Citation Nr: 21067569 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 15-00 201 DATE: November 4, 2021 ORDER Entitlement to service connection for a respiratory disorder is denied. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam and is presumed to have been exposed to herbicide agents in service. 2. A respiratory disorder, to include bronchiectasis and chronic obstructive pulmonary disease (COPD) is not otherwise etiologically related to active duty service, including as a result of exposure to herbicide agents or asbestos 3. Bronchiectasis was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from September 1967 to May1969, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA). In July 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ); a copy of the hearing transcript is of record. In September 2018 and September 2020, the Board remanded the appeal for further development; there was substantial compliance with the remand directives. 1. Entitlement to service connection for a respiratory disorder The Veteran contends that he is entitled to service connection for a respiratory disability, to include bronchiectasis and COPD. In a March 2013 notice of disagreement, the Veteran contends that his respiratory disorders, including bronchiectasis and COPD, are due to asbestos and exposure to Agent Orange in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). There is no specific statutory guidance for asbestos-related claims, nor has VA promulgated any regulations in regard to such claims. VA has, however, issued guidelines for compensation claims based on exposure to asbestos. The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include: (1) a determination as to whether the Veteran's service records demonstrate the Veteran was exposed to asbestos during service; (2) development sufficient to determine whether the Veteran was exposed to asbestos either before or after service; and (3) a determination as to whether a relationship exists between the Veteran's in-service asbestos exposure and the claimed disease. The guidelines provide that the latency period for asbestos-related diseases varies from 10-45 years or more between first exposure and development of disease. It is noted that an asbestos-related disease can develop from brief exposure to asbestos or as a bystander. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The laws and regulations pertaining to Agent Orange exposure provide for a presumption of service connection due to exposure to herbicide agents for veterans who have a disease listed in 38 C.F.R. § 3.309(e), and who served on active duty in the Republic of Vietnam during the Vietnam Era. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a). A disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e) will be considered to have been incurred in service under the circumstances outlined in that section, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a)(6)(iii). Neither bronchiectasis nor COPD are listed in 38 C.F.R. § 3.309(e). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicide agents and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See 59 Fed. Reg. 341 -346 (1994); see also 61 Fed. Reg. 57586 -57589 (1996). The Veteran is presumed to have been exposed to herbicide agents during service in the Republic of Vietnam. However, as noted above, neither bronchiectasis nor COPD are included in the enumerated diseases in 38 C.F.R. § 3.309(e) that are presumed due to herbicide agent exposure. The fact that the Veteran cannot establish entitlement to service connection for bronchiectasis or COPD on a presumptive basis due to herbicide agent exposure does not preclude him from establishing entitlement on a direct incurrence or other basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Indeed, bronchiectasis, but not COPD, is considered a chronic disease for which service connection may be presumed pursuant to 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). The questions for the Board then, are whether the Veteran has a current respiratory disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Or whether the Veteran has a diagnosed bronchiectasis disability that was shown as chronic in service; or, manifested to a compensable degree within a presumptive period following separation from service; or, was noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. For the reasons that follow, the Board finds that service connection for a respiratory disability is not warranted on a direct or presumptive basis. Private treatment records indicate that the Veteran was diagnosed with both COPD and bronchiectasis in March 2008, as evidenced by the November 2019 VA examination report and VA treatment records. The COPD diagnosis was confirmed by private treatment records evaluating the results of an August 2018 pulmonary function test. However, an October 2020 VA opinion indicates that the Veteran's pulmonary function tests showed an obstructive pattern which the VA examiner found to be due to the bronchiectasis. In addition, the October 2020 VA examiner stated that the Veteran's repeated CT scans over the years do not show COPD finding, but rather bronchiectasis. The examiner also opined that since the Veteran does not have a smoking history, it is less likely that he ever had COPD. She concluded that in her opinion, that the Veteran's pulmonary diagnosis is bronchiectasis. While there is conflicting evidence of whether the Veteran has, or ever had, a COPD diagnosis, resolving the benefit of the doubt in the Veteran's favor, the Board will address service connection for both COPD and bronchiectasis diagnoses. As an initial matter, while bronchiectasis is a chronic disease for which service connection may be presumed pursuant to 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a), bronchiectasis was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. VA and private treatment records show the Veteran was not diagnosed with bronchiectasis until March 2008, decades after his separation from service and decades outside of the applicable presumptive period. Further, the Veteran has not reported having experienced symptoms of bronchiectasis since service or during the presumptive period and consistently since. Therefore, there is no basis to grant service connection for bronchiectasis on a presumptive