Citation Nr: 21069420 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 14-41 785 DATE: November 18, 2021 ORDER Service connection for a lung disorder, claimed as chronic pulmonary disease (COPD) and emphysema, is denied. REMANDED The issue of service connection for a heart disorder is remanded. The issue of service connection for hypertension is remanded. The issue of service connection for residuals of a cerebrovascular accident (CVA), claimed as a stroke, is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that COPD was incurred in service, to include as due to herbicide exposure. CONCLUSION OF LAW The criteria to establish service connection for COPD have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.300, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1958 to November 1979. Pursuant to a joint motion for remand (JMR) filed by VA and the Veteran, in June 2021 the Court of Appeals for Veterans Claims (CAVC) vacated the Board's July 2020 decision and remanded it to the Board for compliance with its instructions. Before the CAVC, the parties agreed that the Board did not address medical evidence. In addition, the parties agreed the Board did not adequately address a potentially positive nexus opinion regarding his COPD. The Board has re-reviewed the claims file and on remand will further develop the heart disorder, hypertension, and stroke residuals claims. The Board will address the nexus opinion below. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). With regards to the second and third elements of service connection, any veteran who, during active military service, served in the Republic of Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicide agents. 38 C.F.R. §§ 3.307, 3.309. Military personnel records confirm the Veteran served in Vietnam from April 1966 to June 1966. Thus his exposure to herbicides is presumed. However, the list of diseases that are deemed associated with herbicide exposure includes respiratory cancers but not COPD nor emphysema. The Veteran's claimed conditions do not qualify for presumptive service connection. Where the evidence does not warrant presumptive service connection, however, a veteran is not precluded from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). For claims received by VA after June 9, 1998, 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. 38 C.F.R. § 3.300 (a). For the purpose of this section, the term "tobacco products" means cigars, cigarettes, smokeless tobacco, pipe tobacco, and roll-your-own tobacco. The Board must analyze the competency and credibility of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept it means that the person or person who makes the statement is qualified by training, education, an occupation, personal experience, or other reason to make the statement. Credibility is a factual determination it involves deciding whether the testimony or other evidence is believable, and the determination is made after the evidence has been found competent. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for a lung disorder, claimed as COPD and emphysema Service treatment records (STRs) do not indicate complaints, diagnoses, or treatments for pulmonary (lung) symptoms in service. The Veteran's in-service periodic and annual flight medical examinations show no pulmonary abnormalities. The Veteran endorsed pain or pressure in his chest on his January 1974 report of medical history, but his corresponding January 1975 medical evaluation indicated normal lungs and chest. The examiner noted the Veteran endorsed tight pain in his chest and trouble breathing in 1970 but that the Veteran indicated this was the only occurrence; that he received no treatment; and that there were no subsequent complaints related to the incident. A November 1975 pulmonary function test was noted to be within normal limits. On his July 1979 report of medical history at retirement, the Veteran denied shortness of breath, pain or pressure in his chest, or chronic cough. His lungs and chest evaluations were normal. The Veteran participated in a multi-year health survey that began in May 1982. According to the initial May 1982 health questionnaire, the Veteran endorsed complaints of shortness of breath. The examiner noted the Veteran was a 100 pack/year smoker with mild obesity. His spirometry results were normal, and the Veteran was not diagnosed with a pulmonary condition. The examiner's notation regarding the Veteran's smoking habit, indicated in pack/year, did not indicate the length of time the Veteran had been smoking. The Veteran reported that he smoked during service, suggesting that the length of time of the Veteran's smoking habit as of May 1982 may have been approximately 25 years. Thus, the examiner's notation suggests that the Veteran smoked four packs (or 80 cigarettes) a day at the time of the May 1982 medical evaluation. At the health survey's November 1987 five-year follow up evaluation, the Veteran denied asthma and hay fever, and endorsed smoking between 40 and 50 cigarettes a day. He also endorsed having a recent or chronic cough; a history of coughing up sputum; and shortness of breath or wheezing. Spirometry test results indicated minimal obstructive abnormality. At the spirometry examination the Veteran reported a smoking history of 2.5 packs per day for 15 years and 1.5 packs per day for 16 years. At the time of this evaluation the Veteran was 51 years old. In an August 2012 letter, the Veteran's treating physician Dr. G. Kennedy stated the Veteran had been a patient of hers since 2006, and was being treated for severe obstructive airway disease, allergic rhinitis, and asthma. On an accompanying September 2012 respiratory conditions questionnaire the same examiner noted the Veteran was diagnosed with COPD in October 2005 on his initial visit. The examiner did not indicate a diagnosis of asthma, but noted