Citation Nr: 21073834 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 17-09 477 DATE: December 10, 2021 ORDER Service connection for chronic obstructive pulmonary disease (COPD) is denied. FINDING OF FACT The Veteran's COPD was not shown in service, or for several years thereafter, and is not otherwise related to his active duty service, to include his exposure to herbicide agents therein. CONCLUSION OF LAW The criteria for service connection for COPD have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1968 to February 1970. In January 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. In March 2021, the Board remanded the current claim for additional development to obtain information regarding the qualifications of the VA examiner who performed the January 2018 VA examination. In September 2021, the Regional Office (RO) obtained the relevant educational and training/certification information regarding the January 2018 VA examiner. Following such development, the Veteran has not expressed dissatisfaction with this information and has not otherwise requested more information regarding the examiner's qualification. As such, the Board finds that VA has satisfied its duty to assist in this regard and no further development is required. The Board notes that the Veteran has no representation for the issue addressed in this decision. However, he has other issues on appeal for which he is represented (increased rating for a psychiatric disorder; service connection for headaches, sleep apnea, and hypertension; and a TDIU). Those issues are addressed in separate Board decision. Entitlement to service connection for COPD. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish service connection, a Veteran must show: (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, the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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). For purposes of establishing service connection for a disability resulting from exposure to herbicide agents, a veteran who had active service in the Republic of Vietnam during the Vietnam Era, beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. §§ 3.307(a), 3.309(e). Presumptive herbicide exposure requires a presence on the ground or in the inland waterways of the country; service on deep-water offshore vessels is insufficient to trigger the presumption. 38 C.F.R. § 3.307(a)(6)(iii); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009). The applicable criteria provide that a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). VA has determined that there is no positive association between exposure to herbicide agents and any other condition for which it has not specifically been determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586 -57589 (1996). As COPD is not listed among the diseases enumerated under 38 C.F.R. § 3.309(e), the herbicide agents presumptive provisions of 38 C.F.R. § 3.307 do not apply as to that disability. Nevertheless, the United States Court of Appeals for the Federal Circuit has determined that a claimant who suffers from a disability that is not listed among those for which presumptive service is afforded based on exposure to herbicide agents is not precluded from establishing service connection for such disability as due to herbicide agent exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The evidence in support of the Veteran's claim consists of his general contention that his COPD is related to his active duty service and, more specifically, related to herbicide agent exposure. See July 2019 Fully Developed Claim. The available service treatment records (STRs), to include the February 1970 service separation examination report, are silent for any complaints, findings, treatment, or diagnoses related to a breathing/lung disorder, to include any symptoms for shortness of breath, pain/pressure in chest, or chronic cough. The Veteran's post-service treatment records document respiratory/pulmonary problems only as early as July 2013, over 40 years after separation from service. Additionally, the Veteran's VA treatment records dated prior to July 2013 show no respiratory issues to include no shortness of breath and pulmonary/chest clear to auscultation (CTA). The Board notes that, while the Veteran has also contended that his breathing problems started when he got out of service, he has offered no support for this argument and has not alleged (nor submitted competent evidence to show) that COPD had its onset in service and continued since. As such, his statements are outweighed by the more probative VA treatment records that suggest onset of his respiratory problems occurred decades after his service. Consequently, service connection for COPD on the basis that such manifested in service and persisted is not warranted. Notably, despite the Veteran's observation that his breathing problems started when he got out of service, he has not contended that his COPD began during service and continued since. Rather, it is the Veteran's contention, generally, that his COPD is a result of in-service exposure to herbicide agents (including Agent Orange). See November 2017 Fully Developed Claim and January 2021 Hearing Transcript. The Veteran has verified service in the Republic of Vietnam and is therefore presumed to have been exposed to herbicide agents. As indicated above, however, the Veteran's COPD is not on the list of diseases entitled to presumptive service connection due to herbicide agents exposure. See 38 C.F.R. § 3.309(e). While the Veteran is not precluded from establishing entitlement on a direct incurrence or other basis, aside from his bare assertion that his COPD is associated with in-service exposure to herbicide agents, there is no competent evidence establishing or even indicating that an etiological connection exists between the Veteran's diagnosis of COPD and his in-service herbicide agent exposure. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). The Veteran's postservice treatment records only document the treatment for COPD and do not include any indication that this disorder may be related to his military service. The Veteran was also afforded a VA respiratory examination in January 2018 to assess the etiology of his COPD. The examiner conducted an in-person examination and reviewed the evidence of record. The Veteran reported that he was diagnosed with COPD about 2012 and last saw a respiratory doctor in 2017. The VA examiner indicated she was unable to provide a medical opinion as to whether the Veteran's COPD was etiologically related to in-service herbicide agent exposure without resorting to speculation because there was no medical literature to support this claim. As the examiner's conclusion appears to be predicated on a lack of knowledge among the medical community and not just insufficient knowledge of the specific medical question at hand, the Board finds this opinion to be adequate and probative. Lyles v. Shulkin, 29 Vet. App. 107, 120 (2017) (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). Her conclusion also appears to be based on the in-person examination of the Veteran and evaluation of the Veteran's reports and treatment history that show the Veteran's COPD developed decades after service. [Parenthetically, the Board notes that the VA examiner indicated that COPD may be a presumptive illness per the regulations. As noted above, however, COPD is not a presumptive condition.] The Board acknowledges that, generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). However, a lay person, such as the Veteran, is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation, and his lay statements are not competent regarding the etiology of his COPD. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Board also notes that, while the Veteran appears to challenge the qualifications of the January 2018 VA examiner, the Veteran did not otherwise challenge the adequacy of the examination conducted and medical opinion provided. See February 2021 Francway Request. As previously indicated, the Board finds the January 2018 VA medical opinion to be adequate. In sum, the competent and probative evidence of record fails to indicate that the Veteran's COPD had its onset in, or is otherwise related to service including as a result of presumed exposure to herbicide agents. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply and service connection for COPD must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.