examiner should first identify whether the Veteran has a current diagnosis of bilateral peripheral neuropathy of the lower extremities. The examiner is then asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability), that any identified bilateral peripheral neuropathy of the lower extremities had its onset during service or is otherwise related to the Veteran's service, to include his presumed exposure to herbicide agents such as Agent Orange. Consideration should be given to: (1) the similarity of symptoms reported in July 1968 during service, and later in May 2009 to his VA provider; (2) the Veteran's June 2013 statements indicating that his symptoms have continued mostly the same for 40 years; (3) the April 2019 statements from the Veteran's attending neurologist indicating that she suspects that his advance peripheral neuropathy is caused by Agent Orange; and (4) the reasons for remand set forth above. A complete rationale must be included for any opinion reached. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan, 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.