Citation Nr: 21075517 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 11-25 604 DATE: December 20, 2021 ORDER Entitlement to service connection for moderate restrictive lung disease, to include as due to herbicide agent and/or asbestos exposure, is granted. Entitlement to service connection for obstructive sleep apnea (OSA), to include as due to herbicide agent and/or asbestos exposure, is granted. FINDINGS OF FACT 1. The preponderance of the evidence indicates that the Veteran's moderate restrictive lung disease is causally related to service, to include exposure to herbicide agents and/or asbestos in Vietnam. 2. The preponderance of the evidence indicates that the Veteran's OSA is causally related to service, to include exposure to herbicide agents and/or asbestos in Vietnam. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for moderate restrictive lung disease, to include as due to herbicide agent and/or asbestos exposure, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for OSA, to include as due to herbicide agent and/or asbestos exposure, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps (USMC) from February 1965 to February 1969, to include service in the Republic of Vietnam (Vietnam). The Veteran's awards and decorations for his service include a Combat Action Ribbon and a Vietnam Cross of Gallantry, among many others. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by a VA Regional Office (RO). This case was most recently before the Board in February 2021, at which time the appeal was remanded to afford the Veteran a new VA examination to determine the etiology of his claimed lung or respiratory disorder. Such an examination was obtained in May 2021 and has been found adequate for adjudicative purposes. Therefore, there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board wishes to note that the Veteran's claim has been recharacterized as noted above to reflect the current diagnoses associated with the original March 18, 2009, claim seeking service connection for a generalized claim of lung and/or respiratory disorder. Based on the evidence and looking at the evidence in the light most favorable to the Veteran, the Board finds the general claim seeking service connection for a lung and/or respiratory condition manifested by nasal and respiratory congestion to encompass both current diagnoses of OSA and moderate restrictive lung disease. Under Clemons, the Board has expanded the scope of the Veteran's initial March 18, 2009, claim to include OSA as well as restrictive lung disease. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that a single claim can encompass more than one condition and that the scope of a claim is generally not limited to a specific diagnosis). Specifically, when the Veteran filed his initial claim back in March 2009, he claimed unspecified symptoms of nasal congestion, shortness of breath, and nasal discharge. These symptoms, based on the medical evidence of record, including several VA examinations, indicate they encompass the current diagnoses of OSA and restrictive lung disease. As such, the scope of the Veteran's claim has been expanded to include these current diagnoses. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1.Entitlement to service connection for moderate restrictive lung disease, to include as due to herbicide agent and/or asbestos exposure, is granted. 2.Entitlement to service connection for OSA, to include as due to herbicide agent and/or asbestos exposure, is granted. The Veteran seeks service connection for a lung or respiratory condition which he contends is related to service. Specifically, the Veteran asserts that any lung or respiratory condition he currently suffers from had its onset in service and is the result of herbicide agent and/or asbestos exposure during service in Vietnam. The symptoms of which he has experienced since service include chronic nasal congestion, shortness of breath, and nasal discharge. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, 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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The nexus element may be fulfilled by (1) a nexus opinion or (2) competent and credible evidence showing that the veteran has experienced frequent and persistent symptoms of the disease since service. 38 U.S.C. § 1154 (a); 38 C.F.R. §§ 3.303 (a), (d); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases may be presumed to have been incurred in service if they manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2019). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A veteran, who during active military, naval or air service, served in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed during his or her service to an herbicide agent, to include Agent Orange, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). The following diseases will be deemed service connected if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service: AL amyloidosis, chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus); Hodgkin's disease; chronic lymphocytic leukemia (CLL); multiple myeloma; Non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease. 38 C.F.R. § 3.309(e). Even if a claimed disorder does not qualify for the presumption, however, service-connection may still be established by showing that a disorder resulting in disability was in fact causally linked to such exposure. