Citation Nr: 21075202 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 19-20 656 DATE: December 17, 2021 ORDER Entitlement to service connection for a respiratory condition, to include emphysema and chronic obstructive pulmonary disease (COPD) is denied. REMANDED Entitlement to service connection for hypertension, to include as due to service connected ischemic heart disease (IHD) is remanded. Entitlement to service connection for a prostate condition, to include as due to herbicide exposure is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. FINDING OF FACT The Veteran's respiratory condition, to include emphysema and COPD was not caused or aggravated by his service. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory condition, to include emphysema and COPD have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.309(e). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1969 to January 1971, with service in the Republic of Vietnam. The Veteran testified at his August 2021 Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record. Entitlement to service connection for a respiratory condition, to include emphysema and COPD The Veteran contends that his respiratory condition was caused or aggravated by his service to include as due to exposure to herbicides. 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). The Veteran's service treatment records (STRs), to include entrance and separation examinations are silent for any complaints, treatment or a diagnosis for any breathing complaints during service. The Veteran's treatment records to include a lung CT scan show that he has a diagnosis of emphysema. Treatment records document that the Veteran is a heavy smoker. The only references to COPD in the Veteran's treatment records state that the Veteran has a past medical history of COPD. There are no records indicating the Veteran receives treatment for either his emphysema or COPD. At the August 2021 hearing, the Veteran testified that he believes his respiratory condition started two to five years following his service because his breathing felt more restrictive. The Board finds that the Veteran's respiratory condition, to include emphysema and COPD was not caused or otherwise related to his service. There is no competent evidence and no records indicating that the Veteran's respiratory condition began during active service or within a year following service. During the Veteran's August 2021 Board hearing, he testified that he started experiencing restrictive breathing two to five years following service. Given the Veteran's confirmed service in Vietnam, exposure to herbicides is conceded; however, service connection is not warranted on a presumptive basis. Emphysema and COPD are not among diseases presumed to be related to exposure to herbicides and there is no competent evidence relating those conditions directly to his service. See 38 C.F.R. §§ 3.307, 3.309; Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Although lay persons are competent to provide opinions on some medical issues, the diagnosis and etiology of a respiratory disability is outside the realm of common knowledge of a lay person because it involves complex medical issues that go beyond a simple and immediately observable cause-and-effect relationship. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As the preponderance of the evidence is against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include as due to service-connected IHD is remanded. The claim is remanded to obtain a medical opinion. Veteran has a current diagnosis of hypertension and he is service-connected for IHD. Therefore, a VA examination to determine whether the Veteran's hypertension was caused or aggravated by his service-connected IHD is warranted. 2. Entitlement to service connection for a prostate condition, to include as due to herbicide exposure is remanded. The Board is unable to make an informed decision on the issue of service connection for a prostate condition because additional development is necessary. The record is unclear whether the Veteran has a current diagnosis for his prostate condition. The Veteran's claim is for prostate cancer, which is a presumptive disease for Veteran's who served in Vietnam and were presumptively exposed to herbicides. Therefore, on remand, a VA examination is necessary to identify whether the Veteran has a diagnosis for his prostate condition. 3. Entitlement to a compensable rating for bilateral hearing loss is remanded. The claim is remanded to obtain a current examination. The Veteran testified at the hearing that his hearing has worsened since his last VA audiological examination in 2017. Therefore, a new VA examination is warranted. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate VA examiner, to determine the likely etiology of the diagnosed hypertension. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled. Copies of all pertinent records must be made available to the examiner. The examiner is asked to answer the following questions: (a) Is it at least as likely as not (50 percent probability) that any currently diagnosed hypertension was incurred in or is otherwise related to service? (b) If (a) is answered no, is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed hypertension has been (i) caused by or (ii) aggravated by the Veteran's service-connected IHD? The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner's own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. 2. Schedule the Veteran for a VA examination (or tele-health interview, review of the record, etc., if an in-person examination is not feasible) with an appropriate VA examiner, to determine the nature and likely etiology of any diagnosed prostate disability. Copies of all pertinent records must be made available to the examiner. The examiner is asked to answer the following questions: (a) Identify all diagnosed prostate conditions. (b) Is it at least as likely as not (50 percent probability) that any currently diagnosed prostate condition was incurred in or is otherwise related to service? A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner's own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. 3. Schedule the Veteran for the appropriate VA examination to assess the severity of his service-connected bilateral hearing loss. Copies of all pertinent medical records should be made available to the examiner for review. All necessary diagnostic testing should be performed using the appropriate DBQ if available. 4. Confirm that the VA medical opinion provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Perkins, 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.