the Veteran had chronic bronchitis along with COPD. With regards to whether the Veteran had multiple pulmonary conditions, the examiner responded "yes" but did not indicate asthma or any other diagnosis. The examiner noted that a February 2010 bronchoscopy revealed no malignancy, and that a March 2012 chest x-ray revealed atelectasis, a condition denoting a partial or complete lung collapse. An August 2013 VA medical examiner reported review of the Veteran's claims file. The examiner opined the Veteran's lung disorder, claimed as COPD and emphysema, was less likely than not incurred in service because the Veteran's STRs, to include all of the Veteran's periodic medical examinations, did not indicate any lung symptoms during service, and the Veteran's treating physician noted the Veteran's was diagnosed with COPD in 2005. Thus the examiner stated the medical records were "insufficient" to support a service connection nexus. In an October 2013 statement, Dr. G. Kennedy stated that the Veteran was diagnosed with moderate to severe obstructive airway disease since he became her patient in 2005, and that his disease had progressed over the eight-year course of his treatment. She also noted that his spirometry results were suggestive of emphysema and that a chest x-ray showed hyperinflated lung fields. In a May 2014 statement, Dr. G. Kennedy reported that the Veteran had end-stage COPD. She noted that the Veteran "certainly had exposure to significant toxins" during service; that he "did smoke cigarettes" during service; and that "part if not all" of his COPD condition was related to exposures that occurred during his war-time service in Vietnam. She then remarked that COPD occurred over a long period of time and that the condition "certainly" could have begun during service and progressed over a period of time during the aging process. This opinion is conclusory and provides insufficient analysis to consider and weigh her opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 124-125 (2007) (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"). The examiner does not provide any fact-based rationale for her conclusion that the Veteran's presumed exposure to herbicides caused his COPD. See Swann v. Brown, 5 Vet. App. 229, 232 (1993) (noting that the weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated). Furthermore, the examiner does not adequately address the effect of the Veteran's long-standing smoking habit on the development of his COPD in her opinion. While the Veteran smoked cigarettes during service, the Veteran continued to smoke cigarettes well after his combat service in Vietnam and has testified that he did not stop smoking until he was diagnosed with COPD, approximately 25 years after retirement from service. Thus the examiner's opinion is essentially speculative and is of little probative value. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (a letter from a physician indicating that Veteran's death "may or may not" have been averted if medical personnel could have effectively intubated the Veteran held to be speculative). In a December 2014 statement the Veteran contended that his service in Vietnam, to include exposure to tactical herbicides, "significantly impacted" the development of his current COPD. As noted above, the Veteran's claimed lung disorder conditions do not qualify for presumptive service connection, but the Veteran is not precluded from establishing service connection with proof of direct causation. In his November 2017 Board hearing, the Veteran testified that he did not recall breathing problems prior to his 2005 COPD diagnosis. The Veteran testified that he began smoking heavily in Vietnam due to the stress of combat, but that he also alleged that his COPD was exacerbated by his exposure to herbicides. These lay statements are competent regarding his recollection of his smoking habits and breathing difficulties, and to establish the presence of observable symptomatology, including frequency. See Caluza v. Brown, 7 Vet. App. 498 (1995); see also Barr v. Nicholson, 21 Vet. App. 303, 307-8 (2007). While also presumed credible, these observations are not competent to establish a nexus between his COPD diagnosis and his service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). At a December 2019 VA medical examination for respiratory conditions, the examiner diagnosed the Veteran with COPD, but did not diagnose the Veteran with asthma or emphysema. The Veteran reported symptoms of shortness of breath and wheezing. The only pulmonary condition the examiner noted the Veteran had was COPD. A chest x-ray revealed clear lungs, no pulmonary nodules, no pleural effusions, and hyperlucency consistent with COPD. The examiner opined the Veteran's COPD was less likely than not incurred in service, to include due to herbicide exposure, because medical science indicated that COPD was primarily caused by smoking but if left untreated can demonstrate with increased labored breathing and symptoms such as wheezing, constant coughing, and recurring upper respiratory infections. The examiner also noted exposure to harmful gases or particulate matter can also result in COPD, but that herbicide exposure was not a toxin that was correlated to the development of COPD. For example, the examiner noted that veterans that served in the Southwest Asia Theater of Operations may experience severe respiratory conditions such as COPD due to exposure to sand, dust, and toxins from burn pits. Thus the examiner noted that there was a lack of evidence to support the contention that herbicide exposure caused his COPD. In a May 2020 addendum opinion, a different examiner reviewed the Veteran's claims file and opined that because the Veteran's STRs did not indicate any respiratory condition during service, at separation, or proximate to service, his COPD was not related to service, to include