Citation Nr: 21068876 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 13-03 038 DATE: November 15, 2021 ORDER Service connection for a pulmonary disorder, claimed as shortness of breath, to include restrictive pulmonary function defect (hereinafter referred to as "pulmonary disability"), to include due to presumed in-service Agent Orange exposure, is denied. FINDING OF FACT The preponderance of the evidence supports the finding that the Veteran does not have a current pulmonary disorder due to any in-service injury or disease, including due to presumed exposure to Agent Orange, and his reported symptoms of dry cough and shortness of breath do not cause any functional impairment of earning capacity. CONCLUSION OF LAW The criteria for service connection for a pulmonary disorder, to include due to presumed in-service exposure to Agent Orange have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1969 to November 1970. His DD 214 confirms service in the Republic of Vietnam from November 1969 to November 1970. This matter is before the Board of Veterans' Appeals (the Board) on appeal from a November 2011 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision, inter alia, denied service connection for a lung condition (also claimed as shortness of breath). The Veteran's Notice of Disagreement (NOD) was received in December 2011. The Statement of the Case was issued in December 2012, and the Veteran's VA Form 9, substantive appeal to the Board was received in January 2013. The claim was recharacterized as a claim of service connection for a pulmonary disorder as noted above, and remanded by the Board in February 2015, December 2017, September 2019, July 2020, and June 2021. Entitlement to service connection for a pulmonary disorder. The Veteran contends that he has a currently diagnosed pulmonary disability related to service, including presumed exposure to Agent Orange. Specifically, the Veteran contends that he experienced worsening shortness of breath since service in 1970, with symptoms now consisting of almost daily dry cough and shortness of breath on exertion. The Veteran further contends that his pulmonary disability was diagnosed as bronchitis in May 2011 and as restrictive pulmonary function defect in 2016. Service connection may be granted for a 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; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for certain chronic diseases, may also be established on a presumptive basis by showing that such a disease manifested to a degree of 10 percent or more within one year from the date of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307 (a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307 (a)(6) are met. See 38 C.F.R. § 3.309 (e). The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. The diseases for which service connection may be presumed to be due to exposure to herbicide agents do not include pulmonary disabilities such as bronchitis. 38 C.F.R. § 3.309(e). The presumptive regulations, however, do not preclude a claimant from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The Veteran's March 1969 medical entrance examination does not contain any notations regarding a pulmonary disability. His service treatment records (STRs) contain May 1969, February 1970, and March 1970 complaints of chest pain. Each time his lungs were noted to be clear. In March 1970, the Veteran reported a 2-year history of dyspnea and chest pain, being treated in other medical facilities in the past year. It was noted that the Veteran had an anxiety reaction. Notably, the Veteran's STRs frequently stated "rude" at the conclusion of each encounter. The Veteran's November 1970 separation examination report did not contain any complaints or treatments for a pulmonary disability. The accompanying chest x-rays were within normal limits. A February 1971 VA examination report contains clear back and lung x-rays. A July 2004 VA treatment note indicates that the Veteran complained of a dry cough which started right about the time he was placed on Lisinopril. The note indicated that Lisinopril will be discontinued and replaced with Felodipine. There was no shortness of breath, wheezing, pleuritic pain, or cough noted. The above treatment note is the only time that the Veteran reported a cough to his VA providers. In 2006, it was also noted that the Veteran did not have bronchitis. For the remainder of the Veteran's VA treatment records, it was recorded that the Veteran routinely denied shortness of breath, coughing, dyspnea, and other respiratory symptoms. In May 2011, the Veteran underwent a VA examination for his claim. It was noted that the Veteran smoked 1/3 of a pack of cigarettes per day for 15 years and quit 20 years ago. The Veteran reported a daily dry cough and occasional shortness of breath on exertion. There was no history of pneumonia, tuberculosis, or asthma noted. It was noted that the Veteran was not on any respiratory medications and has not been diagnosed with lung or throat cancer. The Veteran reported pain over the left scapular area 2 to 3 times per week. X-rays revealed clear lungs. The Veteran was diagnosed with bronchitis and was noted to have benign prostatic hypertrophy (BPH). The VA examiner concluded that the diagnosed bronchitis is not due to the Veteran's Agent Orange exposure. Pursuant to the February 2015 Board decision, the May 2011 VA medical opinion is insufficient to the extent that no rationale was provided for the conclusions reached. An October 2012 VA treatment note indicates