Citation Nr: 21024493 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 18-15 415 DATE: April 22, 2021 ISSUES 1. Entitlement to service connection for Chronic Obstructive Pulmonary Disease (COPD), to include exposure to herbicide agents. 2. Entitlement to total rating due to individual unemployability (TDIU). ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. REMANDED Entitlement to total rating due to individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's COPD did not manifest during service and is not otherwise related to service, to include due to presumed herbicide exposure. CONCLUSION OF LAW The Veteran's COPD was not incurred in or aggravated by active military service and is not presumptively related to service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from February 1969 to December 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In April 2020, the Veteran was afforded a Video Conference Hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. At the hearing, the record was held open for 60 days for the submission of additional evidence. This matter was previously before the Board in June 2020. In that June 2020 decision, the Board, in pertinent part, remanded the Veteran’s claims for entitlement to service connection for (1) COPD, to include exposure to herbicide agents, (2) entitlement to an increased disability rating, in excess of 30 percent for PTSD and (3) entitlement to a TDIU, for the purpose of obtaining VA examinations and medical opinions. In a subsequent rating decision, the Veteran’s disability rating for PTSD, then evaluated as 30 percent disabling, was increased to 50 percent effective October 28, 2020. This was considered a partial grant of his appeal for a higher disability evaluation for PTSD. See November 12, 2020 rating decision. The Veteran’s timely appealed this November 2020 rating decision under the Appeals Improvement and Modernization Act. See December 17, 2020 Notice of Disagreement (NOD), VA Form 10182. As this appeal was processed under the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA), this issue cannot be merged with the instant legacy appeal stream and will not be assessed herein. It is important to noted that the Veteran, through counsel, submitted correspondence in November 2020 (in response to a November 12, 2020 Statement of the Case) in which he requested another Board hearing, in pertinent part, regarding the denial of service connection for COPD and entitlement to a total ratine due to individual unemployability (TDIU). Under 38 C.F.R. § 20.700(a), however, an appellant is "limited to one Board hearing following the filing of a Notice of Disagreement with a decision of the agency of original jurisdiction." Although the regulation further states that "[r]equests for additional Board hearings may be granted for good cause shown," neither the Veteran nor his attorney have provided good cause as to why a second hearing should be provided. As such, providing the Veteran with a second Board hearing is not required at this juncture. See 38 C.F.R. § 20.700(a) (2019). This appeal has been advanced on the Board's docket pursuant to 38U.S.C. §7017 (a)(2)(C) and 38C.F.R. §20.900 (c). After the completion of the VA examinations and medical opinions noted above, this matter has been properly returned to the Board for appellate consideration. With respect to the Veteran’s claim for entitlement to service connection for COPD, the Board is satisfied that there has been substantial compliance with the Board's remand directives. Thus, no further action is required. See Stegall v. West, 11 Vet. App. 268 (1998). With respect to the Veteran’s claim for entitlement to a TDIU, for reasons discussed below, the Board finds that further development is required. Entitlement to service connection for chronic obstructive pulmonary disease, to include exposure to herbicide agent. The Veteran asserts that his COPD is due to his in-service exposure to Agent Orange. At his April 2020 Board Hearing, the Veteran further testified that he was exposed to napalm and other contaminants during his service in Vietnam. The Veteran testified that he would be on patrol, and they would bring napalm in, and he would go in right immediately afterwards. The Veteran testified that napalm would be “dripping off the trees.” See April 3, 2020 Board Hearing transcript, pg. 5. The Veteran’s Military Occupational Specialty was Combat Infantryman. See DD-214 (Military Occupational Specialty: Combat infantryman). In order to obtain service connection under 38 U.S.C. §§ 1110, 1131 and 38 C.F.R. § 3.303 (a) a Veteran must satisfy a three element test: (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 - the so- called 'nexus' requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Presumptive service connection is available for chronic diseases which manifest to a degree of 10 percent or more within 1 year of the date of separation. 38 U.S.C. § 1112 (a) (1). The law provides that diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307 (a)(6). A Veteran is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, 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); 38 C.F.R. § 3.307(a)(6)(iii). The presumption of service connection requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307 (a)(6)(ii). Discussion The record reflects a current diagnosis for COPD. See August 13, 2020 Respiratory Conditions examination, pg. 1 (date of diagnosis: 2014). Therefore, the first element of service connection is met in this case. