Citation Nr: 21076367 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 17-51 611 DATE: December 23, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) to include as due to exposure to Agent Orange (herbicide agents), asbestos, and/or contaminated water at Camp Lejeune, is denied. FINDING OF FACT COPD was not manifested in service, and the preponderance of the evidence is against a finding that such disease is otherwise related to the Veteran's service, to include as due to exposure to herbicide agents, asbestos, and/or contaminated water at Camp Lejeune. CONCLUSION OF LAW Service connection for COPD, to include as due to exposure to herbicide agents, asbestos, and/or contaminated water at Camp Lejeune, is not warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty in the United States Marine Corps from December 1970 to December 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision. In August 2019, the case was remanded for further development. Entitlement to service connection for COPD is denied. The Veteran claims that his COPD is related to his (VA-conceded) exposures to herbicide agents, contaminated water at Camp Lejeune, and\or asbestos in service. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially 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). To substantiate a claim of service connection, there must be evidence of: a present disability; incurrence or aggravation of a disease or injury in service; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A Veteran who, during military service, served in the Republic of Vietnam during the Vietnam era (January 1962 to May 1975) is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active service and has contracted an enumerated disease, the veteran is entitled to a presumption of service connection for such disease even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Personnel records note that the Veteran served on the USS Duluth, and the ship was in Vietnam contiguous waters from February 1, 1972 to February 3, 1972, April 1, 1972 to May 6, 1972, May 21, 1972 to May 24, 1972, and May 25, 1972 to June 10, 1972. Therefore, VA has conceded that the Veteran was exposed to herbicide agents. However, COPD is not listed as disease entitled to a presumption of service connection based on exposure to herbicide agents under 38 U.S.C. § 1116 and 38 C.F.R. § 3.309(e). (The only respiratory disability currently recognized as associated with exposure to Agent Orange is respiratory cancers). See 38 C.F.R. § 3.309(e)). Although COPD is not a disease entitled to presumption of service connection based on exposure to herbicide agents under 38 U.S.C. § 1116 and 38 C.F.R. § 3.309(e), the Veteran may nonetheless substantiate the claim under that theory of entitlement by competent affirmative evidence indicating that the disease is related to such exposure. See Combee v. Principi, 4 Vet. App. 78 (1993). Service connection is expressly precluded for a disability or death related to a Veteran's tobacco use in service. 38 U.S.C. § 1103; 38 C.F.R. § 3.300. However, service connection will not be precluded if the disability or death can be service-connected on some other basis than the use of tobacco products during service. Effective March 14, 2017, VA amended 38 C.F.R. §§ 3.307 and 3.309 to provide a presumption of service connection for certain diseases based on exposure to contaminants in the water supply at Camp Lejeune. Two of the eight water treatment facilities supplying water to the base were contaminated with trichloroethylene (TCE), tetrachloroethylene (PERC), or perchloroethylene (PCE) from an off-base dry-cleaning facility. Essentially, as amended, 38 C.F.R. §§ 3.307 and 3.309 establish a presumption of service connection for veterans who served at Camp Lejeune for no less than 30 days (consecutive or nonconsecutive) from August 1, 1953 to December 31, 1987, and have a diagnosis of any of the following eight diseases, even though there is no record of such disease during service: adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin's lymphoma, and Parkinson's disease. 38 C.F.R. §§ 3.307(a), 3.309(f). Such listed diseases shall have to become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(7)(ii). Notably, COPD is not among the eight listed diseases warranting this presumptive service connection. As noted above, service connection may nonetheless be established as due to such exposure by affirmative evidence supporting that theory of entitlement. