Citation Nr: 21074328 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 09-24 563 DATE: December 14, 2021 ORDER Entitlement to service connection for chronic bronchitis is granted. Entitlement to service connection for chronic asthma is granted. REMAND Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to chronic bronchitis and chronic asthma, is remanded. FINDINGS OF FACT 1. The Veteran is presumed sound at service entrance. 2. The Veteran's exposure to herbicide agents is presumed due to his service in Vietnam, and the Board concedes his exposure to burning human waste and asbestos as consistent with the circumstances of his service. 3. The Veteran's chronic bronchitis onset in service. 4. The Veteran's chronic asthma onset in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for chronic bronchitis are met. 38 U.S.C. §§ 1101, 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303,. 2. The criteria for entitlement to service connection for chronic asthma are met. 38 U.S.C. §§ 1101, 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1965 to July 1967, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2009 and December 2011 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2014, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. In a February 2015 decision, the Board consolidated the Veteran's claims into a single claim for a lung disorder and remanded the appeal for evidentiary development. In August 2017, the Board requested a medical opinion from a subject matter expert (a pulmonologist employed by the Veterans Health Administration (VHA), hereinafter referred to as the VHA expert), to assess the potential relationship between the Veteran's respiratory disorders and service. The opinion was rendered in November 2017, and per the Board's subsequent clarification request, an addendum thereto was furnished in March 2018. The Veteran was then provided with copies of the VHA expert's opinions and responded that he had no further related evidence or argument to submit. In May 2018, May 2020, and most recently in July 2021, the Board remanded the appeal again for further development. Service Connection 1. Entitlement to service connection for chronic bronchitis is granted. 2. Entitlement to service connection for chronic asthma is granted. Service connection may be established for disability resulting from injury or disease incurred during active service. 38 U.S.C. § 1110. 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). Generally, to establish service connection the evidence 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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). There is also a rebuttable presumption of service connection for diseases associated with herbicide agent exposure. 38 U.S.C. §§ 1113, 1116; 38 C.F.R. §§ 3.307, 3.309. Exposure to herbicides during service is presumed for veterans stationed in the Republic of Vietnam between January 9, 1962 and May 7, 1975. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Diseases presumptively associated with herbicide agent exposure are listed in 38 C.F.R. § 3.309(e). Notably, chronic bronchitis and chronic asthma are not among the presumptive diseases associated with herbicide agent exposure. However, even if a veteran is found not to be entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). I. Presumption of Soundness When there is an indication that a disorder for which the Veteran seeks service connection preexisted service, the presumption of soundness must be addressed. The presumption of soundness provides that a Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment into service and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). In this case, neither chronic bronchitis nor chronic asthma were noted on the Veteran's July 1965 pre-induction examination. The examination report reflected a normal lungs and chest evaluation. Therefore, the presumption of soundness is for application and to rebut this presumption VA must demonstrate that there is clear and unmistakable evidence that the disability both existed prior to enlistment into service and was not aggravated by such service. Here, the Board finds that the onerous burden is not established, and such clear and unmistakable evidence does not exist as to a preexisting condition, thus the Board need not address the aggravation prong. On the Veteran's Report of Medical History at service separation, he noted he had bronchial asthma until the age of 14. See June 1967 service treatment record (STR) (Emphasis added). During the April 2015 examination, the Veteran reported the onset of his asthma in childhood. The VA examiner indicated the Veteran's asthma preexisted service and was not aggravated therein; however, the examiner employed the incorrect legal standard. Thus, it is inadequate. Most recently, a January 2021 VA examiner opined the Veteran's asthma and bronchitis clearly and unmistakably preexisted his military service and were clearly and unmistakably not aggravated by such service. However, in her rationale, the examiner stated that there was "conflicting evidence" as to whether his condition preexisted service. Thus, the available medical evidence is not unequivocal and does not meet the onerous burden of "clear and unmistakable evidence" of a pre-existing respiratory disability. Accordingly, the Board finds that the presumption of soundness cannot be rebutted, and the chronic asthma and chronic bronchitis claims become ones for direct service connection. See Wagner, supra (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claim is converted into a normal claim for service connection). II. Service Connection The Veteran asserts that his chronic asthma and chronic bronchitis were incurred during service. The Board agrees. The Veteran has current diagnoses of chronic asthma and chronic bronchitis. See January 2021 VA examination report. Thus, element one for establishing service connection is met for all three disabilities. As to element two, in-service incurrence of a disease or injury, the Veteran's Vietnam service during the applicable period is confirmed. See DD 214 Form. Thus, exposure to herbicide agents in Vietnam is conceded. Moreover, the Veteran's service treatment records (STRs) note "bronchitis with mild asthmatic component." See November 1965 STR. Lastly, the Board finds that his assertions regarding exposure to human burning waste and asbestos are conceded, as they are consistent with the circumstances of his service, and therefore credible. 