Citation Nr: 21077338 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 16-37 797 DATE: December 29, 2021 ORDER The claim for entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. The claim for entitlement to service connection for a respiratory disorder with allergic manifestations to include asthma, also known as allergic bronchitis, is denied. FINDINGS OF FACT 1. The Veteran is not diagnosed with COPD during the appeal period. 2. The Veteran's chronic respiratory disorder with allergic manifestations to include asthma, also known as allergic bronchitis, is not the result of active service or any incident therein, nor is it the result of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for COPD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a respiratory disorder with allergic manifestations to include asthma, also known as allergic bronchitis, have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from April 1967 to October 1970. Service personnel records show that he served in the Republic of Vietnam from October 1969 to October 1970. This matter comes to the Board of Veterans Appeals (Board) from the Department of Veterans Affairs (VA) Regional Office in a January 2013 Regional Office (RO) rating decision. This claim was remanded in August 2020 and June 2021. In June 2021, remand was directed to clarify the diagnosis of the Veteran's claimed respiratory disorder. That clarification having been obtained, as discussed below, the issues have been re-phrased as reflected on the first page of this decision. Other development having been completed, these claims are now again before the Board. The claim is now again before the Board. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In addition, a disability that is the etiological result of a service-connected disability shall also be service connected. 38 C.F.R. § 3.310. In the case of secondary service connection, the second element of Shedden is the service-connected disability; and medical evidence of a nexus, or causal link, between the service-connected disability and the claimed disability is required. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Where a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected even though there is no record of such disease during service. 38 C.F.R. § 3.309(e). However, neither COPD nor asthma are not among those diseases listed in 38 C.F.R. § 3.309(e) for which a presumption is applicable. Notwithstanding, the Veteran may still prevail in his claim if the medical evidence establishes a causal link, or nexus, between his exposure to Agent Orange and his diagnosed respiratory disorders or, in the alternative, between the respiratory disorders and active service. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). At the outside, the Board must determine what respiratory diagnosis or diagnoses the Veteran has, if any. However, VA examinations in 2016 and 2020 disagreed as to whether the Veteran was properly diagnosed with COPD, with the 2020 VA examiner finding the Veteran symptomatic, but no diagnosing a respiratory disorder. The claim was remanded in 2021 for clarification. The subsequent 2021 VA examination and opinion by a pulmonary specialist determined that asthma, otherwise known as allergic bronchitis, was the more appropriate diagnosis. As rationale, the examiner explained that the finding of minimal obstruction in the 2012 pulmonary function tests (PFTs) appeared to have been based on a visual inspection of the flow-volume presentation of data. However, close review of the 2012 PFT findings in context with review of the claims file showed the Veteran maintained above average diffusing capacity (DLCO), which is not typical of COPD. In addition, numerical analysis of other findings, including forced expiratory volume in one second (FEV1) over forced vital capacity (FVC) and forced expiratory volume (FEV) at 25-75 percent of vital capacity revealed allergic airway changes. Furthermore, symptoms of wheezing which were treated with inhalers as described in a 2008 pulmonary consult had improved and continued allergy symptoms were treated with antihistamines but no inhalers. As such, the examiner found the medical evidence did not establish a diagnosis of COPD as an ongoing illness. Rather, the 2021 VA examiner concluded, the most appropriate diagnosis is asthma which is also known as allergic bronchitis. The 2021 VA examiner also considered whether the Veteran manifested asbestos, as he had been assigned to the USS ARLINGTON (AGMR-2). However, the examiner opined the Veteran manifested no asbestos disease. The examiner based this opinion on the fact that clinical test results, including imaging studies, chest x rays, and computed tomography showed no findings of pleural plaque, pleural effusion or asbestosis. In addition, the examiner explained that asbestos diseases cause restrictive lung disease, not obstructive disease, and that asbestos does not trigger allergic reactions. The Board finds the 2021 VA examination and opinion as to the Veteran's current diagnosis to be adequate and probative, as the examiner is a pulmonary specialist, and the opinions are supported by adequate rationale and with consideration of the entire claims file, to include the previous 2016 and 2020 examination reports and opinions, service treatment records, and VA and private treatment records. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). As such, the Board is satisfied with the 2021 VA examiner's conclusion that the appropriate respiratory diagnosis is of asthma, also known as allergic bronchitis. The Veteran argues he has COPD that is the result of active service. In the alternative, he argues he has a respiratory condition that is the result of active service, to include exposure to the herbicide Agent Orange. He further contends that his respiratory disorder is the result of his service-connected disabilities. Parkinson's Disease or his service-connected sinusitis. Unfortunately, the medical evidence does not support his contentions. First, as above discussed, the 2021 VA examiner and pulmonary specialist specifically found that the Veteran is not properly diagnosed with COPD. As such, the first element under Shedden is not met with regard to the Veteran's claim for COPD. Accordingly, service connection for COPD cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). However, the VA examiner did diagnose respiratory disorder with allergic manifestations to include asthma, also known as allergic bronchitis. This meets the first element of Shedden/Holton as to these claims. The Veteran's reports of medical history and examination at entrance to active service show no complaints, diagnoses, abnormalities or findings of any respiratory symptoms or disorders on entrance to active service. Service treatment record show the Veteran as treated for sinusitis during active service. His report of medical examination at discharge shows no diagnoses, abnormalities or other findings of any respiratory disorders. In addition service personnel records show the Veteran served in the Republic of Vietnam from October 1969 to October 1970. Hence, exposure to herbicides is presumed. 