Citation Nr: 21006131 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 14-08 245 DATE: February 3, 2021 ORDER Service connection for chronic obstructive pulmonary disease (COPD), to include as due to exposure to herbicide agents and/or as secondary to service-connected disabilities, is denied. FINDING OF FACT COPD was not shown in service or for many years thereafter and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for COPD are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1969 to July 1971, with service in the Republic of Vietnam. He was awarded the Vietnam Service Medal and Vietnam Campaign Medal. The case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office. In January 2018 and September 2019, the Board remanded the claim for further evidentiary development. The Board finds that there has been substantial compliance with the prior remand instructions and that no further action is necessary. See D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Service Connection The Veteran seeks entitlement to service connection for COPD, to include as secondary to ischemic heart disease (coronary artery disease) and/or exposure to herbicide agents. See September 2012 VA Form 21-526b; see also August 2019 appellant’s brief Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110. Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service treatment records are absent treatment or complaints for a respiratory condition, aside for one June 1971 visit for a cold. Post-service treatment records document a diagnosis and treatment for COPD. This matter was previously remanded by the Board in January 2018 because the August 2015 VA medical opinion, finding that the Veteran’s COPD was not directly resultant from and/or permanently aggravated beyond natural progression by the Veteran’s service-connected coronary artery disease versus other etiological factors, was not supported by a clinical explanation or rationale. Pursuant to the January 2018 remand, another VA medical opinion was obtained in November 2018. The November 2018 VA examiner opined that the Veteran’s COPD was less likely than not proximately due to or the result of the Veteran’s service-connected coronary artery disease or peripheral arterial disease of the bilateral lower extremities. The November 2018 VA examiner explained that COPD would not be a medically expected outcome of either coronary artery disease or peripheral arterial disease of the bilateral lower extremities, and that such an association is not supported by medical literature. The examiner further explained that COPD is well established as due to significant exposure to noxious particles or gasses, and that it is more likely than not that chronic tobacco use disorder is the cause of the Veteran’s COPD. The examiner noted that as of 2006, the Veteran had reportedly smoked for 43 years. The examiner also noted that tobacco-related lung disease (COPD) was documented in the Veteran’s July 2016 VA treatment records showing radiographic findings of mild/moderate bullous emphysema within both upper lobes. The examiner stated the July 2016 radiographic findings were consistent with tobacco use disorder, and would not be secondary to either coronary artery disease or peripheral arterial disease of the bilateral lower extremities. The examiner also opined that COPD would not be medically expected to be aggravated beyond its natural course as due to coronary artery disease or peripheral arterial disease, but rather noxious inhalation. In the September 2019 remand, the Board noted that the Veteran, through his representative, contended that Agent Orange is a noxious chemical/gas, and that a medical opinion should be provided as to whether the Veteran’s COPD is related to exposure to Agent Orange. See August 2019 appellant’s brief. The Veteran is presumed to have been exposed to herbicide agents based on his service in the Republic of Vietnam from January 1971 to June 1971. 38 C.F.R. § 3.307. Under VA regulations, certain disorders associated with in-service herbicide agent exposure may be presumed service connected. 38 U.S.C. § 1116; 38C.F.R. §§3.307, 3.309. For a disease not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Therefore, the Board found that, while COPD is not among the medical conditions for which presumptive service connection is warranted under 38 C.F.R. § 3.309(e), given the Veteran’s presumed exposure to herbicide agents in Vietnam and the November 2018 VA examiner’s opinion that the Veteran’s COPD is due to noxious inhalation, a remand was necessary to address whether the Veteran’s COPD is causally linked to his presumed exposure to herbicide agents. Pursuant to the September 2019 remand, an addendum VA medical opinion was obtained in December 2019. The VA examiner did not provide a positive nexus opinion. Rather, she explained that there was no diagnosis of COPD during service, nor is there any evidence found in the service treatment records of the presence of COPD. She further opined that the statement made in the November 2018 medical opinion that “COPD is well established as due to significant exposure to noxious particles or gasses” is very broad, inaccurate at best, and not well-established. She noted that there was conflicting evidence in the medical literature and indicated that noxious gasses have not been established as a cause of COPD. The examiner referenced attached medical literature in support of her opinion and reported that the best evidence for the cause of COPD is occupational exposure to certain particulate matter, particularly silica, among gold miners and less so for coal miners, and ambient air pollution. She explained that the weight of the current medical literature and the Institute of Medicine’s latest study, Veterans and Agent Orange: Update 2014, do not find sufficient evidence of a causative association between Agent Orange exposure and COPD. The examiner concluded that the Veteran has the definite risk factor of smoking, at least a 45 plus pack per year history, which is the most likely cause of his COPD. The examiner also noted that there is no evidence identified in medical literature to support the contention that coronary artery disease is a cause of risk factor for the development of COPD. After review of the record, the Board finds that service connection for COPD is not warranted. Turning first to the statements made by the Veteran and his representative, the Board acknowledges that laypersons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, while the Veteran may be competent to report the manifestation of symptoms of his COPD, he is not competent to provide medical opinions regarding the causes or aggravating factors of that condition. As the Veteran has not been shown to have appropriate medical training and expertise, he is not competent to render probative (i.e., persuasive) opinions on medical matters. See Jandreau, 492 F.3d at 1376-77; Bostain v. West, 11 Vet. App. 124, 127 (1998); Routen v. Brown, 10 Vet. App. 183, 186 (1997) (“a layperson is generally not capable of opining on matters requiring medical knowledge”). Hence, his lay assertions in this regard have no probative value. In addressing the probative evidence of record, the Board finds that the negative opinions of the November 2018 and December 2019 VA examiners, particularly when read together, and provided after reviewing the entirety of the claims file, are highly probative as they reflect consideration of all relevant facts. The examiners provided a detailed rationale for the conclusions reached. Their conclusions are supported by the medical evidence of record, which includes service treatment records noting no objective findings of COPD, medical literature finding that COPD is a result of certain particulate matter, particularly silica, ambient air pollution, and smoking, and medical literature does not support a nexus between COPD and Agent Orange exposure or the Veteran’s service-connected coronary artery disease or service-connected peripheral arterial disease. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Significantly, there is no probative competent medical opinion of record to the contrary. Based on the evidence of record, the weight of the competent and credible evidence demonstrates no relationship between the Veteran’s current COPD and active service. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim of service connection for COPD on a direct, presumptive, or secondary basis, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Bilstein, 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.