Citation Nr: 21024418 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-51 136 DATE: April 22, 2021 ORDER Service connection for a respiratory condition (also claimed as emphysema and lung problems) is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s respiratory condition, including COPD, OSA, and OHS, began during service or is otherwise related to an in-service injury or disease, to include exposure to herbicide agents or asbestos. CONCLUSION OF LAW The criteria for service connection for a respiratory condition (also claimed as emphysema and lung problems) have not been met. 38 U.S.C. §§ 1110, 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 September 1966 to June 1970 in the Navy. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) denying the Veteran’s claims for service connection for peripheral neuropathy and diabetes mellitus type II, and denying his petition to reopen his claim of service connection for lung problems (claimed as emphysema). The Veteran testified at a February 2020 travel Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. The Board granted the petition to reopen the claim of service connection for lung problems in June 2020 and remanded the matter to obtain a medical opinion regarding the Veteran’s respiratory condition. The Board finds that an adequate medical opinion regarding the Veteran’s respiratory condition was obtained in September 2020; therefore, further remand is unnecessary. The issues of service connection for peripheral neuropathy and diabetes mellitus type II were granted by a September 2020 rating decision and are no longer before the Board. The Veteran has not disagreed with the ratings assigned for these conditions, although he is still within the time period to do so. The Veteran seeks service connection for a respiratory condition, including Chronic Obstructive Pulmonary Disease (COPD), Obstructive Sleep Apnea (OSA), and Obesity Hypoventilation Syndrome (OHS). He contends that his condition is the result of herbicide agent exposure while serving in the territorial waters of Vietnam and/or while working on the deck of the U.S.S. Richard B. Anderson. He does not contend, though, that his respiratory condition began in service. The Board finds, however, that service connection is not warranted. The Board’s June 2020 remand directives instructed the RO to develop the issue of herbicide exposure in relation to the Veteran being a Blue Water Veteran (serving within the 12 nautical mile territorial sea of Vietnam). His military personnel records indicate that he served aboard the U.S.S. Richard B. Anderson DD 786 from April 1967 to November 1967 and December 1967 to May 1970, which the RO confirmed overlapped with the ship’s position within the 12 nautical mile territorial sea of Vietnam in November 1968. As such, VA issued a July 2020 memorandum finding that the Veteran was exposed to herbicide agents based on his nautical service in the offshore eligible waters. See Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. The Veteran’s respiratory condition, including COPD, OSA, and OHS, are not presumptively connected to his in-service herbicide agent exposure. Certain enumerated diseases are presumptively connected to herbicide agent exposure, even where there is no record of such disease in service. 38 C.F.R. § 3.309(e). However, the list of disease associated with exposure to herbicide agents does not include COPD, OSA, or OHS. Therefore, presumptive service connection is not warranted. Id. Service connection may also be established on a direct basis for a disability if it is related to an in-service injury or disease, such as herbicide agent or asbestos exposure. The Board finds, however, that the evidence does not demonstrate that the Veteran’s respiratory condition is related to his in-service herbicide agent exposure or alleged asbestos exposure. In making this decision, the Board relied on the Veteran’s service treatment records, post-service records, lay statements, and the September 2020 VA medical opinion. As to alleged asbestos exposure, the Veteran had a minimal probability of asbestos exposure in service based on his military occupational specialty (MOS). Military personnel records demonstrate that the Veteran acted as a Seaman Recruit, Seaman Apprentice, Seaman, and Commissaryman with the Navy aboard the U.S.S. Richard B. Anderson. VA’s Adjudication Procedure Manual provides a table to determine the probability of asbestos exposure by military occupational specialty (MOS). See M21-1, Part IV, Subpart ii, 1.I.3.d. The Veteran’s abovementioned military occupational specialties are listed in the Manual, with each MOS having a minimal probability of exposure. See id. Accordingly, the Board finds that the Veteran had at least some probability of exposure to asbestos during service. In May 2009, following his initial claim for lung problems based on asbestos exposure, the RO solicited an asbestos exposure history from the Veteran. The Veteran