Citation Nr: 21022567 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 16-53 741A DATE: April 16, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to herbicide exposure, is denied. FINDING OF FACT The preponderance of the evidence is against finding that COPD began during active service, or is otherwise related to an in-service injury or disease, to include exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for COPD are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307. 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 11, 1956 to September 29, 1968, to include service in Thailand. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. In December 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The Veteran’s claims were previously remanded by the Board in a January 2021 decision. The Board finds that the RO has substantially complied with the January 2021 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to herbicide exposure Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, including arthritis and malignant tumors, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has asserted that his COPD is due to exposure to herbicide agents. The Board has conceded that the Veteran was exposed to herbicides during his service in Thailand. However, COPD is not one of the enumerated disorders presumed due to exposure to herbicide agents under 38 C.F.R. § 3.309(e). Nevertheless, the Veteran may still establish service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board concludes that, while the Veteran has a current diagnosis of COPD, and the Veteran is presumed to have been exposed to herbicides in service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of COPD began during service or is otherwise related to an in-service injury, event, or disease, to include exposure to herbicide agents. At the December 2020 VA hearing, the Veteran testified that he did not seek any treatment for any breathing issues while in service. A review of the Veteran’s service treatment records indicate that the Veteran reported experiencing shortness of breath during hay fever episodes only. The Veteran’s hay fever was noted to be mild, seasonal, and able to be treated with antihistamines. A 1958 treatment note indicated possible mild asthma, but no sequalae was recorded. The Veteran was afforded a VA examination regarding his COPD in October 2014. The Veteran reported he has had a hard time breathing for about 20 years but did not recall any chronic recurrent problems with breathing while in service. The Veteran reported he did not start coming to the VA for treatment until 2001 but did not see a doctor before that time. The examiner noted the Veteran began complaining of shortness of breath around December 2009/January 2010. The examiner also noted a July 2010 indication of moderate obstructive lung defect. The examiner reviewed the Veteran’s service treatment records for mild asthma and shortness of breath with hay fever. The examiner opined that the Veteran’s current lung condition (COPD) is less likely incurred in or caused by the tabbed complaints and treatment during service. As rationale, the examiner noted there was no evidence of a chronic/recurrent condition. The examiner indicated that the Veteran had smoked 2 packs of cigarettes a day for 45 years until quitting in 1990, which is equivalent to a 90 pack-year history. In February 2021, a VA examiner provided an addendum opinion regarding the etiology of the Veteran’s COPD. The examiner opined that the Veteran’s condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner noted there was no diagnosis or suspicion of COPD while the Veteran was in service. The examiner further noted no evidence of worsening pulmonary conditions after the Veteran’s deployment and exposure to herbicide agents. The examiner indicated the Veteran’s COPD was not diagnosed until “many decades” after the Veteran’s service, and, accordingly, the Veteran’s deployment with exposure to AO was less likely the cause of his COPD. The examiner noted there were no asthma or pulmonary exacerbations nor chronic COPD immediately after the Veteran’s service or within the first years following his service. The VA examiner also noted that there was no literature supporting that herbicide agents were a cause of COPD, and that it is more likely that the Veteran’s significant cigarette smoking is the cause of his COPD. The examiner cited a study showing no statistically significant relationship between herbicide exposure and restrictive pulmonary disease in Vietnam War veterans. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran contends that his COPD is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires specialized medical knowledge. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA medical opinion, which indicates that the Veteran’s COPD is due to his long history of tobacco use. In conclusion, the preponderance of the evidence is against service connection for COPD. As the preponderance of the evidence is against the claim, the benefit of   the doubt doctrine is not applicable in the instant appeal and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. Taylor, 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.