Citation Nr: 21006580 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-62 371 DATE: February 4, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disorder (COPD), to include as due to herbicide agent exposure, for purposes of accrued benefits is denied. FINDING OF FACT 1. The Veteran’s COPD was not shown in service or for many years thereafter and is not otherwise etiologically related to service. CONCLUSION OF LAW 1. The criteria for entitlement to service connection for COPD, to include as due to herbicide agent exposure, for purposes of accrued benefits have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1968 to October 1971. The Veteran died in August 2018. The appellant is the Veteran’s surviving spouse who has successfully substituted as appellant in his service connection claim pending at the time of his death. This matter was previously denied by the Board of Veterans’ Appeals (Board) in April 2018 and the Veteran timely appealed to the Court of Appeals for Veterans Claims (the Court). In a January 2019 Joint Motion for Partial Remand, the Court remanded the matter for further adjudication so that the Board could determine whether the Veteran’s statements and his confirmed duties while serving in Thailand constitute sufficient “other credible evidence” to concede herbicide agent exposure. The Board subsequently remanded the matter in September 2019 to obtain a VA examination and opinion. The requested development has been completed, and the appeal has returned to the Board for further appellate consideration. The Board is now satisfied there was substantial compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection is warranted for a veteran who has been exposed to a toxic herbicide agent during active military service (subject to the requirements of 38 C.F.R. § 3.307(a)) for diseases such as chloracne or other acneform diseases consistent with ischemic heart disease, Type 2 diabetes, Hodgkin’s disease, non-Hodgkin’s lymphoma, porphyria cutanea tarda, multiple myeloma, prostate cancer, soft-tissue sarcomas, early-onset peripheral neuropathy, Parkinson’s disease, chloracne and respiratory cancers, and B-cell leukemias. 38 C.F.R. § 3.309(e). To determine whether a Veteran was exposed to herbicide agents, VA regulations state that a veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975 shall be presumed to have been exposed during such service to certain toxic herbicide agents, with the most common being “Agent Orange,” unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Entitlement to service connection for COPD, to include as due to herbicide agent exposure, for purposes of accrued benefits The appellant contends that the Veteran’s COPD was related to his active duty service. Specifically, she contends that the Veteran’s COPD was caused by exposure to herbicide agents during service, and specifically Agent Orange. After reviewing all the evidence currently of record, the Board determines that service connection for COPD, to include as due to herbicide agent exposure, for the purposes of accrued benefits is not warranted. As an initial matter, the Board finds that the appellant is not entitled to accrued benefits for service connection for COPD on a presumptive basis due to herbicide agent exposure per 38 C.F.R. §§ 3.307 and 3.309(e). While the Board has previously conceded that the Veteran was exposed to herbicide agents during service, COPD is not a disorder that may be presumed related to toxic herbicide agent exposure under 38 C.F.R. § 3.309(e). Accordingly, COPD cannot be attributed to his acknowledged herbicide agent exposure on a presumptive basis. Next, although the appellant is not entitled to accrued benefits based on presumptive service connection for COPD due to toxic herbicide exposure per 38 C.F.R. § 3.307, she is not precluded from demonstrated that the Veteran’s COPD was proximately due to, the result of, or aggravated by his Agent Orange exposure or other in-service illness, event, or injury. See Combee v. Brown, 43 F.3d 1039, 1041-42 (Fed. Cir. 1994). However, the competent evidence fails to establish a relationship between active duty and the Veteran’s COPD. First, the Veteran’s service treatment records do not contain evidence of any complaints of, treatment for, or clinical observations of COPD or other pulmonary disorders. Of particular note, COPD was not noted on the Veteran’s August 1971 separation examination, and it was noted that he had normal lungs and chest. Indeed, the records do not indicate diagnoses or treatment for COPD until approximately July 2006. While a letter from the Veteran’s physician dated January 2011 stated that the Veteran had COPD prior to 2006, there is no evidence in the record confirming the precise date he was first diagnosed, and the earliest record is from July 2006. Therefore, continuity of symptoms since service is not shown. The Board has considered the statements of both the appellant and the Veteran that the Veteran’s COPD began during service and was caused by his exposure to herbicide agents. However, the Board is unable to grant service connection purely on their statements alone. Specifically, the record indicates that the Veteran was not diagnosed with COPD until 2006, which is approximately 35 years after the Veteran separated from service. As a result, continuity of symptoms is not shown based on either the contentions of the Veteran or appellant or the evidence of record. Next, service connection may be granted if the evidence otherwise reflects that the Veteran’s COPD was related to service. However, after a review of all available evidence, service connection is also not warranted on this basis. Specifically, a VA examiner in February 2020 opined that it was less likely than not that the Veteran’s COPD was incurred in or was caused by the claimed in-service injury, event, or illness. The examiner reviewed the record and the contentions of the Veteran and appellant that the Veteran’s COPD was caused by exposure to Agent Orange. The examiner explained that the medical literature does not support the contention that COPD is caused by Agent Orange exposure. “The published literature documents that [A]gent [O]range exposure is not associated with spirometry diagnosed COPD.” The examiner further noted that it is at least as likely as not that the Veteran’s COPD was instead caused by his chronic cigarette smoking. Because the examiner reviewed the evidence of record, considered the contentions of the appellant, and supported their opinion with well-supported reasons and bases, their opinion is highly probative. The Board also acknowledges that a January 2011 letter from the Veteran’s physician was submitted opining that the Veteran’s diseases “are related to his Agent Orange exposure.” The physician noted that the Veteran stopped smoking in 2000, but they did not provide any further explanation to support their opinion. Furthermore, there is no evidence that the physician reviewed the Veteran’s service treatment records or other evidence of record in forming their opinion. As such, this opinion is of no probative value. In arriving at these conclusions, the Board has considered, in addition to the entire evidence of record, the statements made by the Veteran and the appellant relating the disorder on appeal to the Veteran’s active service. While they were competent to report COPD symptoms as it came to them though their senses, they were not competent to provide testimony regarding the etiology of COPD because this disorder is not diagnosed by unique and readily identifiable features. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). They were lay persons without medical training and expertise, and thus, were not able to make an etiological conclusion regarding the cause of the Veteran’s COPD, especially given that the evidence fails to demonstrate the onset of COPD in service, or any other in-service incident, illness, or injury to which such a condition may be presently linked. The Board concludes that the weight of the evidence is against the claim for service connection for the purposes of accrued benefits, and there is no other doubt to be otherwise resolved. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The appeal is denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Veltri, Associate Counsel