failed to respond directly to this request, but later testified about his exposure history at his February 2020 hearing, stating that asbestos “was all over the ship” and that “pipes were wrapped in asbestos.” At the same hearing, the Veteran also testified that he worked with sheetrock as a drywaller post-service, and when he first started, the sheetrock had asbestos in it. Based on the Veteran’s confirmed herbicide agent exposure and solicited asbestos exposure history, the Board requested the September 2020 VA medical opinion to address whether his respiratory condition is related to his herbicide agent and asbestos exposure. The September 2020 VA examiner opined that it is less likely than not that the Veteran’s COPD, OSA, and OHS were incurred as a result of his herbicide agent and asbestos exposure. The examiner first discussed why the Veteran’s COPD, OSA, and OHS are not connected to his alleged asbestos exposure. In doing so, she explained that asbestos exposure does not cause obstructive lung disease, such as COPD, but instead causes restrictive lung disease, which the Veteran is not diagnosed with. The examiner referenced the Veteran’s April 2017 treatment records, and quoted his pulmonologist’s note indicating that his loss of lung function over time, as shown by a worsening obstructive pattern, was commensurate with smoking for part of that time and age-related decline, with no evidence of asbestos-related lung disease. Separately, the examiner referenced UpToDate, an evidence-based clinical resource, to further explain that neither OSA nor OHS are caused by asbestos exposure, and instead are associated with older age and increased body mass index (BMI). The examiner then discussed why the Veteran’s COPD, OSA, and OHS are not connected to his herbicide agent exposure. In doing so, she cited the National Academy of Science (NAS) Institute of Medicine’s Veterans and Agent Orange Update 11 (2018), stating that there is insufficient evidence of an association between herbicide agent exposure and the prevalence of respiratory disorders. Instead, she explained, cigarette smoke exposure is the major cause of many airway disorders, especially COPD. Finally, the examiner concluded that medical literature does not support that the Veteran’s respiratory condition is a result of his post-service work with dry wall, citing a National Institute for Occupational Safety and Health (NIOSH) report. While the Board finds that the Veteran had at least some probability of in-service asbestos exposure and confirmed herbicide agent exposure, competent evidence fails to establish a relationship between these exposures and his current respiratory condition. Furthermore, the Veteran’s respiratory condition did not manifest during service. His service treatment records are silent as to signs, symptoms, or diagnosis of COPD in service and he was not diagnosed with COPD until 2004, 34 years post-service. The September 2020 VA examiner noted that while the Veteran was diagnosed with acute bronchitis in July 1969, in service, it was treated with an antibiotic and resolved without residuals and was not an early manifestation of COPD. The Board finds the September 2020 VA opinion sufficient to decide the instant claim, as it is based on a full review of the Veteran’s medical records and is supported by a precise rationale that the Veteran’s respiratory condition, including COPD, OSA, and OHS, did not develop due to the in-service asbestos and herbicide agent exposure. While the Veteran attributes his respiratory condition to these exposures, he is not considered medically competent to make such an association. The issue is medically complex, as it requires knowledge of the respiratory systems and the pathology of disease thereof, as well as the ability to interpret complicated diagnostic medical testing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the record does not contain evidence that substantiates the Veteran’s claims of in-service asbestos or herbicide agent-related damage to his respiratory system, because his respiratory condition is (a) obstructive, not restrictive, and therefore not associated with asbestos exposure; (b) commensurate with his age-related decline and history of smoking; and (c) not shown by medical studies to be associated with herbicide agent exposure. The VA examiner not only provided negative opinions as to the relationship between the claimed lung conditions and service, but also provided alternative etiologies - cigarette smoking, age-related decline, and increased body mass index (BMI). The Board finds that the preponderance of the evidence shows that the Veteran’s respiratory condition, to include COPD, OSA, and OHS, was not caused by his service, to include in-service asbestos or herbicide agent exposure. Accordingly, service connection is not warranted, and the claim is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Tierno 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.