Citation Nr: 21023263 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-24 638A DATE: April 20, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to exposure to herbicides is denied. FINDING OF FACT COPD was not manifest during service, is not attributable to service and was not proximately caused or aggravated by a service-connected disease or injury, to include ischemic heart disease (IHD). CONCLUSION OF LAW The criteria for entitlement to service connection for COPD have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1967 to August 1968, including service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in January 2018 and October 2019; it was remanded to obtain medical records; and for additional COPD examinations. The additional development has been completed including obtaining a VA examination for COPD in December 2019. For these reasons, the Board's prior remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Threshold Issue Herbicide Exposure During Vietnam Era The Veteran contends that his COPD is due to exposure to herbicides in active service, specifically Agent Orange. The Board again observes that he had active service in the Republic of Vietnam. In some circumstances, a disease associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue, unless there is affirmative evidence to establish that the disease is due to an intercurrent injury or disease. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307 (a)(6), 3.307(d)(1), 3.309(e). A Veteran who served in the Republic of Vietnam during the Vietnam era 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 U.S.C. § 1116(f). Diseases associated with such exposure include: AL amyloidosis; chloracne or other acneform diseases 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 sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) Note 1; 75 Fed. Reg. 53,202 (August 31, 2010). For purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309(e), Note 2. The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994). See also 61 Fed. Reg. 41,442, 41,449 and 57,586, 57,589 (1996). A list of specific conditions not having a positive association has been published by the Secretary. See Notice, 79 Fed. Reg. 20,308 (April 11, 2014). COPD is not included on the presumptive disease list. Also, although respiratory cancers are enumerated presumptive Agent Orange diseases, respiratory disorders such as asthma and COPD are not on the list of diseases related to herbicide agent exposure. As such presumptive service connection is not warranted. Next, the Board will address whether direct service connection is warranted. The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). Service Connection In determining whether service connection is warranted for a disability, VA must determine 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 the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service connection will be granted if it is shown that the Veteran has a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection is also warranted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). COPD The Veteran contends that his COPD is causally related to his presumptive exposure to herbicides (Agent Orange). The Veteran served in Vietnam during the presumptive period, therefore, herbicide exposure is conceded. The Veteran’s service treatment records (STRs) have been associated with the claims file. In a January 1967 medical history questionnaire, the Veteran circled that he had been treated for lung disease then marked it out and indicated that he had not been treated for lung disease. However, he did note and underline that he had, had shortness of breath. See October 2013 Military Personnel Record, p.28. In an August 1968 report of medical discharge examination, the clinical evaluation revealed all systems were normal including mouth and throat, nose and lugs and chest. The Veteran stated that he had at the time or in the past had chronic or frequent colds, sinusitis, hay fever, shortness of breath and pain or pressure in the chest. But denied ever having a chronic cough, asthma, or tuberculosis. The Veteran stated at the time that his health was good. See October 2013 Military Personnel Record, p.15,17. In a January 2002 VA treatment note, the Veteran denied shortness of breath, palpitations, and wheezing. On examination it was noted that the Veteran’s lungs were clear. See February 2018 Capri, p.47. In a June 2005 VA treatment record, a clinician indicated that the Veteran smoked one to one and a half packs a day. He also noted that the Veteran worked in construction and occasionally had heavy dust exposure when he operated heavy equipment. The clinician also indicated that the Veteran’s smoking history went back 50 years, he started smoking at 14 years old. The Veterans lungs were clear anterior and posterior. The Veteran was given several diagnoses including COPD/asthma and nicotine dependence. See February 2018 Capri, p.32. During a November 2008 primary care visit, the clinician noted that the Veteran had been smoking one pack a day for about 50 years (that would be around 1948). See February 2018 Capri, p.21. In an October 2011 VA treatment record, the Veteran denied having a cough, hemoptysis, and chest pain. Upon examination the clinician noted the Veteran’s mouth and pharynx was clear with hyperemia of the soft palate and his lungs were clear anterior and posterior. However, there were a few expiratory scattered wheezes. The Veteran was given several diagnoses including COPD and asthma. See October 2013 Capri, p.9. In a February 2013 VA treatment record, the Veteran was seen for complaints for coughing, chest congestion, shortness of breath and chest pressure, that had occurred on and off for those past two days. The pressure began the morning of the visit. The Veteran reported that he had been smoking 1 to 1 and a half packs of cigarettes per day but had recently decreased to 1 pack a day. The Veteran further complained that his cough/ shortness of breath was increasing for those last 2 weeks, the cough had lessened but his sputum had become thick and discolored. See October 2013 Capri, p.7. In March 2013, the Veteran was afforded an Agent Orange Registry health history examination. In the examination, the Veteran reported that he had, had COPD, asthma, emphysema, and pneumonia. During