as due to herbicide exposure. In addition, the examiner noted that the leading causes of COPD were smoking and asthma, and that the Veteran's medical records did not indicate the Veteran had asthma. Finally the examiner noted that it was a medical fact that hypertension did not cause COPD. The preponderance of the evidence is against finding service connection for COPD. There is no probative medical evidence that indicates the Veteran's current COPD was incurred in service, to include as due to herbicide exposure. The probative medical evidence indicates the Veteran's 50+ year history of smoking was most likely the cause of his COPD, and as noted above, VA provisions generally prohibit finding service connection for conditions based on tobacco use. The Veteran has continuously asserted throughout the appeal that his current lung disorder, diagnosed as COPD, is a result of his service, to include exposure to tactical herbicides. The Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis. See Layno, 6 Vet. App. 465, 469; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, while the Veteran has attempted to establish a nexus through his own lay assertions, the Veteran is not competent to offer opinions as to the etiology of his current COPD disability. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). COPD requires specialized training for determinations as to diagnosis and causation and is therefore not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between his current diagnosis and its relationship to his service. The claim for service connection is denied. The preponderance of the evidence is against the claim, and the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Service connection for a heart disorder is remanded. 2. Service connection for hypertension is remanded. 3. Service connection for residuals of a cerebrovascular accident (CVA), claimed as a stroke, is remanded. The matters are REMANDED for the following action: 1. This remand is pursuant to a Court vacatur and remand. The Board has determined that additional development is necessary for the Veteran's heart and hypertension claims. Since the Veteran's claim for residuals of a stroke is inextricably intertwined with his claim for hypertension, all three matters are remanded for the following: 2. Return the claims file to the May 2020 VA examiner and request he re-review the claims file and respond to the inquiries below. If the examiner is not available, arrange for another appropriate VA examiner to provide an addendum medical opinion to assist in determining the relationship between any of the Veteran's current cardiovascular and/or heart disorder diagnoses and his service. The VA examiner must provide the following opinions: a) What is the significance of the February 2018 findings of right bundle branch block (RBBB); left anterior fascicular block; non-rheumatic aortic insufficiency; stenosis; and mild mitral insufficiency on the Veteran's claim of a current heart disorder? Please fully explain whether these findings are indicative of additional current heart conditions. b) Were any additional current heart diagnoses other than left anterior fascicular block incurred in service or caused by an in-service injury, event, or illness, to include exposure to herbicides? Please fully explain your opinion. c) Given the medical evidence in this case, your experience and knowledge, and the state of medical science, is the Veteran's account of the development of his current heart disorder(s) consistent with the clinical findings? Please fully explain your opinion. The examiner must review the entire record in conjunction with rendering the requested opinions. IN ADDITION TO ANY RECORDS THAT ARE GENERATED BECAUSE OF THIS REMAND, the VA examiner's attention is drawn to the following: * January 1975 STRs indicate the Veteran underwent repeated electrocardiogram tests, including double master's test that resulted in a borderline abnormal finding. The examiner noted the Veteran reported pain in his chest in 1970 but that the incident occurred only once; that he did not received treatment; and that he did not have any subsequent complaints related to the incident. See "STR," received January 15, 2013, pages 16-17, 92 of 96. * May 1982 health survey questionnaire indicates the Veteran endorsed complaints of chest pain. See "Medical Treatment Record Government Facility," received October 17, 2018, page 12 of 64. * November 1987 healthy survey evaluation indicates the Veteran had an abnormal EKG. See "Medical Treatment Record Government Facility," received October 17, 2018, page 98 of 99. * October 1997 echocardiogram indicates the Veteran demonstrated normal sinus rhythm with occasional premature ventricular contractions (PVCs). A subsequent July 1998 stress test indicates premature ventricular contractions, with arrhythmia occurring at baseline, during exercise, and in recovery. A handwritten note suggests this finding was indicative of coronary artery disease. See "Medical Treatment Record Non-Government Facility," received November 15, 2017, page 4, 7 of 15. * The Veteran had a cerebrovascular accident (CVA or stroke) in 2003, at which time he was told he had a minor heart attack. See "C&P Exam," received May 8, 2020. * September 2012 heart ischemic heart disease (IHD) Disability Benefits Questionnaire (DBQ) conducted by the Veteran's treating physician Dr. J. Bailey. The physician did not diagnose the Veteran with IHD. See "VA Examination," received October 17, 2012. * March 2014 VA medical examination for heart conditions. The examiner did not diagnose the Veteran with coronary artery disease. See "VA Examination" conducted on March 4, 2014. * In December 2017 the Veteran was evaluated due to an abnormal ECG that revealed bifascicular block with left anterior block and right bundle branch block (RBBB). He also had premature