Citation Nr: 21071028 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 16-11 074 DATE: November 29, 2021 ORDER Service connection for chronic obstructive pulmonary disorder (COPD) is granted. REMANDED Entitlement to service connection for skin cancer, to include as due to herbicide exposure, is remanded. Entitlement to service connection for diverticulosis, to include as due to herbicide exposure, is remanded. Entitlement to service connection for an eye disability, to include as due to herbicide exposure, is remanded. FINDING OF FACT Resolving all doubt in the Veteran's favor, the currently diagnosed COPD is etiologically related to active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for COPD have been approximated. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1963 to December 1966, with subsequent Air Force Reserve service. This case is before the Board of Veterans' Appeals (Board) on appeal from October 2013 and December 2014 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO). In June 2018 and June 2021, the Board remanded the claims for service connection for skin cancer, diverticulitis, and an eye disability to the RO for further development and adjudicative action. For the reasons discussed in the REMAND section, the Board finds that there has not been substantial compliance with the development sought as part of the June 2021 remand. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection for COPD. The Veteran contends that service connection is warranted for COPD. After review of the evidence, both lay and medical, the Board finds, after resolving all doubt in the Veteran's favor, that service connection for COPD is warranted. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, COPD is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) do not apply. 38 C.F.R. § 3.384; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established for diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the specific time period will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. Specifically, this includes 2,4-D; 2,4,5-7 and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides 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). Notwithstanding the aforementioned provisions relating to presumptive service connection, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2,725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), a claimant is not precluded from establishing service connection with proof of actual causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As an initial matter, the Board first finds that the Veteran has a current cardiopulmonary disability. Specifically, the August 2021 VA examiner diagnosed the Veteran with COPD. Further, VA treatment records show a diagnosis of, and treatment for, COPD. Next, VA has conceded the Veteran's exposure to herbicides based on his duty in the Republic of Vietnam. However, as established above, COPD is not listed as a presumptive condition due to herbicide exposure and the Board must continue the service connection analysis. Turning to a nexus, the August 2021 VA nurse practitioner opined that it was at least likely as not that the Veteran's COPD was incurred in or caused by his active military service, due to herbicide exposure. The treating physician indicated that there is an association between herbicide exposure and COPD. The opinion, as a whole, considers all the pertinent evidence of record and provides a rationale for the opinions stated. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, the Board finds the August 2021 VA physician statement probative, and adequate for granting service connection. The Board notes that the August 2021 VA examiner offered two nexus opinion, one positive and one negative. However, review of the opinions reveals that the positive opinion addresses whether the COPD was caused by herbicide exposure and the negative opinion addresses whether the COPD was incurred during the Veteran's active service. As such, the Board finds the opinions do not conflict because they address different questions. The Board also finds persuasive that the August 2021 VA examiner's opinion os supported by the treatise evidence of record.Specifically, the evidence indicates that exposure to herbicides can affect systematic illnesses in the pulmonary, cardiac, and vascular systems. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, the Board could seek further examination to clarify and definitively opine on the nature and etiology of the current COPD. However, given the existence of the evidence in favor of the claim, the Board concludes that service connection is now warranted for COPD. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Furthermore, given the favorable outcome in this decision that represents a full grant of the issues on appeal, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). REASONS FOR REMAND 1. The Remaining Claims on Appeal are Remanded. The Veteran contends that service connection is warranted for diverticulitis, an eye disability, and a skin cancer disability, all as both direct and due to in-service herbicide exposure. The claims were remanded for opinions in June 2021 Board decision. The remand specifically requested that when formulating opinions for the eye and skin cancer disabilities that the examiner include analysis of the Veteran's presumed herbicide exposure and treatise evidence that is in the record. A review of the examination reveals that neither opinion obtained address either herbicide exposure or the treatise evidence. As such, both opinions are inadequate, and a remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). The Board similarly finds the opinion obtained on remand regarding diverticulitis lacks adequate rationale for its findings. Further, the Board notes that the Veteran has also claimed the diverticulitis as due to herbicide exposure. Given these deficiencies, a remand is necessary. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following action: 1. Associate any VA treatment records with the electronic claims file. 2. Following completion of the above, obtain an addendum opinion from a medical doctor. Following reviewing the claims file, the medical professional is asked to provide the following opinion: Is it at least as likely as not (50 percent probability or greater) that the Veteran's skin cancer disability began in or is etiologically related to service, to include as due to herbicide exposure? The examiner must comment on the July 2013 treatise evidence on herbicide exposure and skin cancer submitted by the Veteran. A complete rationale for any opinion provided is requested. If the medical professional is unable to provide an opinion without resort to speculation, an explanation as to why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered should be provided. 3. Following completion of the above, obtain an addendum opinion from a medical doctor. Following reviewing the claims file, the medical professional is asked to provide the following opinion: Is it at least as likely as not (50 percent probability or greater) that the Veteran's diverticulitis began in or is etiologically related to service, to include as due to herbicide exposure? The examiner must comment on the July 2013 treatise evidence on herbicide exposure and gastrointestinal disorders submitted by the Veteran. A complete rationale for any opinion provided is requested. If the medical professional is unable to provide an opinion without resort to speculation, an explanation as to why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered should be provided. 4. Following completion of the above, obtain an addendum opinion from a medical doctor. Following reviewing the claims file, the medical professional is asked to provide the following opinion: (Continued on the next page) Is it at least as likely as not (50 percent probability or greater) that the Veteran's eye disability began in or is etiologically related to service, to include as due to herbicide exposure? The examiner must comment on the July 2013 treatise evidence on herbicide exposure and eye disabilities submitted by the Veteran. A complete rationale for any opinion provided is requested. If the medical professional is unable to provide an opinion without resort to speculation, an explanation as to why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered should be provided. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Teague, 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.