Citation Nr: 21071838 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 19-28 277 DATE: December 1, 2021 ORDER Entitlement to service connection for a respiratory disability, to include as secondary to herbicide exposure, is denied. FINDING OF FACT The Veteran's respiratory disability did not begin during service or within one year of service separation and is not otherwise related to his time in service, to include presumed herbicide exposure. CONCLUSION OF LAW The criteria for service connection for a respiratory disability have not been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1959 until October 1963. These matters come to the Board of Veterans (Board) on appeal from an April 2018 Department of Veterans Affairs (VA) regional office (RO) rating decision. The Veteran participated in a hearing before the undersigned in March 2021; a transcript is associated with the claims file. In July 2021, the Board remanded the claim to obtain an adequate VA medical opinion regarding whether the Veteran's respiratory disability was directly due to his presumed exposure to herbicides. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Service Connection Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of 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 showing (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Before deciding a claim, the Board is required to evaluate all relevant evidence on appeal, including lay and medical evidence. See 38 U.S.C. § 7104(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a determination as to the competency, credibility, and weight of the evidence. Lay evidence may be competent and sufficient to establish a claim for service connection. Specifically, lay evidence may be sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board must then determine whether the evidence is credible or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of the relevant evidence, the Board must weigh its probative value. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for a respiratory disability, to include as secondary to herbicide exposure The record reflects that the Veteran has chronic obstructive pulmonary disorder (COPD). Therefore, the first Shedden elementthat of a current disabilityis satisfied. The Board also concedes the Veteran's exposure to herbicides. Therefore, the second Shedden element is satisfied. As such, the remaining question is whether there is a link between them. Preliminarily, while COPD has not been added to the list of presumptively connected disabilities due to herbicide exposure, this does not prevent the Veteran from proving causation on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As mentioned in the July 2021 Board remand, a February 2017 VA examiner opined that the Veteran's respiratory disability was less likely than not related to service but was rather a "result of smoking cigarettes for many years." This opinion failed to consider the Veteran's presumed exposure to herbicides and is therefore inadequate. On remand, a July 2021 VA medical opinion was obtained. Therein, the VA examiner opined that the Veteran's COPD was less likely than not related to service, to include herbicide exposure. The examiner reasoned that the Veteran's COPD was "more likely than not related to his long history of smoking cigarettes, beginning at age 17, smoking 2-3 packs per day, and finally quitting smoking in 1981." In other words, after reviewing the claims file and medical literature on the subject, the examiner stated that the Veteran's COPD is not "associated" with the herbicide exposure. The examiner supplied many risk factors for the development of COPD; exposure to herbicides was not among those listed. Based on the foregoing, the Board finds that there is no competent and probative evidence that the Veteran's COPD is related to service, to include herbicide exposure. The July 2021 VA medical opinion provided a strong rationale against the claim. This VA examiner concluded that, after reviewing the claims file and medical literature, his COPD was not "associated" with herbicide exposure, but rather, caused from his "long history" of smoking. The Board affords the July 2021 VA medical opinion significant probative weight as it is well-reasoned and based on a full review of the claims file and medical literature. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, the claim thus fails on a direct basis as Shedden element threea nexus between the Veteran's claimed COPD and his time in service, to include his acknowledged in-service exposure to herbicide agentshas not been established. The Board has considered the lay evidence in this case, in particular the Veteran's statements that he believes his COPD was caused by his service. However, this evidence is not competent evidence, as he is a layperson and lacks the training to provide an adequate opinion regarding medical etiology. Specifically, the Veteran lacks the training to opine whether his COPD is related to an incident in service. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Court.). Also, COPD is a disease of the pulmonary system, and the record does not show that the Veteran has training or education in these medical fields; therefore, lay evidence of the etiology is not competent nexus evidence as it is not capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70. Thus, the Veteran is not competent or qualified, as a layperson, to render an opinion on medical causation. (Continued on next page) In light of the above, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a respiratory disability. Accordingly, the claim must be denied. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, 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.