Citation Nr: 21012415 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 16-46 788 DATE: March 4, 2021 ORDER Service connection for a respiratory disorder is denied. FINDING OF FACT A respiratory disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, to include exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder have not been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1960 to June 1963. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in June 2016 by a Department of Veterans Affairs (VA) Regional Office. In March 2018, the Board remanded the case for additional development and, in December 2018, denied the claim. Thereafter, the Veteran appealed such decision to the United States Court of Appeals for Veterans Claims (Court). In October 2019, the Court granted the Veteran’s and the Secretary of VA’s (the parties’) Joint Motion for Partial Remand (JMPR), which vacated and remanded the Board’s December 2018 decision. In April 2020, August 2020, and November 2020, the claim was remanded for additional development and it now returns for further appellate review. In the JMPR, the parties found that the Board did not provide an adequate statement of reasons and bases for its implicit determination that the duty to assist in obtaining private treatment records from the University of Michigan Hospital System had been satisfied. Nonetheless, pursuant to the April 2020 remand, all such outstanding treatment records have been obtained. Furthermore, pursuant to the remaining remand directives, an adequate opinion addressing the etiology of the Veteran’s respiratory disorder has been obtained. Thus, there has been substantial compliance with the prior remand orders. Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008). Entitlement to service connection for a respiratory disorder, to include as due to exposure to herbicide agents. The Veteran contends that he has a current respiratory disorder related to in-service exposure to herbicide agents. Therefore, he claims that service connection for such disorder is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, the law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents, and that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service. 38 C.F.R. § 3.307(a)(6)(i). As relevant, veterans who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, are presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). As the record reflects that the Veteran served in Vietnam from January 1962 to November 1962, he is presumed to have been exposed to herbicide agents. For those veterans who have been exposed to herbicide agents, certain diseases are acknowledged to be presumptively related to such exposure, provided that they manifest to a degree of 10 percent or more within a specified time period. 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). However, the Veteran’s respiratory disorder has not been acknowledged to be presumptively related to exposure to herbicide agents. Nonetheless, notwithstanding the foregoing presumption, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). As an initial matter, the Board observes that, while an April 2018 VA examination revealed no evidence of a current respiratory disorder, private treatment records reflect a diagnosis of chronic obstructive pulmonary disease (COPD), characterized as centrilobular emphysema, during the pendency of the claim. Further, while private treatment records reflect that the Veteran was treated for acute bronchitis almost three years prior to the filing of his claim in March 2013, the April 2018 VA found that such disorder is an acute illness like an upper respiratory infection, and was not chronic. Furthermore, while his service treatment records are negative for any complaints, treatment, or diagnosis referable to a respiratory disorder, he is presumed to have been exposed to herbicide agents coincident with his service in Vietnam. Thus, the remaining inquiry is whether the Veteran’s current respiratory disorder of COPD, characterized as centrilobular emphysema, is related to such in-service exposure. In this regard, in February 2017, the Veteran’s private physician noted his COPD and his history of exposure to Agent Orange while serving in the military in Vietnam, but he did not offer an opinion as to whether the Veteran’s COPD was related to such in-service exposure. In September 2020, a VA examiner opined that the Veteran’s COPD (emphysema) was less likely as not due to exposure to Agent Orange. In offering such opinion, he indicated that COPD was not a disease recognized to be presumptively related to exposure to herbicide agents, a fact which he had been directed not rely upon in offering his opinion, and cited to a study that indicated that veterans who sprayed Agent Orange did not experience significant changes on spirometry compared to those who were non-sprayers, but did not explain the relevance of such study in regard to the Veteran’s specific case. He also noted that no other articles showed objective evidence of Agent Orange causing COPD and the medical literature did not support Agent Orange causing COPD, but without an analysis specific to the Veteran’s case. Thus, in November 2020, the Board remanded the case in order to obtain an addendum opinion addressing the etiology of the Veteran’s respiratory disorder that was based on an adequate rationale. Later in November 2020, the September 2020 VA examiner again reviewed the record and offered an addendum opinion. In this regard, he noted that the Board’s remanded directed that, in offering a medical opinion, “the examiner is advised that his/her rationale cannot be based solely on the fact that VA has not included centrilobular emphysema on the list of diseases acknowledged to be presumptively related to herbicide agents” and explained that his September opinion “did not rely SOLELY upon this fact.” The examiner explained that the fact that centrilobular emphysema, or indeed any form of COPD, is not included as an Agent Orange presumptive disease is both probative and relevant, and believed that the inclusion of this fact is appropriate so long as it is not the sole fact considered. He further indicated that the primary study relevant to Veteran’s case was published by Cypel et.al. Int J Environ Res Public Health 2019 Aug 28 16:3131 “Spirometric Pulmonary Restriction in Herbicide-Exposed U.S. Vietnam War Veterans.” As pertinent to the Veteran’s specific case, the examiner explained that the study shows that individuals who sprayed herbicides had significant exposure, and the fact that these individuals had no significant decrease in pulmonary function compared to those who did not have such exposure is strong evidence against herbicides being a cause of COPD or other respiratory disorders in the Veteran. He further stated that, despite his attempts, a review of the scientific literature, to include the articles submitted by the Veteran, does not reveal studies or other evidence supporting Veteran’s claim of developing COPD due to herbicide exposure. Thus, he found that the only clearly relevant scientific evidence is strongly against the Veteran’s claim, and there is no contradictory evidence. Consequently, the examiner concluded that the Veteran’s claim for service connection falls well below the required level of ‘at least as likely as not.’ The Board affords great probative weight to the November 2020 VA examiner’s opinion as such considered all of the pertinent evidence of record, to include the Veteran’s medical history and relevant medical literature, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Notably, there is no medical opinion to the contrary. Moreover, the Board notes that the general medical literature cited by the Veteran’s representative addressing the health impacts of exposure to herbicide agents, to include respiratory problems/diseases such as COPD, is not accompanied by any corresponding clinical evidence specific to the Veteran. Further, such does not suggest a generic relationship between the Veteran’s current respiratory disorder and his exposure to herbicide agents with a degree of certainty such that, under the facts of this specific case, reflects plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Consequently, such literature is insufficient to establish service connection for a respiratory disorder. Wallin v. West, 11 Vet. App. 509 (1998); Sacks v. West, 11 Vet. App. 314 (1998); Libertine v. Brown, 9 Vet. App. 521 (1996). The Board also considered the Veteran’s assertion that his respiratory disorder is related to his in-service exposure to herbicide agents; however, as a lay person, he does not have the requisite training and experience necessary to address such a complex medical matter. 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). In this regard, the etiology of such disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship, i.e., the effect of exposure to toxins on the lungs. Thus, may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran’s opinion as to the etiology of his respiratory disorder is not competent evidence and, consequently, is afforded no probative weight. Based on the foregoing, the Board finds that a respiratory disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, to include exposure to herbicide agents. Therefore, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a respiratory disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dawn A. Leung, 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.