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's service personnel records confirm that he was stationed at Camp Lejeune primarily from August 1972 to September 1973, and later in 1974 (thereby easily meeting the 30-day service at Camp Lejeune requirement). An April 1973 service treatment record (STR) notes that he sought treatment for a sore throat, sinus congestion, and coughing at night. On examination, chest sounds were normal and he was directed to take Robitussin and Cepacol. A February 1974 STR notes that the Veteran reported sore throat, dizziness, and sinus congestion. The provider noted that he had a productive cough with yellowish green sputum. The impression was possible pneumonia. On November 1974 separation report of examination, bilateral wheezing was noted, and the Veteran reported smoking 1.5 packs of cigarettes daily. A December 2012 chest X-ray showed that the cardiomediastinal silhouette was within normal limits. The lungs were hyperinflated, and no suspicious pulmonary nodule was present. There was no consolidation or effusion, the pulmonary vasculature was within normal limits, and no acute cardiopulmonary process was shown. COPD was shown. A July 2013 VA treatment record notes that a January pulmonary function test (PFT) showed moderate airflow obstruction and mild gas exchange defect. A September 2018 VA treatment record notes that the Veteran continued to smoke 1 pack per day, and on examination, his lungs had coarse rhonchi, and there were scattered wheezes in b upper and lower lungs. On September 2019 VA respiratory diseases examination, COPD was diagnosed. The Veteran reported that he has been having breathing problems since service. The examiner opined that it was less likely than not that the Veteran's COPD was related to his service, to include as due to asbestos exposure. She noted on November 1974 separation examination that bilateral wheezing was indicated, and the Veteran reported smoking 1.5 packs of cigarettes daily, but he was not diagnosed with a breathing disorder or treated at that time. The examiner indicated that wheezing can be secondary to other conditions such as an upper respiratory infection and nasal congestion, which can occur in smokers. She noted that the Veteran reported that he had smoked a pack of cigarettes daily since the age of 17 and did not see a medical provider for breathing difficulty until 2012, when medication for COPD was prescribed. The examiner noted there was no history of COPD in the medical record from 1974 to 2012 and that a 2012 chest X-ray did not show an acute cardiopulmonary process or was otherwise indicative of asbestosis. She further opined that it was at least as likely as not that the Veteran's COPD was due to his long history of smoking. In a July 2020 VA medical opinion, the provider opined that it was less likely than not that the Veteran's COPD is related to his service, to include as due to exposure to asbestos. She indicated that there was no medical evidence that the Veteran's currently diagnosed COPD was caused or aggravated by service, to include as due to exposure to asbestos while serving on the USS Duluth or as an armor crewman. The provider noted that the Veteran was treated for possible pneumonia on February 5, 1974 with antibiotics (without further follow up noted). She indicated that the separation examination dated in November 1974 documented the Veteran's bilateral wheezing, and the (military) provider did not diagnose a pulmonary disorder, but noted that the Veteran smoked 1.5 packs per day (of cigarettes) at the time of separation. The provider indicated that the etiology of the wheezing noted on separation examination was not specifically noted, but that it was possibly due to a transient respiratory complaint such as an upper respiratory infection or phlegm production, which is common in smokers. She indicated that the Veteran was noted to have a diagnosis of COPD in December 2012 (many years after his separation from military service) and that there were no medical records from separation until 2012 available for review that documented worsening lung symptoms or COPD. A September 2018 chest X-ray appeared normal, and did not show any significant COPD or signs of asbestos exposure, and a CT scan of the chest was also negative for any signs of asbestos exposure. The provider further opined that the most likely etiology of the Veteran's COPD was his long history of smoking and explained that the medical literature did not support that asbestos exposure was causative of COPD. She noted that inhalational exposure (i.e., smoking) was a possible or definite risk factor for COPD. The preponderance of the competent (medical) evidence is against a finding that the Veteran's current COPD is etiologically related to his service. It is not in dispute that he now has COPD. His service personnel records show that he was stationed at Camp Lejeune primarily from August 1972 to September 1973, and later in 1974. Accordingly, his exposure to contaminated drinking water at Camp Lejeune is conceded, and not in dispute. The critical question remaining is whether there is competent evidence of a nexus between his service, to include his exposure to contaminated drinking water therein, and his COPD. As noted above, inasmuch as COPD is not listed among the 8 diseases for which presumptive service connection based on exposure to contaminated water at Camp Lejeune is warranted, service connection for such diseases/disorders based on such exposure may not be presumed. 