Citation Nr: 21012020 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-19 635 DATE: March 3, 2021 ORDER Service connection for a respiratory disorder, to include non-specific interstitial pneumonia, is denied. FINDING OF FACT The evidence of record does not demonstrate that the Veteran’s current respiratory disorder began in or are otherwise the result of military service, to include any presumptive exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder, to include non-specific interstitial pneumonia are not met. 38 U.S.C. §§ 1103, 1110, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty from January 1968 to February 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was initially before the Board in February 2019, when it was remanded the claim for further development, to include affording the Veteran an opportunity to submit additional evidence and identify any outstanding medical treatment records potentially relevant to his claim, and further to provide a medical examination as to the nature and etiology of his claimed respiratory disability and then to readjudicate his claim. In June 2020, upon substantially complying with the Board’s remand instructions, the RO issued a supplemental statement of the case affirming its prior decision and returned the appeal to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 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(a). “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). Certain chronic diseases, including bronchiectasis, sarcoidosis and tuberculosis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. However, 38 C.F.R. § 3.303 (b) only applies to the list of chronic diseases/disabilities recognized by VA as being chronic and those chronic diseases/disabilities are listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). At the outset, the Board notes the July 2020 Veteran’s thoughtful and compelling correspondence at some length explaining the basis for his disagreement with the RO’s rating actions. The Veteran maintains that he had incurred his respiratory disability in or due to service, to include his cigarette smoking initially attributable to the barracks culture and/or due to his exposure to herbicide agents in the Republic of Vietnam. The Board acknowledges the Veteran’s military hardships and does appreciate his selfless service. Further, having been apprised of the severity levels of the Veteran’s disabilities and their profound impact on his life, the Board is indeed sympathetic to the Veteran. However, upon considering the Veteran’s contentions in context of all evidence of record viewed as a whole and in light of all pertinent laws, the Board has found that the benefits sought in this appeal must be denied. Unfortunately, for any claim received by VA after June 9, 1998, the current laws unequivocally bar an award of service connection for a disability attributable to the use of tobacco products in service, to include cigarettes, cigars, smokeless tobacco, pipe tobacco, and roll-your-own tobacco. See 38 U.S.C. § 1103; 38 C.F.R. § 3.300. These legal provisions effective foreclose any further inquiry into the theory of entitlement to service connection based on the Veteran beginning to smoke during military service—his primary asserted theory of entitlement in this case. Further, the Board reflects that based on the record, although the Veteran is shown to have 8 months of foreign service and asserts that such was in the Republic of Vietnam, the evidence does not definitively demonstrate that the Veteran has military service in the Republic of Vietnam. However, even assuming arguendo, that the Veteran had service in the Republic of Vietnam and that he is presumed to be exposed to herbicides in this case, the Board reflects that, although respiratory cancers to include cancers of the lung, bronchus, larynx, or trachea, are provided a presumption with regards to herbicide exposure, other respiratory disorders—to include the Veteran’s noted respiratory disorders in the record—are not. The Board therefore must deny service connection on a presumptive basis in this case, as the Veteran’s respiratory disorders are not a conceded presumptive disorder associated with herbicide exposure. See 38 C.F.R. § 3.309(e). Moreover, the Board acknowledges the Veteran’s lay assertions of such associations to herbicides in this case. However, in Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there were must be “medically competent” evidence of a current disability, “medically competent evidence is not required to indicate that the current disability may be associated with service.” Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 12. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being “routinely and virtually automatically” provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. In this case, aside from the Veteran’s lay statements of some association with Agent Orange, such statements are generalized lay statements merely suggesting a nexus in this case. Thus, although the Board acknowledges that the VA examiner did not discuss any association with herbicides, the Board finds that such lay association as initially argued by the Veteran in his July 2020 statement does not weigh in favor of meeting the low threshold of obtaining a medical opinion in this case, in light of the extensive research noted above. In short, the Veteran has not provided any medically competent evidence of an association with herbicides in this case other than his generalized lay statements in July 2020. As such, the Board finds that such evidence does not meet the low threshold for obtaining a medical opinion in this case. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Waters, supra; Colantonio, supra. Finally, the Board notes that there are no respiratory problems in service or at separation from service. The Veteran underwent a VA examination in 1995 in which his respiratory system was normal. Significantly, the first evidence of any respiratory symptomatology was in the early 2000s, approximately 30 years after military service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim). Although the Board acknowledges the Veteran’s statements of his belief that his respiratory disorder was related to military service, the Veteran is not competent to provide such an opinion as he lacks the required medical knowledge, expertise and experience. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). Furthermore, the evidence of record is devoid of any evidence that the Veteran’s respiratory problems began in service and have been chronic and continuous since that time. See 38 C.F.R. § 3.303(b); Walker, supra. Further, the only competent evidence with regards to nexus in this case is the VA examiner’s opinion. That opinion is based on review of the entire record and examination of the Veteran. The examiner’s opinion is that the Veteran’s smoking history rather than any in-service injury, event or disease is the cause of his respiratory disorder. The Veteran has not offered any competent and probative evidence to the contrary. Accordingly, as the July 2020 VA examiner’s opinion is the most probative evidence of record in this case, the Board must deny service connection for a respiratory disorder at this time based on the evidence of record. See 38 C.F.R. §§ 3.303, 3.307, 3.309. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alex Bardin, Associate 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.