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). With regards to the second element of service connection, the Veteran's in-service exposure to Agent Orange has been established by the Agency of Original Jurisdiction. Although there is evidence that the Veteran had service in Vietnam and the Veteran has a diagnosis of COPD, the Board notes that COPD is not a condition listed as presumptively associated with herbicide exposure. 38 C.F.R. § 3.309(e). Accordingly, entitlement to service connection on a presumptive basis is not warranted. Notwithstanding the foregoing, the Veteran may still establish service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board notes that the Veteran’s service treatment records are silent with regards to any complaints, treatment or diagnosis related to a respiratory condition or disorder. See December 8, 1970 Report of Medical Examination (Separation physical); See also, December 8, 1979 Report of Medical History (The Veteran reports that his health is excellent, and he checks no for asthma, shortness of breath, chronic cough.). Post service: The Veteran’s August 2014 treatment records show that he had a mild obstruction (COPD) based on pulmonary function tests. The Veteran was started on Spiriva. See August 25, 2014 treatment records (Primary Care Attending Note). June 2015 and July treatment records show a diagnosis for COPD. See June 23, 2015 treatment records and July 17, 2015 treatment records. Pursuant to the Board’s June 2020 remand, the Veteran was afforded an August 2020 Respiratory Conditions Examination and Medical Opinion to determine the etiology of his COPD. The August 2020 examiner noted review of the Veteran’s claims file, including the Veteran’s in-service and post service treatment records. The examiner recorded that this was an in-person examination. The examiner noted review of the Veteran’s medical history and current treatment regime for his COPD, which included the daily use of inhalers. See August 13, 2020 Respiratory Conditions examination, pgs. 1-3. After review of the Veteran’s claims file, the examiner rendered a negative nexus opinion to service. The examiner opined that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner provided the following rationale to support this nexus opinion: It is less likely than not that the veteran's COPD is due to or related to service or exposures during service. The Veteran's STRs are silent for any in-service respiratory condition or complaint. There are no medical records within 1 year of service to support any respiratory condition. Also as noted, currently COPD is NOT a presumptive condition for Agent Orange (or other herbicide) exposures. It is noted that the Veteran was likely exposed to other fumes and chemicals (such as Napalm) as well. Currently there is no adequate scientific evidence that those other exposures are significant contributors to COPD many years later. It seems much more medically likely that if those potential exposures were responsible, then symptoms would have appeared much sooner than the 2010's. He probably would have had asthma-like symptoms way back in the 1970's. There is no record of that. Unfortunately, what the Veteran does have, is a significant smoking history and exposure to years of methotrexate for the treatment of his psoriatic arthritis. As far as COPD, smoking is far and away the number one etiology of COPD in the US. It is very typical that smoking will gradually over years cause COPD and even him stopping smoking in the 1980's still has caused (initially subclinical, now symptomatic) damage that is now showing itself decades later. Also, exposure to methotrexate is likely a contributing factor. In 2017 the Veteran had a pleural effusion evaluated and treated. It was suspected in those medical records, that the effusion could be related to his long-term use of methotrexate and the effects on the lungs from this medication. The Veteran does not seem to have a history of other significant occupational exposures to dust, smoke, fumes or vapors that would contribute to his COPD. Therefore, the most likely medical reason for his COPD is the past smoking and the current methotrexate use. See August 13, 2020 Respiratory Condition’s Medical Opinion, pg. 5. Analysis In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Board finds this August 2020 Respiratory Examination and Medical Opinion probative because the examiner noted review of the Veteran’s entire claims file, including in-service and post service treatment records. The examiner conducted an in-person examination of the Veteran and specifically addressed the Veteran’s contentions. The Board finds that this VA examination also contained sound medical reasoning for the conclusions reached, with reference to specific data points and evidence to support the nexus opinion. The examiner also explained the multiple risk factors for COPD, acknowledging at the same time, that the Veteran stopped smoking in the 1980’s. For the reasons stated above, the opinion is entitled to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). It