the examination the Veteran stated that he had smoked one pack of cigarettes per day since 1957. See Notification Letter, p.7. The Veteran indicated that in those last 6 months he experienced lots of symptoms, including uneasy breathing; a cough; nasal stuffiness and wheezing. See March 2013 Notification Letter, p.8. In October 2014, the Veteran was afforded a magnetic resonance imaging test (MRI). The radiologist found both lungs were clear without focal consolidations, overt congestion, or pleural effusion. She also indicated that there was evidence of COPD with increased interstitial markings and flattening of the diaphragms; no pneumothorax and visualized osseous structures were unremarkable. The diagnosis given was COPD. See April 2016 Capri, p.66. In a September 2015 VA treatment note, the Veteran reported that he was ok and was last seen the previous October. Upon examination, the clinician noted the Veteran’s chest had a good entry with good expansion and no crackles or wheezes. The clinician indicted that the Veteran had COPD and was a smoker. The Veteran and the clinician had discussion about smoking and use of a nicotine patch. See April 2016 Capri, p.8. In a June 2016 form 9, the Veteran stated that he was appealing his COPD claim to include as secondary to ischemic heart disease (IHD). The Veteran noted that it was his belief that he had IHD and that he would get further testing to see if he had the condition. However, the Board notes that since that time the Veteran has not been diagnosed with or service connected for that condition. In January 2017, the Veteran was admitted to the hospital for acute COPD exacerbations. See February 2018 Capri, p.104. In a March 2017 urgent care note, the Veteran reported shortness of breath for a week and a half but denied a cough or chest pain. The clinician noted bilateral clear breath sounds and the Veteran was taken off of his nebulizer. Upon examination, the Veteran was positive for wheezing but had no coughing. His lungs were diminished to auscultation throughout with tight expiratory wheezes. The clinician found that there was COPD exacerbation with mildly elevated WBC, she stated he would be given an oral antibiotic and that he was nearly 100 percent improved after nebulizer. The Veteran was told to follow up if symptoms worsened or returned. See February 2018 Capri, p.94. In a January 2018 private treatment note, the Veteran was seen for a followup. The Veteran reported that he had shortness of breath every day and chest pain that would come and go. On examination, the clinician noted that the Veteran had diminished breath sounds bilaterally with significant wheezing. The Veteran was given several diagnoses, including COPD and shortness of breath. The clinician felt that most of his shortness of breath was caused by deconditioning and COPD. See January 2018 Medical Treatment Record-Non-Government Facility, p.2. In February 2018, the Veteran was afforded a respiratory conditions VA examination. The examiner reviewed the claims file; considered the subjective accounts and conducted an evaluation. The examiner noted that the Veteran had a diagnosis of COPD, diagnosed in 2018. The examiner concluded the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale was that the primary cause of COPD is cigarette smoking and/ or exposure to tobacco smoke; other causes included air pollution; infectious diseases and genetic problems. The examiner acknowledged that the Veteran reported he could not remember the first time he had developed difficulty breathing or started to have shortness of breath. The Veteran reported that he did not seek help until about 20-25 years prior to this examination and he stated he started smoking at 14 years old and stopped at 72 years old. The examiner indicated that the Veteran smoked one to one and a half packs of cigarettes per day. The examiner concluded after reviewing the records that the Veteran smoked for most of his life and based on his observation the Veteran’s COPD was at least as likely as not due to the Veteran’s long history of cigarette smoking and was less likely due to other possible causes including exposure to herbicides. In a May 2019 private treatment record, a clinician noted that the Veteran was stable and did not need any medications refilled. The Veteran’s lungs were clear, and his COPD was controlled. See March 2021 Medical Treatment Record-Non-Government Facility, p.38. In December 2019, the Veteran was afforded another respiratory condition examination. The examiner noted that the Veteran had a diagnosis of asthma and COPD. The Veteran reported that he could not remember the onset of his COPD but remembered that it started 2-3 years after he got out of service. The Veteran indicated that he was always out of breath in-service but did not know what the condition was until he was diagnosed. He noted that the condition had plateaued since its onset and that it got hard to breath. He stated he would hyperventilate and felt out of breath when he took a shower, got out of bed, dressed, and walked a block. The examiner noted that the Veteran’s condition impacted his ability to work, because it took a lot of effort and he would start hyperventilating when he got short of breath. The Veteran was unable to do stuff around the house, he had to take breaks often. The examiner found the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Veteran reported that he served in the US Army between Jan 5, 1967 to Aug 24, 1968 and could not remember the first time he developed shortness of breath. The examiner stated that the Veteran was diagnosed with COPD, which is a pulmonary disease that slowly and progressively obstruct the airflow in and out of the lungs and which typically includes symptoms of chronic bronchitis, emphysema, sometimes asthma or a combination of all, can primarily be attributed to his long history of cigarette smoking. The examiner noted that the primary cause of COPD is cigarette smoking and/or exposure to tobacco smoke; and that overall, tobacco smoking accounted for as much as 90% of COPD risk. The Veteran reported that he started smoking at the age of 14 and quit at the age of 72; he smoked 1 - 1.5 packs per day. The examiner referenced a study by Nagelmann et. al. which concluded that lung function deviation and lung structural changes are present