that the Veteran did not have shortness of breath, wheezing, dyspnea, hemoptysis, or cough. As noted above, he continued to deny these symptoms and had normal lungs on routine checkups. In January 2016, the Veteran underwent a VA examination for his claim. Under history, it was noted that the Veteran served in the Republic of Vietnam in the 1960's and claims a lung disorder due to Agent Orange exposure. The VA examiner noted that the Veteran did not have a history of lung disease and that he smoked for approximately 20 years and quit 20 years ago. It was noted that the Veteran had mild shortness of breath with exertion and did not have a regular cough. Chest x-rays were taken and were within normal limits. Pulmonary function testing was completed. The impressions noted mild restrictive lung disease with mildly impaired gas diffusion. There was no significant bronchodilator response. The report also indicated that the Veteran is encouraged to avoid smoking to further avoid decline in lung function. The VA examiner indicated that they found no evidence of pulmonary disease related to Agent Orange exposure and that his pulmonary studies show a mild restrictive defect with an unclear etiology. The VA examiner also indicated that current studies do not link this sort of pulmonary function defect to Agent Orange exposure, and thus the Veteran's disability was less likely than not related to his Agent Orange exposure. Pursuant to the December 2017 Board decision, the January 2016 VA medical opinion did not comply with previous remand directives to the extent that it did not provide an opinion as to direct service connection and did not address the previous diagnoses of bronchitis and BPH. In December 2018, the Veteran underwent a VA examination for his claim. It was noted that he did not have a diagnosed respiratory condition. The Veteran reported pain in left posterior back and an occasional dry cough. He also reported feeling like his nose gets stopped up at night. He reported not being very active. The VA examiner noted that he did not describe dyspnea with exertion. Chest x-rays were taken and were normal, with clear lungs. Pulmonary function testing was normal. It was noted that the Veteran's pulmonary functions were essentially normal except for gas tapping, which was consistent with neuromuscular weakness or poor effort. The VA examiner concluded that the Veteran does not have any objective evidence of lung disease at this time, and specifically did not have chronic bronchitis. Pursuant to the September 2019 Board remand, the December 2018 VA medical opinion is deficient to the extent that it did not address the January 2016 diagnosis of restrictive pulmonary disorder. In December 2019, the Veteran underwent a VA examination for his claim. For details of onset, the Veteran reported gradual onset of dyspnea, fatigue, and chronic cough. He denied being diagnosed with any lung condition. Chest x-rays were taken and were normal. Pulmonary function testing was likewise normal. The VA examiner indicated that there was no objective evidence of chronic respiratory condition found and that the Veteran had normal spirometry and chest x-ray. The VA examiner further indicated that there was no evidence of a pulmonary disability found in medical records or on examination. The VA examiner concluded that it is less likely than not that any identified pulmonary disability had its onset in service, or was otherwise causally related to service, including presumed Agent Orange exposure. Pursuant to the July 2020 Board remand, the December 2019 VA medical opinion is inadequate to the extent that it does not address bronchitis or mild pulmonary function defect previously noted in the May 2011 and January 2016 VA examination reports. In January 2021, the Veteran underwent a VA examination for his claim. The Veteran reported chronic shortness of breath episodes since service which have recently increased in severity. His current symptoms were reported as shortness of breath with light physical activity such as yard work, chronic cough occurring almost daily, and frequent wheezing. The VA examiner indicated that the Veteran has not now or ever been diagnosed with a respiratory condition. Pulmonary function testing was normal. The VA examiner concluded that it is less likely than not that the Veteran's claimed condition was incurred in or caused by service. For rationale, the VA examiner cited the Veteran's November 1970 separation exam showing no objective evidence of chronic respiratory condition, as well as previous VA examination reports. The VA examiner also noted the Veteran's reported symptoms as listed in the previous VA examination reports. The VA examiner indicated that there is evidence of acute bronchitis after service in May 2011 and acute restriction of pulmonary function on spirometry in 2016, but that there is no evidence of a chronic lung condition. The VA examiner also indicated that there is no evidence of a diagnosis or treatment for a chronic lung condition in the Veteran's medical records, and no objective evidence of such condition. This opinion was produced by a nurse practitioner. In March 2021, the Veteran underwent a VA examination for his claim. The VA examiner listed a 1970 chronic bronchitis diagnosis. Under details of onset, it was noted that there was a gradual onset of worsening shortness of breath beginning in 1970. The portion outlining various respiratory disabilities, including bronchiectasis were left blank. Under other pertinent findings, the