Citation Nr: 21022290 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 15-23 549 DATE: April 15, 2021 ORDER Entitlement to service connection for a sinus condition, to include as due to herbicide exposure, is denied. REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD), claimed as asthma and breathing problems, to include as due to herbicide exposure, is remanded. FINDINGS OF FACT 1. The Veteran’s exposure to herbicides during service is conceded. 2. The Veteran does not have a currently diagnosed sinus condition. CONCLUSION OF LAW The criteria for service connection for a sinus condition have not been met. 38 U.S.C. §§ 1110, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1968 to March 1970 and from August 1975 to October 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the case in January 2019 for further development. The requested development as to the claim adjudicated below has been completed to the extent possible, and no further action is necessary to comply with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a sinus condition, to include as due to herbicide exposure, is denied. The Veteran is seeking to establish service connection for a sinus condition. The Veteran asserts he has had issues with his sinuses and breathing since his exposure to herbicides while serving along the demilitarized zone (DMZ) in South Korea. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to an herbicide agent if a listed chronic disease manifests to a degree of 10 percent disabling or more, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a). Effective February 24, 2011, VA amended its regulations to extend a presumption of herbicide exposure to certain veterans who served in Korea. 76 Fed. Reg. 4245-01 (Jan. 25, 2011). Specifically, a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv). Once exposure has been established by the evidence, the presumptions found at 38 C.F.R. § 3.309(e) are applicable. The list of diseases associated with exposure to certain herbicide agents is as follows: 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(e). As an initial matter, the Board acknowledges that exposure to herbicides has been conceded, as the Veteran has been found to have worked in or near the DMZ during service. Further, although sinus conditions are not among the list of disabilities for which presumptive service connection may be granted, this does not preclude the Veteran from establishing service connection with proof of direct causation, or on any other recognized basis. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, following a review of the evidence of record, the Board finds that the Veteran does not have a sinus disability and has not had one at any time during the pendency of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran submitted his claim of entitlement to service connection for a sinus condition in November 2011 and since this time, treatment records fail to reflect treatment for, complaints of, or a diagnosis of a sinus condition. Additionally, pursuant to the Board’s January 2019 remand, a VA medical opinion was sought in August 2020. The VA examiner indicated that the requested opinions were not applicable, as medical records were negative for “any current or chronic sinus condition or other condition related to the claimed sinus condition.” The Board acknowledges the Veteran’s statements noting that his sinus problems increased following his exposure to herbicides at the DMZ and his spouse’s statement asserting that the Veteran’s breathing had progressively gotten worse since service. While the Veteran and his wife are competent to report observable symptoms, they lack the training and expertise necessary to diagnose a sinus condition. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As such, greater weight is given to the medical evidence, to include the findings from the August 2020 VA examiner. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997). While the Board gives consideration to the Veteran’s assertions, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the claim for service connection for a sinus condition is denied. REASONS FOR REMAND Entitlement to service connection for COPD, claimed as asthma and breathing problems, to include as due to herbicide exposure, is remanded. The Veteran is seeking entitlement to service connection for COPD, claimed as asthma and breathing problems. The Veteran contends his respiratory conditions are related to his conceded exposure to herbicides while serving along the DMZ. Pursuant to the Board’s January 2019 remand, a VA medical opinion was issued in August 2020. The VA examiner determined that the Veteran’s COPD was less likely than not related to service and more so related to his long history of smoking and risk factors related to his work in a sawmill. While the examiner supported the opinion with evidence from the record, he failed to address the Veteran’s conceded exposure to herbicides in service, as was directed by the Board. See Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Further, once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For these reasons, the Board finds that remand for an addendum opinion is necessary. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from the August 2020 VA examiner or, if unavailable, another appropriate clinician, regarding the Veteran’s COPD. The claims file and a copy of this remand must be made available to the examiner. The need for an examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should respond to the following: a) Is it as least as likely as not (50 percent probability or greater) that the Veteran’s COPD had its onset in or is otherwise etiologically related to active duty service? Please explain why or why not. In rendering the requested opinion, the examiner should address the Veteran’s conceded exposure to herbicides during service. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). (Continued on the next page)   2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Silverblatt, 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.