38 U.S.C. § 1154(a). Thus, element two for establishing service connection is also met for these disabilities. Regarding the final element, nexus, the Board notes that the VHA expert's November 2017 opinion and March 2018 clarification statement are in favor of establishing a nexus for chronic bronchitis and asthma. In this regard, the Board acknowledges that it subsequently remanded the claim three times, as the Veteran's entrance examination report had not yet been secured and there was a medical question as to whether asthma and bronchitis may have preexisted service. As discussed above, the Veteran's entrance examination is now of record, and the VA opinions of record are not sufficient to rebut the presumption of soundness in this case. The Board has already found that the June 2009, December 2011, February 2020 and January 2021 opinions against the claim are inadequate and of no probative value. Moreover, the most recent August 2021 VA opinion against the claim is also inadequate, as it relies on a lack of documented treatment, which is not dispositive. Moreover, the Veteran has competently and credibly reported persistent breathing problems since service and that he had been treated for these conditions by other doctors since military service, but that those records were not available. See December 2013 VA Form 9. Since the August 2021 VA examiner's opinion against the claim does not consider these competent and credible reports of the Veteran, it is of no probative value. This just leaves the November 2017 VHA expert opinion and March 2018 addendum, which the Board may now consider in conjunction with the Veteran's subsequently obtained entrance examination. The VHA expert opined in November 2017 that the Veteran's "bronchitis with asthmatic component" had its initial onset in service, as a result of his in-service environmental exposures. See also January 2021 VA examination report, noting a diagnosis of asthma in 1965. In March 2018, the Board requested clarification as to whether the Veteran's current asthma onset in service, and the VHA expert answered again in the affirmative in March 2018, adding that the likelihood of this correlation was at least 50 percent or higher, again noting bronchitis with an asthmatic component was due to service exposures, and clarifying that the Veteran currently had "chronic bronchitis." The opinion is unequivocally stated, consistent with the evidence of record, and supported by the rationale that the Veteran's in-service environmental exposure triggered the Veteran's initial development of asthma and chronic bronchitis, the Board finds that this medical opinion is probative evidence supporting these claims. Thus, service connection is established. 3. Entitlement to service connection for COPD, to include as secondary to chronic bronchitis and chronic asthma, is remanded. The Board sincerely regrets the additional delay in this case, and realizes this appeal has been pending for many years. However, the Board has yet to secure an adequate medical opinion in relation to diagnosed COPD. Specifically, in finding no relationship between COPD and now service-related bronchitis and asthma, the August 2021 VA examiner improperly relied on a temporal requirement that is not outlined in 38 C.F.R. § 3.310. Frost v. Shulkin, 29 Vet. App. 131 (2017). Moreover, in addressing direct service connection, the examiner failed to consider the Veteran's competent and credible lay statements as to continuous respiratory problems since service hat he self-treated and his inability to obtain relevant records of private treatment of his respiratory disability that were more contemporaneous to service. See December 2013 VA Form 9. Accordingly, an addendum opinion is needed on remand. This issue is remanded for the following: Obtain an addendum opinion from an examiner other than the September 2021 VA examiner, preferably a pulmonologist, if available. A new examination is not needed unless the examiner determines otherwise. After reviewing the Veteran's claims file, the examiner is asked to address the following: (a) Is it at least as likely as not (50 percent or greater probability) that COPD had its onset during service, or is otherwise related to service, to include presumed exposure to herbicide agents, burning human waste, and asbestos therein? In addressing this question, please discuss: (i) the October 1966 STRs; (ii) the November 1965 STRs indicating wheezing and diagnosing bronchitis with mild asthmatic component; (iii) presumed in-service herbicide agent exposure; (iv) presumed in-service exposure to burning human waste; (v) presumed in-service exposure to asbestos; (vi.) Dr. Syed's November 2014 opinion; (vii.) the Veteran's report of continuous respiratory problems since service, which he self-treated; and (viii.) the Veteran's report that he was treated for his respiratory problems by other physicians since his separation from service but that those records are no longer available (see December 2013 VA Form 9). In addressing this question, the examiner must accept items (a)(vii) and (a)(viii) as true, despite the absence of documentation of the same, and opine whether a nexus between COPD and service is "medically plausible" based on all elements outlined above. Failure to accept the above statements as true will render the opinion inadequate. Basing a negative opinion on the lack of documented complaints and treatment in service will render the opinion inadequate. (b) Is it at least as likely as not (50 percent or greater probability) that COPD: (1) is proximately due to asthma and/or bronchitis; or (2) has been aggravated (worsened) by asthma and/or bronchitis? In addressing questions (b)(1) and (b)(2), please note that it is not necessary that asthma or bronchitis be service-connected, or even diagnosed, at the time his COPD is incurred, and reliance on the fact that COPD was "diagnosed" before asthma and/or bronchitis in support of a negative opinion will render it inadequate. Please provide a robust and detailed rationale based on medical principles to support any conclusions reached. If unable to opine without speculation, please support your conclusion in this regard. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Asante, Ruby 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.