basis as a chronic disease. Service connection may still be granted on a direct basis for bronchiectasis and COPD; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's bronchiectasis and COPD and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. With respect to the Veteran's claimed exposure to asbestos during service, the RO sent the Veteran a questionnaire in January 2017 that requested details about his exposure to asbestos during military service. The Veteran provided his response in a letter received in February 2017 and asserted that he was exposed to asbestos during his service in Vietnam, to include from the Army barracks. The Board notes that his service records do not show evidence of asbestos exposure during service, to include as result his Vietnam service. In July 2018 the Veteran submitted a medical treatise which discusses a relationship between Veterans who sprayed herbicide agents in Vietnam certain medical conditions, including chronic respiratory conditions. The Veteran also submitted a September 2018 medical examination and nexus opinion from Dr. Lloyd. Dr. Lloyd opined that the current diagnoses of COPD and bronchiectasis were at least as likely as not related to exposure to Agent Orange. The rationale provided was that the Veteran's medical condition diagnosis is enough to explain the pulmonary objective findings and clinical findings, even in the absence of Agent Orange exposure. The September 2018 Board decision found that a cogent rationale was not provided to support the opinion from Dr. Lloyd and, thus, that the opinion is not of sufficient evidentiary value to substantiate the claim. Therefore, the Board remanded the appeal in order to obtain a VA examination and medical opinion regarding the etiology of the Veteran's respiratory disability. The remand directed that the requested VA medical opinion consider the medical treatise submitted in July 2018, as well as Dr. Lloyd's nexus opinion and the Veteran's lay statements, to include from his July 2018 Board hearing testimony. The Veteran was afforded the requested VA examination and medical opinion in November 2019, with an addendum opinion - to address the treatise evidence submitted in July 2018, and the September 2018 medical nexus opinion from Dr. Lloyd - provided in October 2020, with additional clarification added in December 2020. The November 2019 VA examiner found that it is less likely than not that the Veteran's bronchiectasis and COPD are related to military service, to include his asbestos exposure or Agent Orange exposure. The rationale in the examination report shows that: service treatment records (STRs) are silent for a diagnosis of bronchiectasis or COPD; chest x-rays taken at induction and separation from service are negative for any pathology; per a May 2009 pulmonary consult, the Veteran's bronchiectasis is most likely related to his inflammatory bowel disease or rheumatoid arthritis; the Veteran was hospitalized for pneumonia four times: 2006, 2008, 2015, 2016; Agent Orange does not cause bronchiectasis or COPD; asbestos exposure does not cause bronchiectasis or COPD; bronchiectasis is caused by lower respiratory tract infections (pneumonia); and COPD is caused by cigarette smoke. In the October and December 2020 addendum opinions, a different VA examiner opined that the Veteran's pulmonary diagnosis is bronchiectasis with a clear etiology: to his ulcerative colitis and rheumatoid arthritis. Her rationale states that his bronchiectasis was evaluated by pulmonologists, including CT scans throughout the years, and deemed to be due to his immunological conditions, namely ulcerative colitis and rheumatoid arthritis. She further opined that bronchiectasis is less likely due to Agent Orange exposure in service, explaining that she does not know of a nexus between Agent Orange exposure and bronchiectasis. The examiner further indicated that her opinion on the etiology of the Veteran's respiratory disability is not altered by consideration of the treatise evidence submitted in July 2018 and the September 2018 nexus opinion from Dr. Lloyd. Taken together, these VA opinions are probative as they were provided by medical professionals, one of whom conducted an in-person examination and interviewed the Veteran, and both of whom reviewed the evidence in the claims file. The opinions were supported by rationale that is persuasive. Therefore, the Board affords them more probative weight than the September 2018 nexus opinion from Dr. Lloyd. While Dr. Lloyd is competent to opine on the present matter, and evaluated the Veteran and reviewed his medical records after separation from service, the Board has afforded his opinion little probative weight due to the lack of a cogent rationale. The Veteran, as a lay person, is competent to report symptoms he can personally observe and the onset of such. See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). To the extent the Veteran asserts his current respiratory disabilities are related to active service, as a result of claimed asbestos exposure or presumed Agent Orange exposure therein, he has not been shown to have specialized training sufficient to render an opinion requiring medical expertise, such as the etiology of his current respiratory disabilities. Accordingly, his statements are not competent evidence to establish service connection. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Rather, the Board relies upon the competent and probative VA nexus opinions, which are unfavorable on the question of service etiology or causal nexus. The Veteran has proffered no other possible causal relationship between his current respiratory disabilities and his military service, other than the exposure to herbicide agents or reported asbestos exposure therein. There are no other competent and persuasive medical nexus opinions other than those previously addressed. As the evidence does not establish that the Veteran's bronchiectasis and COPD are attributable to military service, the preponderance of the evidence is against the claim, and the benefit of the doubt does not apply. 38 U.S.C. § 5107(b). Service connection for a respiratory disability, to include bronchiectasis and COPD, is denied. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Caban, 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.