38 C.F.R. § 3.307(a)(6)(iii). Moreover, the Veteran is service connected for Parkinson's Disease and associated loss of autonomic facial movements, loss of smell, tremors of the lower and upper extremities, difficulty swallowing with speech changes, stooped posture and balance impairment with bradykinesia, depressive disorder and insomnia disorder, effective in February 2017; with diabetes mellitus, effective in April 2012 with associated with fatty liver disease, effective in June 2011; with chloracne, effective in December 2020 and with chronic sinusitis, effective in June 2011. This meets the second element of Shedden/Holton. As to the third element, that of Shedden/Holton, the 2021 VA examiner opined there is no causal connection between the diagnosed asthma and allergic manifestations and any incident of active service, to include the already service-connected sinusitis or exposure to herbicides. The examiner further opined there is no causal connection between the manifested asthma and allergic manifestations and any of the Veteran's service-connected disorders. As rationale, the 2021 VA examiner explained that respiratory disorders occurring as allergic reactions would not be the result of exposure to herbicides. Herbicides are not known to be allergens, the examiner stated. Moreover, the medical evidence at the time the Veteran was treated for his asthma symptoms documented common allergies as manifested by eosinophilia. Exposure to dust during the 1960s and 1970s when the Veteran was on active service the examiner further explained, would have been cleared by the body's mucus and cellular clearance mechanisms prior to the clinical development of allergic symptoms such as are noted in the records. Thus, the examiner concluded, the Veteran's respiratory disorder with allergic manifestations to include asthma, also known as allergic bronchitis, are ordinary conditions of life rather than the result of herbicide exposure during active service. As to secondary service connection, the 2021 VA examiner opined that the service-connected Parkinson's Disease and disorders attributable to it including loss of autonomic facial movements, difficulty swallowing, loss of smell, tremors of the bilateral lower and upper extremities; balance impairment with bradykinesia, depressive disorder and insomnia, and erectile dysfunction; and service connected diabetes mellitus with associated fatty liver; chronic sinusitis; and chloracne did not cause or aggravate the claimed respiratory disorders. As rationale, the examiner explained that, while Parkinson's Disease can affect the muscles by virtue of tremors, the disease process does not affect the respiratory system unless it reaches an advanced stage of general disability, which is not present in the Veteran's case. Moreover, there is no connection of the multiple muscles of the face extremities, balance impairment or bradykinesia, erectile dysfunction, depression and insomnia, or medications prescribed for Parkinson's to the airways or the substance of the lung. Such are not physiologically related to the airways or the substance of the lungs including the alveolar tissue and do not affect the anatomy or physiology of the airways or lung substance. Moreover, service-connected diabetes has no direct effect on airways or respiratory muscles, the examiner explained, and the associated fatty liver is manifested by elevated liver enzymes in the blood tests. Service-connected chloracne, is strictly a skin condition without anatomic or physiologic connection of dermal and epidermal structures to the airways or lung substance in relation to respiratory disorders. Finally, concerning the service-connected sinusitis, the examiner explained that sinusitis responds in a parallel manner with the airways, not in a causal fashion. Therefore, the examiner concluded, there was no plausible causal nexus between the claimed respiratory disorder with manifestations of allergies to include asthma, also known as allergic bronchitis, and the service-connected Parkinson's Disease and its associated service-connected disorders, or between the claimed respiratory disorder and the service-connected diabetes mellitus with associated liver disease, chloracne, or allergic sinusitis. The Board finds the 2021 VA medical opinions, taken together, are adequate and probative. The 2021 VA examiner's opinions are based on the examiner's medical expertise as a pulmonary specialist, and are supported by adequate rationale based on extensive review of the record, to include previous VA examinations, and inservice and post-service medical treatment records with consideration of the medical literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). As to the Veteran's own contentions, he is competent to observe lay symptoms but does not have the requisite medical knowledge, training, or credentials to be able to render a competent medical opinion regarding the diagnosis, extent and etiology of his respirator disorders. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, the Board gives more probative weight to the competent VA medical opinion as discussed above. There are no other opinions or findings establishing or tending to establish the Veteran is diagnosed with COPD. There are no other opinions or findings establishing or tending to establish the diagnosed respiratory disorder with allergic manifestations to include asthma, also known as allergic bronchitis, is the result of any event or incident active service, to include exposure to the herbicide Agent Orange or, in the alternative, that the diagnosed respiratory disorder with allergic manifestations to include asthma, also known as allergic bronchitis, is the result of the Veteran's service-connected disabilities to include Parkinson's Disease, those service-connected disabilities associated with Parkinson's Disease, and/or the service-connected diabetes mellitus with associated fatty liver, chloracne, and sinusitis. Based upon the foregoing, and as the preponderance of the evidence is against the claims, the benefit of the doubt rule does not apply and the claim for direct and secondary service connection must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Accordingly, service connection for COPD is not warranted, and the claim for COPD is denied. According, service-connection for a respiratory disorder with allergic manifestations to include asthma, also known as allergic bronchitis, on a direct or secondary basis is not warranted, and the claim for entitlement to service connection for a respiratory disorder with allergic manifestations to include asthma, also known as allergic bronchitis, is denied. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bakke, Lila J. 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.