contractions and PVCs. The Veteran reported chronic shortness of breath with exertion. The examiner noted that the Veteran's symptoms were due to his COPD. See "Medical Treatment Record Non-Government Facility," received July 23, 2018, pages 10-20 of 33. * February 2018 private treatment records indicate a recent ECG revealed RBBB and left anterior fascicular block; normal ejection fraction; stenosis; mild to moderate nonrheumatic aortic insufficiency; and mild mitral insufficiency. The examiner noted no active issues of chest pain consistent with ischemia. The Veteran's main complaint was shortness of breath with exertion, which the examiner noted was due to his COPD, and that his valvular heart disease did not appear "significant enough" to contribute to the etiology of his shortness of breath complaints. See "Medical Treatment Record Non-Government Facility," received February 27, 2018, 19 pages. * March 2019 medical records showing the Veteran went to the emergency room (ER) one month prior to evaluate possible transient ischemic attack (TIA) symptoms. A CT scan conducted at the time of the evaluation revealed age-related changes but no acute findings. See "Medical Treatment Record Non-Government Facility," received March 8, 2019, page 9 of 44. * December 2019 VA medical examination for heart conditions. The examiner noted no pathology to render a current diagnosis. See "C&P Exam," received December 23, 2019. * May 2020 VA medical opinion that the Veteran's current heart disorder, diagnosed as left anterior fascicular block, was age-related, not indicative of ischemic heart disease, and was not related to herbicide exposure during service. The examiner did not comment on the Veteran's other cardiac diagnoses such as RBBB, stenosis, or non-rheumatic aortic valve insufficiency. A thorough explanation must be provided for the opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, s/he must expressly indicate this and provide supporting rationale as to why the opinion cannot be made without resorting to speculation. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED, AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THE EXAMINATION/OPINION SUFFICIENT. 3. Return the claims file to the May 2020 VA examiner and request he re-review the claims file and respond to the inquiries below. If the examiner is not available, arrange for another appropriate VA examiner to provide an addendum medical opinion to assist in determining the relationship between the Veteran's current hypertension diagnosis and his service. The VA examiner must provide the following opinions: a) What is the significance of medical evidence that indicates the Veteran reported borderline hypertension in 1985 and was prescribed hypertension treatment since at least October 1990? Please fully explain your opinion. b) What is the significance of the May 2020 VA examiner's opinion that states in part that studies indicate a "possible link" between hypertension and herbicide exposure? The Veteran's exposure to herbicide is presumed. Please fully explain your opinion. c) Given the medical evidence in this case, your experience and knowledge, and the state of medical science, is the Veteran's account of the development of his hypertension as incurred in service, to include as due to herbicide exposure, consistent with the clinical findings? Please fully explain your opinion. The examiner must review the entire record in conjunction with rendering the requested opinions. IN ADDITION TO ANY RECORDS THAT ARE GENERATED BECAUSE OF THIS REMAND, the VA examiner's attention is drawn to the following: * June 1985 health survey questionnaire indicates the Veteran reported borderline hypertension. See "Medical Treatment Record Non-Government Facility," received October 17, 2018, pages 35-39 of 99. * November 1987 health survey questionnaire indicates the Veteran endorsed high blood pressure. Id. at pages 92-96 of 99. * Medical records indicate that in October 1990 the Veteran's hypertension medication had recently been refilled. See "Medical Treatment Record Non-Government Facility," received November 15, 2017, page 13 of 15. * February 2001 medical records indicate the Veteran's physician noted the Veteran's hypertension was "doing well" on hydrochlorothiazide. See Id. at page 12 of 15. * May 2020 VA examiner opinion that notes no evidence of hypertension prior to, during, or soon after service. The examiner further noted that the Veteran's hypertension was initially diagnosed in 2009, decades after service, and was therefore suggestive of being age-related. The examiner also noted that although the National Academy of Sciences (NAS) suggested a possible link between hypertension and exposure to herbicides, the studies remained ongoing and that this link had not been "firmly" established in current medical literature. The examiner's opinion does not address medical evidence of treatment for borderline hypertension or hypertension since 1987. See "C&P Exam," received May 9, 2020. A thorough explanation must be provided for the opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, s/he must expressly indicate this and provide supporting rationale as to why the opinion cannot be made without resorting to speculation. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED, AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THE EXAMINATION/OPINION SUFFICIENT. 4. Following the review and any additional development deemed necessary, readjudicate all three claims. If the RO does not grant the claims, issue a supplemental statement of the case (SSOC), and return the claims to the Board. The Veteran may submit additional evidence and argument. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON THE NEXT PAGE) These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Anwar, Attorney-Advisor The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.