VA examiner listed shortness of breath, cough, and dyspnea on exertion. December 2019 chest x-rays were cited. Pulmonary function testing was normal. The VA examiner concluded that it is less likely than not that the Veteran's claimed condition was incurred in or caused by service. The VA examiner cited the March 1970 chest pain treatment note and the Veteran's separation examination, along with the previous VA examination reports. The VA examiner also noted that there is no specific exposures or events during service, including herbicide exposure that would cause chronic bronchitis, as supported by medical literature. The VA examiner also noted that there were no complaints or treatments for a pulmonary disability in service. This opinion was produced by a VA clinician. In April 2021, the VA obtained an addendum medical opinion. The VA examiner noted that the there was a March 1970 complaint of shortness of breath in service which was deemed to be secondary to anxiety/panic. The VA examiner also noted that there was no subsequent evidence of related complaints or treatments occurring within close proximity of these initial complaints which have been deemed secondary to anxiety. The VA examiner indicated that there were no specific exposures or events during service, including herbicide exposure, that would cause chronic bronchitis or restrictive pulmonary function, as supported by medical literature. This opinion was provided by a VA clinician. Pursuant to the June 2021 Board remand, the VA medical opinion offered by the nurse practitioner was inadequate to the extent that it did not provide an explanation as to why the Veteran's 2011 and 2016 lung issues were acute given his reports of chronic shortness of breath and cough almost daily. The sole VA medical opinion that was produced by a nurse practitioner in this case is January 2021. In July 2021, VA obtained an addendum medical opinion by a VA clinician. The VA examiner indicated that the Veteran did not have any currently diagnosed pulmonary disorder, to include bronchitis and restrictive pulmonary function. The VA examiner indicated that the January 2021 VA examination demonstrated no active pulmonary diagnoses which was also reflected in the February 2021 testing. The VA examiner noted May 2011 VA treatment records demonstrating a diagnosis of chronic bronchitis and January 2016 pulmonary function testing demonstrating restrictive lung disease, indicating that these disabilities resolved. The VA examiner's rationale for this conclusion consisted of diagnostic test results. The VA examiner also noted that while there was a December 1970 notation of dyspnea and chest pain during service, along with evidence of prior bronchitis in March 2011 and restrictive lung disease in January 2016, the current diagnostic testing demonstrates no abnormalities consistent with chronic bronchitis, restrictive lung disease, or any other pulmonary diagnosis. Based on the above, service connection is not warranted. The Veteran does not have a current diagnosis of a pulmonary disability, due to any in-service injury or disease, including presumed exposure to Agent Orange. His reported symptoms of dry cough and shortness of breath have been contradicted by the medical evidence in this case. Moreover, given the Veteran's post-discharge records, these reported symptoms were not shown to cause any functional impairment (despite the Veteran's reports). The record does not show that the Veteran has a current pulmonary disability. The Veteran's STRs contain complaints of chest pain and dyspnea. However, his chest x-rays were clear, and his symptoms were associated with anxiety. The Veteran's VA treatment records do not contain complaints, diagnosis, or treatment for a pulmonary disability. To the contrary, the Veteran's VA treatment records contain a singular July 2004 complaint of a dry cough which was attributed to the Veteran taking Lisinopril, as it started right about the time he started taking it. More importantly, the Veteran's VA treatment records contain routine checkups, during which he consistently denied shortness of breath, cough, pleuritic pain, hemoptysis, dyspnea on exertion, asthma, and bronchitis. Finally, multiple VA examines reviewed the Veteran's objective medical testing and could not diagnose him with a pulmonary disability. Although the May 2011 VA examiner diagnosed the Veteran with bronchitis, the accompanying chest x-rays were normal, and the Veteran's lungs were noted to be clear. There was no pulmonary function testing performed. Thus, it appears that this diagnosis is based solely on the Veteran's reported daily dry cough and occasional shortness of breath on exertion. These reports are contradicted by the Veteran's VA treatment records, as they are not only silent on any diagnosis or respiratory complaints, but also contain explicit denials from the Veteran as to these same symptoms. Moreover, the objective medical testing performed during the May 2011, December 2018, December 2019, January 2021, and March 2021 VA examinations did not show any pulmonary disabilities. The March 2021, and April 2021 VA medical opinions indicated that the Veteran's bronchitis resolved. The March 2021 and April 2021 VA examiner supported their conclusion with objective medical testing and a thorough review of the Veteran's records. Further, these conclusions are supported by the record. As such, the March 2021 and April 2021 VA medical opinions are afforded probative value. Accordingly, the objective medical testing and