in people who smoke cigarettes before the clinical signs of airway obstruction reveal them. The examiner concluded that based on the records reviewed, the Veteran had smoked for most of his life, even before he started service. Based on available records reviewed and referenced studies, it was the examiner’s opinion that the current lung condition was less likely than not incurred in or caused by the in-service exposure to herbicides (Agent Orange) and most likely due to his long history of cigarette smoking. Based on a review of the evidence, the Board concludes that service connection for COPD, is not warranted. Although the evidence shows a couple episodes of shortness of breath and chest pains in service and a current diagnosis of COPD, the evidence does not support a finding of a nexus between the current diagnosis of COPD and the Veteran’s military service. The Veteran’s lay statements are credible. The Board acknowledges the Veteran’s lay statements that he was exposed to Agent Orange while in-service; and that's what caused his COPD. The Veteran is competent to discuss in-service events and his exposures. Further, as a lay person, the Veteran is competent to provide opinions on some medical issues, see Kahana at 435, however, the etiology of COPD, falls outside the realm of common knowledge of a lay person. See Jandreau, supra. As such, the Veteran’s assertions as to etiology of his COPD have no probative value. Additionally, while there are records of the Veteran stating that he had frequent colds and shortness of breath and pain or pressure in his chest, there were not any in-service records indicating this occurred while he was in service. Furthermore, there is no competent evidence that the Veteran was suffering from a chronic condition while in-service and by the time the Veteran was discharged from service any issue must have resolved because his clinical evaluation was normal and he stated he was in good health. Here the Board finds that the medical evidence is more probative than the lay opinions of record. Specifically, the VA examinations from 2017 and December 2019 are entitled to significant probative weight. The examiners found that the Veteran was diagnosed with COPD, which is a pulmonary disease that slowly and progressively obstructs the airflow in and out of the lungs and which typically includes symptoms of chronic bronchitis, emphysema, sometimes asthma or a combination of all, could have been primarily be attributed to his long history of cigarette smoking. The examiner noted that the primary cause of COPD is cigarette smoking and/or exposure to tobacco smoke; and that overall, tobacco smoking accounted for as much as 90% of COPD risk. During the exam, the Veteran reported that he started smoking at the age of 14 and quit at the age of 72; he smoked 1 - 1.5 packs per day. the Veteran had smoked for most of his life, even before he started service. Based on available records reviewed and referenced studies, it was the examiner’s opinion that the current lung condition was less likely as not incurred in or caused by the in-service exposure to herbicides (Agent Orange) and most likely due to his long history of cigarette smoking. The December 2019 VA examiner also found, the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Veteran reported that he served in the US Army between Jan 5, 1967 to Aug 24, 1968 and could not remember the first time he developed shortness of breath. The examiner stated that the Veteran was diagnosed with COPD, which is a pulmonary disease that slowly and progressively obstruct the airflow in and out of the lungs and which typically includes symptoms of chronic bronchitis, emphysema, sometimes asthma or a combination of all, can primarily be attributed to his long history of cigarette smoking. The examiner noted that the primary cause of COPD is cigarette smoking and/or exposure to tobacco smoke; and that overall, tobacco smoking accounted for as much as 90% of COPD risk. The Veteran reported that he started smoking at the age of 14 and quit at the age of 72; he smoked 1 - 1.5 packs per day. The examiner referenced a study by Nagelmann et. al. which concluded that lung function deviation and lung structural changes are present in people who smoke cigarettes before the clinical signs of airway obstruction reveal them. The examiner concluded that based on the records reviewed, the Veteran had smoked for most of his life, even before he started service. Based on available records reviewed and referenced studies, it was the examiner’s opinion that the current lung condition was less likely than not incurred in or caused by the in-service exposure to herbicides (Agent Orange) and most likely due to his long history of cigarette smoking. In addition, the Board acknowledges that the Veteran’s exposure to Agent Orange, has already been conceded; yet there are no records in or after service of evidence of lung damage due to Agent Orange or herbicide exposure. The Veteran does not argue that his COPD was caused by smoking prior to service and in-service but it was the VA examiners opinion that the COPD was related to his long history of smoking; for claims received by VA after June 9, 1998, a disability will not be considered service-connected on the basis that it resulted from injury or disease attributable to the Veteran’s use of tobacco products during service. 38 C.F.R. § 3.300. The Veteran's claim was filed after June 9, 1998. Therefore, even though the Veteran indicates that his COPD was caused by his time in-service or herbicide exposure, the evidence suggests that his COPD is due to smoking, and service connection for COPD, on this basis is precluded by law. In addition, the Veteran has not been service-connected for IHD and has not been diagnosed with the condition, therefore the claim cannot be granted on a secondary basis. As the Veteran is not currently service connected for IHD, there is no basis for the Board to consider service connection on a secondary basis. As the preponderance of the evidence is against the claim for service connection, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra. Service connection for COPD, including as due to herbicide exposure is denied. K.R. Kardian Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.Long-Ellis, 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.