follows that the Board finds this August 2020 Respiratory Examination and Medical Opinion adequate for adjudication purposes. Lay statements The Board has considered the Veteran’s statements, that his COPD is related to his exposure to fumes and chemicals such as napalm during service. See April 3, 2020 Board Hearing transcript, pg. 5. The Board observes that the examiner specifically addressed the Veteran’s contention stating that currently there is no adequate scientific evidence that those other exposures (i.e., fumes and chemicals such as napalm) are significant contributors to COPD many years later. See August 13, 2020 Respiratory Condition’s Medical Opinion, pg. 5. The examiner further explained that if those potential exposures were responsible, then symptoms would have appeared much sooner than the 2010's. The Veteran probably would have had asthma-like symptoms way back in the 1970's. There is no record of that. Id. Addressing the key risk factor for COPD, while acknowledging the Veteran’s cessation of smoking in the 1980’s, the examiner stated it is “very typical that smoking will gradually over years cause COPD and even him stopping smoking in the 1980's still has caused (initially subclinical, now symptomatic) damage that is now showing itself decades later.” Id. Addressing additional risk factors for the development of COPD, the examiner provided a reasoned explanation for methotrexate as a likely contributing factor to the Veteran’s COPD. The examiner explained that “in 2017 the Veteran had a pleural effusion evaluated and treated. It was suspected in those medical records, that the effusion could be related to his long-term use of methotrexate and the effects on the lungs from this medication.” Id. Ruling out other occupational exposures, from dust, smoke, fumes or vapors that would contribute to his COPD, the examiner concluded that “the most likely medical reason for his COPD is the past smoking and the current methotrexate use.” Id. Addressing the Veteran’s presumed exposure to herbicides, and its nexus to the Veteran’s COPD disability, the examiner noted that (a) the Veteran's service treatment records are silent for any in-service respiratory condition or complaint, (b) there are no medical records within 1 year of service to support any respiratory condition and (c) currently COPD is not a presumptive condition for Agent Orange (or other herbicide) exposures. Id. Returning to the Veteran’s lay statements: While the Board notes the Veteran sincerely believes that his COPD is related to service, he is not shown to possess the medical expertise such that he is competent to opine on medical matters. In this regard, the diagnosis and etiology of COPD (and/or its relationship to environmental exposures, e.g., fumes and chemicals, such as napalm) requires medical testing and expertise to determine. Thus, his opinion as to the etiology of his COPD is not competent medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). For the reasons stated above, the Board finds the Veteran’s statements regarding the etiology of his COPD have no probative weight. In this case, the Board finds this August 2020 VA examination and medical opinion to be the most probative and persuasive evidence of record as to the etiology of this Veteran’s COPD. The Board notes that there is no other contrary competent medical evidence of record on the etiology of this Veteran’s COPD. The Board also observes that the Veteran’s service treatment records are silent regarding any treatment or complaint of a respiratory condition, and the first evidence of a respiratory disorder post-service was in 2014, decades after service. In summary, based on a review of the lay and medical evidence of record, the Board finds that the Veteran's COPD did not manifest during service and is not otherwise related to service, to include due to presumed herbicide exposure. Given that the Board has found the unfavorable August 2020 Respiratory Conditions examination and medical opinion to be the most probative evidence of record, the preponderance of the evidence is against the Veteran's claim for service connection for COPD, and the claim must be denied. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability. The Veteran contends that he is entitled to a TDIU due to his service-connected PTSD and Prostate Cancer. The Veteran also contended that he was entitled to a TDIU based on his COPD. See February 2013, VA-Form 21-8940; October 2013 Notice of Disagreement (NOD); See also, March 17, 2015, Statement in Support of Claim, VA Form 21-4138 re: prostate cancer. Based on a review of this Veteran’s claim, the Board finds that remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If the total rating is based on a disability or combination of disabilities for which the Schedule of Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341 (a). The ultimate question of whether a Veteran is capable of securing or following substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner."). The Veteran is service connected for post-traumatic stress disorder (PTSD), 30 percent from May 11, 2010, 50 percent from October 28, 2020; prostate cancer status post prostatectomy with urinary incontinence, 100 percent from May 11, 2010, 40 percent from November 1, 