Citation Nr: 21073142 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-20 782 DATE: December 7, 2021 ORDER Entitlement to service connection for a respiratory disability, claimed as chronic obstructive pulmonary disease (COPD), is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's COPD began during active service, or is otherwise related to an in-service injury or disease, to include exposure to herbicide agents and other environmental hazards. CONCLUSION OF LAW The criteria for service connection for a respiratory disability, claimed as COPD, 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 had active-duty service from August 1971 to April 1974, to include service in the Republic of Vietnam. This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) May 2015 rating decision of the Agency of Original Jurisdiction (AOJ). In March 2019 the Veteran appeared before a Veterans Law Judge. A transcript of that hearing has been reviewed by the Board, and has been associated with the claims file. As the Veterans Law Judge is no longer with the Board, the Veteran was notified in March 2021 that he had the right to appear before another Veterans Law Judge for a hearing. In March 2021 the Veteran, through his representative, waived his right to another Board hearing, and requested that the Board decide the case on the evidence of record. In December 2019 and April 2021, the Board remanded the case to the AOJ for additional development. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Board finds that there has been substantial compliance with the prior remand directives. Entitlement to service connection for a respiratory disability, claimed as chronic obstructive pulmonary disease The Veteran claims that his COPD is caused by, or due to, his military service. Specifically, the Veteran has asserted that his COPD is due exposure to herbicide agents as well as other environmental hazards, including dust, fuels, and solvents while serving as a wrecker driver and rocket fuels. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). After careful consideration of all evidence available in a given case, any reasonable doubt, meaning a point where there is an approximate balance of positive and negative evidence regarding any issue material to the determination, VA will resolve that doubt in the Veteran's favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Veteran has a current diagnosis of COPD, and thus the first Shedden element necessary to establish service connection has been met. As noted above, in his May 2016 Notice of Disagreement, the Veteran stated that his condition is due to "service respiratory exposures," and clarified that it is due to his in-service exposure to herbicide agents. The Board notes that the Veteran was deployed to the Republic of Vietnam, and therefore exposure to herbicide agents is presumed. At his March 2019 Board hearing, the Veteran stated that as a heavy machinery operator, he was exposed to environmental hazards such as "contaminated" dust. The Board finds that the Veteran's in-service experiences fulfill the second Shedden element necessary to establish direct service connection. The Board must now determine whether there is a connection, or nexus, between the Veteran's currently diagnosed COPD and his in-service exposure to herbicide agents and/or occupational and environmental hazards. In this regard, the Veteran's March 1974 separation examination showed that the Veteran reported shortness of breath and a chronic cough due to smoking. However, on examination, the lungs and chest were clinically evaluated as normal. In April 2021, the Board found that the July 2020 VA examination with opinion was inadequate and remanded for an addendum opinion. An addendum opinion was obtained in August 2021. The examiner opined that the Veteran's COPD is "less likely than not ... caused by" the Veteran's military service. The examiner stated that in my opinion, it is less likely than not (less than 50% probability) that the Veteran's Chronic Obstructive Pulmonary Disease had its onset in service or is related to any in-service disease, event, or injury, to include i) exposure to dust, fuels, and solvents while serving as a wrecker driver; ii) exposure to rocket fuels; or iii) exposure to herbicides. Service treatment records and medical records do not sufficiently demonstrate that Chronic Obstructive Pulmonary Disease had its onset in service or is related to any in-service disease, event, or injury, to include i) exposure to dust, fuels, and solvents while serving as a wrecker driver; ii) exposure to rocket fuels; or iii) exposure to herbicides The examiner continued that COPD is a chronic inflammatory lung disease that causes obstructed airflow from the lungs. Symptoms include breathing difficulty, cough, mucus (sputum) production and wheezing. It's typically caused by long-term exposure to irritating gases or particulate matter, most often from cigarette smoke. The main cause of COPD in developed countries is tobacco smoking. In the vast majority of people with COPD, the lung damage that leads to COPD is caused by long-term cigarette smoking. The examiner noted that the fact that the Veteran has smoked one-and-a-half packs of cigarettes for over 40 years is the "main cause" of his COPD. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Importantly, a disability will not be considered service-connected on the basis that it resulted from injury or disease attributable to the claimant's use of tobacco products during service. 38 U.S.C. § 1103; 38 C.F.R. § 3.300. Here, as the VA examiner clearly found that the Veteran's COPD was caused by his long history of tobacco use, service connection for such disorder is precluded by law. 38 C.F.R. § 3.300 (1). As noted above, the Veteran stated that his COPD is caused by his in-service exposure to herbicide agents and environmental exposures. However, as he is not a medical professional, he is unable to provide testimony regarding the etiology of his COPD. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the VA medical opinion, which indicates that the Veteran's COPD is due to his long history of tobacco use. Thus, the weight of the probative, competent, and credible medical evidence of record shows that the Veteran's COPD is not caused by, due to, or otherwise related to his military service. Rather, it has been attributed to the Veteran's long term tobacco use. Therefore, the third Shedden element necessary to establish service connection has not been fulfilled. Based on the above, the Board finds that the preponderance of evidence is against the Veteran's claim for entitlement to service connection for a respiratory disability, claimed as COPD. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). J. N. MOATS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, 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.