March 2021 and April 2021 VA medical opinions show that the Veteran did not have bronchitis, and any previous bronchitis has resolved. Next, the January 2016 VA examination report is accompanied by pulmonary function testing that showed mild restrictive lung disease with mildly impaired gas diffusion and no significant bronchodilator response. Etiology of this was unclear. However, the objective medical testing accompanying the December 2018, December 2019, January 2021, and March 2021 VA examinations did not show any pulmonary disabilities. The Veteran's VA treatment records did not show respiratory complaints for this time period, and his routine checkups likewise did not show any problems. Finally, the March 2021 and April 2021 VA medical opinions indicated that the Veteran's mild restrictive lung disease has resolved and that the Veteran did not have a current pulmonary disability, as supported by the record and objective medical testing. In this case, the Veteran has not presented any probative evidence showing a diagnosis of a pulmonary disability. While the Veteran sincerely believes that he is has a pulmonary disability related to service, including presumed Agent Orange exposure, he does not possess the medical expertise to provide a diagnosis or a nexus in this case. The Veteran, as a lay person, is competent to report observable symptoms, such as dry cough or shortness of breath. See Barr v. Nicholson, 21 Vet. App. 303, 308-310 (2007). However, he does not have the medical expertise to provide a pulmonary disability diagnosis or a nexus opinion. Moreover, the Veteran is not competent to opine that his reported symptoms of shortness of breath and dry cough are symptoms of a pulmonary disability such as bronchitis. The issue is medically complex, as it requires specialized medical education/knowledge of the interaction between multiple organ systems in the body/the ability to interpret complicated diagnostic medical testing. As such, the Veteran's lay statements cannot serve as a basis for a diagnosis or nexus in this case. As noted above, the Veteran reported experiencing gradually worsening shortness of breath with exertion and dry cough since service. In this regard, in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) the Federal Circuit Court held that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlaying cause of said disability", and that "pain alone can serve as a functional impairment and therefore qualify as a disability." In other words, service connection may be warranted for pain causing functional impairment without a current diagnosis of a particular disability. Id. As previously noted, the Veteran's reports have been contradicted by the record and are not afforded probative value. At the outset, the Veteran's reports are internally inconsistent. For example, during the January 2021 VA examination, the Veteran reported onset of chronic shortness of breath episodes since service, and during the December 2019 VA examination, the Veteran reported gradual onset of dyspnea, fatigue, and chronic cough. However, in the July 2004 VA treatment note, the Veteran clearly stated that his cough started recently when he began taking prescribed medication. Further, during the period on appeal, the Veteran routinely and consistently denied shortness of breath, dyspnea, and cough in his VA treatment records. While the Veteran reported respiratory symptoms since service, including cough, dyspnea, and shortness of breath, during his VA examination reports, during his regular VA checkups, he denied these exact symptoms. Finally, the Veteran's reports are not afforded probative value because they have been contradicted by the medical evidence of record. Indeed, the Veteran's regular physical checkups did not show any pulmonary problems and contained affirmative denials of these symptoms. As such, no probative value is afforded to the Veteran's contentions regarding his alleged continued symptoms. Assuming arguendo, that the Veteran did experience some degree of respiratory symptoms, such as dry cough and shortness of breath. The record does not show that these symptoms were ever evaluated or treated by his primary care VA providers. There was no follow up treatment to the singular July 2004 VA treatment note during which the Veteran reported coughing after starting a new medication. Thus, while there may have been episodes of shortness of breath and cough, the evidence does not show that these symptoms caused any functional impairment. Moreover, the evidence does not show that these symptoms are related to the Veteran's service or his presumed Agent Orange exposure. In sum, the probative medical evidence of record does not establish a current diagnosis for a pulmonary disability related to service or presumed Agen Orange exposure. Further, the Veteran's reports of respiratory symptoms have been contradicted by the medical record, and the evidence shows that even if the Veteran's reports of symptoms were found to be credible, any potential respiratory symptoms did not result in functional impairment of earning capacity. As the record does not establish a current diagnosis for respiratory disability, and reported symptoms do not result in functional impairment of earning capacity, service connection may not be established on a direct basis or as related to presumed Agent Orange exposure. Accordingly, service connection is denied. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kuksova, Kseniya 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.