38 C.F.R. §§ 3.307(a), 3.309(f). Furthermore, as noted above, while VA has conceded the Veteran's exposure to herbicide agents in service; COPD is not a disease listed in 38 C.F.R. § 3.309(e), and therefore the presumptive provisions under 38 U.S.C. § 1116 do not apply. COPD is not noted in the Veteran's service treatment records (STRs). A February 1974 STR notes treatment for pneumonia that apparently resolved (due to no record of follow up treatment). Wheezing was reported on November 1974 separation examination, and it was noted that the Veteran smoked 1.5 packs of cigarettes daily. Although the military provider did not note an etiology for the wheezing, subsequent VA examiners suggested that such wheezing was due to an upper respiratory infection and/or phlegm which commonly occurs in smokers. Post service treatment records note that the Veteran began smoking prior to service and has continued smoking throughout the period on appeal, and COPD was first diagnosed more than 30 years after service. Accordingly, service connection for COPD on the basis that such disease became manifest in service and persisted is not warranted. What remains for consideration is whether the Veteran's COPD is otherwise etiologically related to his service. The September 2019 and July 2020 VA opinions are probative evidence against his claim and the Board finds them (cumulatively) persuasive. The Board finds most probative the July 2020 VA opinion which notes that the record was reviewed, and the provider considered the Veteran's lay assertions, in-person examination results, and the prior VA opinion. The provider opined that it was less likely than not that the Veteran's COPD was related to his service. She noted that he was seen in service for pneumonia but that there was no follow-up (suggesting it resolved) and that although wheezing was noted on separation examination, noting that the Veteran reported smoking 1.5 packs of cigarettes daily, she indicated that the wheezing could be related to a respiratory infection or phlegm (common in smokers). The provider also indicated that the Veteran was noted to have a diagnosis of COPD in December 2012 (many years after his separation from military service) and that there were no medical records from separation until 2012 available for review documenting worsening lung symptoms or COPD. A September 2018 chest X-ray appeared normal, and did not show any significant COPD or signs of asbestos exposure, and a CT scan of the chest was also negative for signs of asbestos exposure. The provider opined that the most likely etiology of the Veteran's COPD was his long history of smoking (which began prior to service and continued throughout the period on appeal) and explained that the medical literature did not support that asbestos exposure was causative of COPD. The consulting provider is a medical professional, and is competent to offer the opinion. The opinion reflects a familiarity with the Veteran's entire record and includes rationale that cites to both supporting factual data and medical principles. The Board finds it to be probative evidence in this matter, and persuasive. The Board acknowledges the Veteran's sincere beliefs that his COPD is related to his exposure to herbicide agents, contaminated water, and/or asbestos. However, he is a layperson, and therefore is not competent to provide a competent (and thus probative) opinion in this matter. Because COPD is not listed in 38 C.F.R. § 3.309(e) (as a disease related to exposure to herbicide agents), to warrant consideration under the presumptive provisions in 38 U.S.C. §1116, or in 38 C.F.R. §§ 3.307(a), 3.309(f) (as a disease related to Camp Lejeune water contamination) to substantiate the claim under such theory of entitlement, there must be affirmative evidence that the COPD is related to such exposure. The etiology of a respiratory disease first diagnosed more than three decades after service is a medical question beyond the scope of lay observation; it requires medical expertise. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). The Veteran has not presented any competent (medical opinion/textual) evidence supporting that his COPD may be related to exposure to herbicide agents, contaminated water from Camp Lejeune, or asbestos. Considering the foregoing, the preponderance of the evidence is against this claim. Therefore, the appeal in the matter must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bayles, 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.