Citation Nr: 21074015 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 20-25 476 DATE: December 14, 2021 ORDER Service connection for chronic obstructive pulmonary disease (COPD) is granted. Service connection for chronic bronchitis is granted. Service connection for asthma is granted. FINDINGS OF FACT 1. The Veteran is currently diagnosed with the respiratory disorders of COPD, chronic bronchitis, and asthma. 2. During service the Veteran served in the Republic of Vietnam and is presumed to have been exposed to the herbicide Agent Orange. 3. The currently diagnosed respiratory disorders of COPD, chronic bronchitis, and asthma were due to the presumed Agent Orange exposure. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for COPD have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.313, 3.326(a). 2. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for chronic bronchitis have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.313, 3.326(a). 3. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for asthma have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.313, 3.326(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from May 1967 to December 1968. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The Veteran testified at an August 2021 virtual Board hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision grants service connection for all of the issues on appeal, no further discussion of VA's duties to notify and assist is necessary. 1. Service Connection for COPD is Granted. 2. Service Connection for Chronic Bronchitis is Granted. 3. Service Connection for Asthma is Granted. 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. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(c), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. The following diseases are deemed associated with herbicide exposure under VA law: AL amyloidosis, Chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Multiple myeloma, Non-Hodgkin's lymphoma, Parkinson's disease, early onset peripheral neuropathy, Porphyria cutanea tarda, Prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and Soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(c). Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Service connection may be granted for disability that is proximately due to or the result of a service-connected disability. An increase in severity of a non service connected disorder that is proximately due to or the result of a service connected disability, and not due to the natural progress of the non service connected condition, will be service connected. Aggravation will be established by determining the baseline level of severity of the non service connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran and representative assert that one or more currently diagnosed respiratory disorders were caused by exposure to the herbicide Agent Orange during service or are secondary to already service-connected residuals of right spontaneous pneumothorax. The Board notes that during the course of this appeal VA did not obtain a VA medical opinion concerning whether the Veteran's respiratory disabilities were caused by in-service herbicide exposure. Further, the April 2020 VA secondary service connection opinion failed to provide an aggravation opinion, and merely focused on causation; however, as the Board finds the evidence of record sufficient to grant service connection for the respiratory disorders of COPD, chronic bronchitis, and asthma on a direct basis, the Board finds remand for an addendum VA medical opinion to be unnecessary. At the outset, the evidence shows currently diagnosed respiratory disorders of COPD, chronic bronchitis, and asthma. Diagnoses of COPD and chronic bronchitis can be found in the report from a January 2020 VA respiratory examination. A diagnosis of asthma can be found in a March 2016 private respiratory conditions disability benefits questionnaire (DBQ). VA treatment records also reflect that the Veteran took medications to treat asthma during the course of this appeal. During service the Veteran served in the Republic of Vietnam, so is presumed to have been exposed to the herbicide Agent Orange. Service personnel records reflect that the Veteran served in the Republic of Vietnam from October 1967 to May 1968. In a recent July 2021 rating decision, the Agency of Original Jurisdiction (AOJ) made a favorable finding that the Veteran was exposed to the herbicide Agent Orange during service. After a review of all the evidence of record, both lay and medical, the Board finds that the evidence is at least in equipoise as to whether the currently diagnosed respiratory disorders of COPD, chronic bronchitis, and asthma were due to the presumed herbicide/Agent Orange exposure. Multiple VA treatment records, including most recently in June 2021, have listed the Veteran's exposure to Agent Orange during service as a possible cause of COPD. In November 2015, VA received a private medical opinion from the Veteran's pulmonologist, Dr. GD, that the Veteran's "current respiratory condition is causally rated to his Agent Orange exposure while serving in the Army." In a subsequent March 2016 private respiratory DBQ, Dr. GD specifically noted that the Veteran has been exposed to the herbicide Agent Orange during service. In a June 2020 private opinion letter, the Veteran's physician of many years, Dr. JN, agreed with Dr. GD's opinion that it is more likely than not that the Veteran's currently diagnosed respiratory disorders are related to in-service herbicide exposure. While neither Dr. GD nor Dr. JN provided clear rationale for their opinions that the Veteran's respiratory disorders are due to in-service herbicide exposure, the context of the other evidence of record provides a factual context not inconsistent with the opinions rendered. Both doctors had a long history of treatment of the Veteran, and Dr. GD is trained as a pulmonary specialist. VA physicians have also noted the Veteran's in-service herbicide exposure as a possible cause of the COPD. (Continued on the next page) In sum, the Veteran is currently diagnosed with the respiratory disorders of COPD, chronic bronchitis, and asthma, is presumed to have been exposed to the herbicide (Agent Orange) during service, and two private physicians one being the Veteran's personal physician of many years and one being a pulmonary specialist have opined that it is at least as likely as not that the Veteran's respiratory problems are due to in service exposure to the herbicide Agent Orange. There is no direct service connection opinion to the contrary of record. For the above reasons, and resolving reasonable doubt in favor of the Veteran on the question of nexus to service, the Board finds service connection is warranted on a direct basis for the respiratory disorders of COPD, chronic bronchitis, and asthma, as due to presumed in-service herbicide exposure. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As service connection is being granted on a direct basis, there is no need to discuss service connection on a secondary or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.