2011; coronary artery disease, 30 percent from May 10, 2020; bilateral tinnitus, 10 percent from May 11, 2010; bilateral hearing loss, 0 percent from May 11, 2010; erectile dysfunction associated with prostate status post prostatectomy with urinary incontinence, 0 percent from May 11, 2010. The Veteran has a combined disability rating of 60 percent from November 1, 2011; 70 percent from May 10, 2020; 80 percent from October 28, 2020. See 38 C.F.R. § 4.25 Table I -Combined Ratings Table. Therefore, the Board finds that the threshold requirement for a TDIU is met from May 10, 2020. Even when the criteria under 38 C.F.R. § 4.16 (a) are not met, entitlement to a TDIU on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). In this case, the Board notes that in his August 2020 Respiratory Conditions examination, for purposes of his entitlement to service connection for COPD, the VA examiner indicated that the Veteran is retired. Notably, the examiner reported that the Veteran could still do sedentary work from the pulmonary perspective, but would have difficulty maintaining work due to other medical conditions. The examiner reported that the Veteran sleeps adequately since he has been on the inhalers, does self-care, driving, shopping and light chores with just occasional rest breaks due to the breathing. The Veteran does a few heavy chores with rest breaks. He can walk at his own pace for about 1/2 mile before having to stop due to breathing symptoms. See August 13, 2020 Respiratory Conditions examination, pg. 4. While the Board is cognizant that the Veteran is not service connected for COPD, the Board observes that the VA examiner does not identify the other medical conditions that impact this Veteran’s ability to work or whether these other medical conditions are service-connected or non-service connected. The Board also observes that based on a review of the record, it is not clear whether the Veteran’s service-connected coronary artery disease (CAD), in combination with his other service- connected disabilities, to include his prostate cancer and the residuals thereof, preclude his from securing and substantially following substantially gainful employment. See Friscia v. Brown, 7 Veteran. App. 294, 297 (1994). Thus, in order to fairly adjudicate the Veteran's TDIU claim, the Board concludes that an additional examination and medical opinion is in needed. As a VA examiner has not assessed the impact of the Veteran's CAD on his ability to work, remand is necessary to obtain outstanding treatment records, including treatment records relevant to the Veteran’s CAD, and to afford the Veteran a medical examination to assess the current severity of his CAD and other service-connected disabilities and their impact on his ability to secure or maintain substantially gainful employment. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Accordingly, this matter is REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file, specifically to include any treatment for CAD. 2. After receiving the necessary authorization, send a records request to the identified medical provider(s). If no such records are available or do not exist, or the search for them yields negative results, and it is determined that further attempts to obtain these records would be futile, then this should be clearly documented in the claims file and the Veteran 3. Thereafter, schedule the Veteran for an appropriate VA general medical examination regarding his claim for a TDIU. The claims file must be made available to, and reviewed by, the examiner, and the examiner must indicate in the examination report that the claims file and this Remand were reviewed. All indicated tests must be performed, and all findings reported in detail. The examiner is asked to: (a) Opine on the functional impairment caused singly or in combination by the Veteran's service-connected disabilities, including coronary artery disease, posttraumatic stress disorder (PTSD), prostate cancer (*residuals), bilateral hearing loss, tinnitus, erectile dysfunction associated with prostate cancer status post prostatectomy with urinary incontinence. Note: The examiner is invited to review the November 9, 2020 PTSD Medical Opinion. (Document type, C&P Exam, Receipt Date, November 9, 2020.) The examiner should give consideration to the Veteran's level of education, special training, and previous work experience, but should not consider his age or the impairment caused by his nonservice-connected disabilities. (b) Provide an opinion as to the functional impairment caused by the service-connected disabilities with regard to his ability to perform work or worklike tasks. (c) Address the Veteran's primary contention that his prostate cancer or residuals thereof, precludes him from working. See also, March 17, 2015, Statement in Support of Claim, VA Form 21-4138 re: prostate cancer. A complete rationale should be provided for any opinion expressed and conclusion reached. (Continued on next page.) 4. Thereafter, readjudicate the TDIU claim. If any benefit sought on appeal remains denied, furnish the Veteran and his attorney a supplemental statement of the case and an appropriate period of time to respond. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Little, 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.