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Considering the evidence as a whole, and resolving any doubt in favor of the Veteran, the Board finds the preponderance of the evidence supports a finding that his restrictive lung disease and OSA are related to his service, to include exposure to herbicide agents. As such, service connection is granted. At the outset, the Board notes that the Veteran's service in Vietnam has been confirmed and exposure to herbicide agents as a result of that service is presumed. It is further noted that the Veteran has a current diagnosis of moderate restrictive lung disease and OSA. These disabilities, however, are not presumptive conditions pursuant to 38 C.F.R. § 3.309(e). Nonetheless, the Veteran's restrictive lung disease and OSA may still be granted service connection with a showing that they were caused by herbicide agent exposure or are otherwise directly related to service. See Combee, 34 F.3d at 1043. Therefore, the remaining question before the Board is whether the Veteran's current moderate restrictive lung disease and OSA are related to service, to include exposure to herbicide agents and/or asbestos. The Veteran's service treatment records (STRs) are silent for any treatment, complaints, or diagnosis of any lung or respiratory condition. However, in correspondence from September 2016, the Veteran explained that during his service in Vietnam when he first asked to go to sick bay, "the DI hit and beat on me [which] I took as a warning that I was not able to ask or go to sick bay". He further explained, that "when I did have to go in Vietnam, [to sick bay] they were never noted in my STRs". He has reported to several VA medical examiners that prior to service, he never had any allergies or respiratory problems. In contrast, he reported his symptoms began during service and when he returned home from Vietnam in 1969 his nasal congestion was so bad that he "wore a bandana all the time due to the snot and breathing" difficulties. See May 2021 Respiratory Conditions VA examination. In May 2016, a VA examiner opined that the Veteran's respiratory or lung disorder was not related to his active service. Specifically, the examiner found the Veteran did not have a current diagnosis, however it was noted that he had untreated tuberculosis (TB), and that it was unsafe to test him at that time. A September 2017 Board decision held the May 2016 opinion to be inadequate to decide the claim and therefore remanded. In March 2018, the Veteran was afforded another VA examination at which time the examiner found that he had a diagnosis of restrictive lung disease. He opined that it was less likely than not that this condition was a result of active service as the Veteran reported the onset of the condition in 2012 and that a nexus had therefore, not been established. In that regard, the March 2018 examiner noted that the Veteran was a lifelong smoker, exposed to second-hand smoke as a child, had sleep apnea, and had no indications from imaging studies of asbestos exposure. Moreover, the examiner noted that the Veteran had pulmonary edema following a heart attack in 2012. In February 2021, the Board found the March 2018 VA medical opinion to be inadequate for failure to appropriately consider the Veteran's statements regarding onset and continuity of symptoms nor did the opinion contain an adequate supporting rationale. Subsequent to the Board's February 2021 remand, the Veteran was afforded examinations in May 2021. The examiner diagnosed the Veteran with moderate restrictive lung disease and OSA. He noted the Veteran's reports of onset in service with difficulty breathing, congestion, and mucus discharge. It was further noted that the Veteran served in Vietnam and currently has decreased lung elasticity resulting in shortness of breath with and without exertion. A history of tobacco use, as well as a lack of documented complaints, treatment, or diagnosis in service treatment records was further noted. Ultimately, the examiner opined that the Veteran's medical records support that any currently diagnosed conditions "at least as likely as not had [their] onset during any period of service...to include any exposure to asbestos and/or herbicides". The examiner explained that the "Veteran served within the Vietnam era with multiple exposures to impair lung sensitivity causing excessive nasal and upper airway congestion" as evidenced by his account of in-service events and the subsequent diagnosis of OSA in 2007 after a sleep study and restrictive lung disease in 2013 per VA medical documentation and X-rays. It was further explained that "chronic daytime and nocturnal congestion ...increase the workload and strain of the lungs and heart" progression of which leads to heart disease and/or respiratory failures and defects of the lungs including restrictive lung disease. In this case, the Board finds the May 2021 medical opinion to be highly probative as the examiner considered all contentions and lay statements of the Veteran including service in Vietnam, exposure to herbicide agents, and his extensive medical history with appropriate rationale. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). In addition, the examiner's opinion helps to explain the contention that symptoms of chronic nasal congestion can progress into later conditions such as OSA and restrictive lung disease. Furthermore, there is no competing adequate medical opinion of record. The Board thus finds that the May 2021 opinion is dispositive of the issue at hand. (Continued on the next page) As such, the Board finds that this medical opinion, when coupled with the other evidence of record, is the most probative evidence and supports a finding that service connection for moderate restrictive lung disease and OSA is warranted. Thus, viewing the evidence as a whole, the Board finds the preponderance of the evidence supports a finding that the Veteran's current diagnosis of moderate restrictive lung disease and OSA are causally related to his military service in Vietnam. Accordingly, service connection for OSA and moderate restrictive lung disease is granted. RACHEL E. JENSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.