Citation Nr: 21021556 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 14-16 957 DATE: April 13, 2021 ORDER Service connection for respiratory disorders of interstitial lung disease and chronic bronchitis is granted. FINDINGS OF FACT 1. Prior to death, the Veteran was diagnosed with the respiratory disabilities of interstitial lung disease and chronic bronchitis. 2. During service the Veteran served in the Republic of Vietnam and is presumed to have been exposed to the herbicide Agent Orange. 3. The Veteran’s diagnosed respiratory disabilities were due to the presumed Agent Orange exposure. CONCLUSIONS OF LAW Resolving all reasonable doubt in the appellant’s favor, the criteria for service connection for respiratory disabilities of interstitial lung disease and chronic bronchitis, for accrued benefits purposes, are met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 1133, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.313, 3.326. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from November 1961 to November 1964. The Veteran died in June 2016. The appellant is the surviving spouse of the Veteran, who is substituted as the appellant for purposes of adjudicating the issue on appeal to completion. See 38 U.S.C. § 5121A (allowing for substitution in case of death of a claimant who dies on or after October 10, 2008). This matter came before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The instant matter was first before the Board in October 2015, where the issue on appeal was remanded to obtain a VA examination and opinion concerning whether presumed herbicide exposure caused a currently diagnosed respiratory disability. Upon the instant matter being returned to the Board, and after substitution of the appellant, in July 2020 the Board again remanded the issue on appeal for a new medical opinion, as the Board found a March 2016 VA medical opinion to be inadequate. As the instant decision grants service connection for the respiratory disabilities of interstitial lung disease and chronic bronchitis, for accrued benefits purposes, which is a complete grant as to the issue on appeal, no further discussion of VA remand compliance is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran and appellant testified from Boston, Massachusetts, at an August 2014 Board videoconference hearing before the undersigned Veterans Law Judge, who was seated in Washington, D.C. The hearing transcript has been associated with the record. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision grants service connection for the respiratory disabilities of interstitial lung disease and chronic bronchitis, for accrued benefits purposes, which is a complete grant as to the issue on appeal, no further discussion of the duties ot notify and assist is necessary. Service Connection for a Respiratory Disability Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(c), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. The following diseases are deemed associated with herbicide exposure under VA law: AL amyloidosis, Chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Multiple myeloma, Non-Hodgkin’s lymphoma, Parkinson’s disease, early onset peripheral neuropathy, Porphyria cutanea tarda, Prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and Soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(c). Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff’g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Prior to death, the Veteran argued that one or more currently diagnosed respiratory disabilities were caused by exposure to the herbicide Agent Orange during service. Initially, the Board finds that, prior to death, the Veteran was diagnosed with the respiratory disabilities of interstitial lung disease and chronic bronchitis. Such diagnoses can be found in an August 2014 private Disability Benefits Questionnaire (DBQ) and a March 2016 VA examination report. The Board notes that, while there was some question as to whether the Veteran had a disability of lung subsegmental basilar atelectasis, a February 2021 addendum medical opinion explained that subsegmental basilar atelectasis is an incidental insignificant finding that simply means that the Veteran did not take a deep breath for the examination. It is not a disability for VA rating purposes. Next, the Board finds that during service the Veteran served in the Republic of Vietnam, and so is presumed to have been exposed to the herbicide Agent Orange. Service personnel records reflect that the Veteran served in the Republic of Vietnam from September 1963 to March 1964. Further, prior to death, the Veteran was granted service connection for coronary artery disease and diabetes mellitus, type II, based upon presumed in-service herbicide exposure. Finally, after a review of all the evidence of record, both lay and medical, the Board finds that the evidence is at least in equipoise as to whether the currently diagnosed respiratory disabilities are due to the presumed herbicide/Agent Orange exposure. As discussed above, in its July 2020 Remand, the Board remanded the issue on appeal to obtain a medical opinion from a pulmonologist or other appropriate specialist on the question of whether one or more diagnosed respiratory disabilities were due to presumed in-service herbicide/Agent Orange exposure. At that time, the Board found a previous March 2016 VA medical opinion to be inadequate. VA obtained the requested medical opinion in January 2021. Per the opinion, the examiner found it at least as likely as not that the Veteran’s diagnosed respiratory disabilities, diagnosed as interstitial lung disease and chronic bronchitis, were due to presumed in-service herbicide exposure. The examiner explained that, per the current medical literature, herbicides are a known allergenic/irritant trigger. Significant and persistent exposure to herbicides would be expected to lead to respiratory problems and/or inflammation, which, in turn, would eventually progress into chronic bronchitis and/or interstitial lung disease. Review of the medical records support the Veteran’s continuous, significant, and persistent exposure to herbicides during service is what initially caused the lung damage to develop, and any post-service hazardous environmental exposures were merely additive. Prior to death, the Veteran was diagnosed with the respiratory disabilities of interstitial lung disease and chronic bronchitis, and during service the Veteran was exposed to the herbicide Agent Orange. In January 2021, an examiner opined that it was at least as likely as not that herbicide exposure during service caused scarring to the lungs, which eventually developed into interstitial lung disease and chronic bronchitis. Absent any adequate medical evidence to the contrary, and resolving reasonable doubt in the appellant’s favor, the Board finds that respiratory disabilities of interstitial lung disease and chronic bronchitis were incurred in active service as due to exposure to the herbicide Agent Orange, and service connection, for accrued benefits purposes, is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. E. Choi Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Blowers, 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.