Citation Nr: 21025153 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-02 962 DATE: April 27, 2021 ORDER Entitlement to service connection for a lung disability, to include as due to herbicide exposure, is denied. Entitlement to service connection for an arthritis disability, to include as due to herbicide exposure, is denied. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era, and is thus presumed to have been exposed to herbicide agents, to include Agent Orange, during service. 2. The Veteran’s lung disability was not shown in service or for many years thereafter, and is not otherwise related to active duty service, to include as due to presumed in-service herbicide exposure. 3. The Veteran’s arthritis disability was not shown in service or for many years thereafter, and is not otherwise related to active duty service, to include as due to presumed in-service herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lung disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for an arthritis disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1964 to September 1966, to include service in the Republic of Vietnam. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a February 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in May 2018 and October 2020, when it was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the record shows that the additional development was completed, and the Board thus finds that there has been substantial compliance with its remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). The matter has now returned to the Board for appellate review SERVICE CONNECTION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease, such as arthritis, is shown as such in service or during the presumptive period for chronic diseases, subsequent manifestations of the same chronic disease are generally service connected. Entitlement to service connection based on chronicity pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a) Additionally, a Veteran who served in the Republic of Vietnam during the Vietnam era (January 9, 1962, to May 7, 1975) is 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)(iii). For Veterans presumed to have been exposed to herbicide agents during the required period, a presumption of service connection exists for certain enumerated diseases, including respiratory cancers, that manifest within one year of herbicide exposure to a degree of at least 10 percent disabling. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). When entitlement to service connection on a presumptive basis due to herbicide exposure is unavailable, a claimant may nevertheless establish service connection on a direct basis based on herbicide exposure with proof of actual causation. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to an herbicide agent does not preclude direct service connection for other conditions based on exposure to an herbicide agent); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In other words, if there is no presumptive service connection available, direct service connection can be established if the record contains competent medical evidence of a current disease process with a relationship to exposure to an herbicide agent while in military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Combee, 34 F.3d 1039 at 1043-44. 1. Service connection for a lung disability, to include as due to herbicide exposure, is denied. The Veteran seeks entitlement to service connection for a lung disability, diagnosed as benign pulmonary nodules. He contends that this condition resulted from his exposure to herbicides, to include Agent Orange, during military service in the Republic of Vietnam. See May 2014 Statement in Support of Claim. The Veteran’s military personnel records reflect that he served in the Republic of Vietnam during the Vietnam era from August 1965 to September 1966. Thus, he is presumed to have been exposed to herbicides. See 38 C.F.R. § 3.307(a)(6)(iii). It is not in dispute that the Veteran has a current diagnosis of multiple benign pulmonary nodules, first diagnosed in March 2008. See May 2014 Private Treatment Records. Service treatment records (STRs) do not show any complaints of, treatment for, or diagnoses of any lung conditions. His September 1966 separation examination reflects a normal evaluation of the lungs and chest. However, as noted above, the Veteran has conceded exposure to Agent Orange during his verified in-country service in the Republic of Vietnam from August 1965 to September 1966. Therefore, the first and second element of service connection has been met. 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. In this regard, the Board observes that VA has issued several notices in which it was determined that a presumption of service connection based upon exposure to herbicides used in Vietnam should not be extended beyond specific disorders, based upon extensive scientific research. See, e.g., 68 Fed. Reg. 27630-27641 (May 20, 2003); 67 Fed. Reg. 42600 (June 24, 2002); 66 Fed. Reg. 2376 (Jan. 11, 2001); 64 Fed. Reg. 59232 (Nov. 2, 1999). Although some lung conditions are on the list of diseases subject to presumptive service connection due to herbicide agent exposure, such as respiratory cancers, benign pulmonary nodules are not. Nevertheless, as noted above, direct service connection may still be available if the evidence establishes that such condition was caused by exposure. However, after consideration of the evidence of record, the Board concludes that while the Veteran has a current lung disability, diagnosed as multiple benign pulmonary nodules, and is presumed to have been exposed herbicides, the preponderance of the evidence weighs against finding that the Veteran's benign pulmonary nodules began during service or are otherwise related to an in-service injury, event, or disease, to include herbicide exposure. In so finding, the Board has considered the VA examination report of record, the Veteran's lay statements, and the pertinent medical evidence of record. Pursuant to the October 2020 Board remand, the Veteran was afforded a VA examination in December 2020. The examiner noted a current diagnosis of multiple benign pulmonary nodules but opined that this condition was less likely than not related to the Veteran’s military service, to include presumed herbicide exposure. As rationale, the examiner explained that there are multiple etiologies for benign pulmonary nodules, to include aging, smoking, infections that cause inflammation, and gastroesophageal reflux disease (GERD), which the examiner opined are all more likely etiological causes than herbicide exposure. The examiner further opined that the Veteran’s history of smoking, which is confirmed by VA treatment records, was the most likely cause of his current lung condition. The Board finds the December 2020 VA examiner’s opinion to be highly probative, as it was based on examination of the Veteran, review of the claims file, and is supported by an adequate medical rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Notably, in finding the Veteran’s multiple benign pulmonary nodules to be unrelated to service or herbicide exposure, the December 2020 examiner identified smoking as the most likely etiology of the veteran’s lung disability. There are no medical opinions in support of the Veteran’s claim or contrary to the findings of the December 2020 VA examiner. Based on the foregoing, the Board concludes that the preponderance of the evidence is against the claim of service connection for a lung disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application. See 38 U.S.C. § 7105(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Service connection for an arthritis disability, to include as due to herbicide exposure, is denied. The Veteran seeks entitlement to service connection for an arthritis disability, diagnosed as rheumatoid arthritis and osteoarthritis, claimed as arthritis throughout body, and to include as due to herbicide exposure. See May 2014 Statement in Support of Claim. Cognizant of VA’s duty to consider all disorders reasonably encompassed by the Veteran’s claim, the Board has recharacterized the issue on appeal as entitlement to service connection for an arthritis disability, to include rheumatoid arthritis and osteoarthritis, pursuant to the Court’s holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009). There is no argument or indication that the Veteran’s arthritis disability first manifested in service or within a year after separation from service. Rather, the evidence shows that the Veteran’s rheumatoid arthritis/osteoarthritis first manifested many years after service. See May & October 2014 VA Treatment Records. Pursuant to the October 2020 Board remand, the Veteran was afforded a VA examination in December 2020. The examiner noted that the Veteran had current diagnoses of rheumatoid arthritis and osteoarthritis with a reported onset of either 2010 or 2015. Regarding nexus, the examiner opined that the Veterans rheumatoid arthritis and osteoarthritis were less likely than not related to service, to include exposure to herbicide agents. As rationale, the examiner noted that the Veteran’s rheumatoid arthritis and osteoarthritis were first diagnosed in 2015, 49 years after he separated from active military service. The examiner noted that arthritis is not currently a condition presumed by VA to be associated with exposure to herbicide agents. He further stated that while its etiology is unknown, there is no medical literature to support an etiological link between arthritis and herbicide exposure. The Board concludes that, while the Veteran has a current diagnosis of rheumatoid/osteoarthritis, a chronic disease under 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), it was not shown as chronic within service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Walker, 708 F.3d at 1338; Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). The Board acknowledges that the Veteran has a current arthritis disability, to include rheumatoid arthritis and osteoarthritis. However, the record reflects that the Veteran’s earliest reported onset of symptoms of an arthritis disability was in 2010. See 12/03/2020 C&P Exam at 3. As the Veteran separated from service in September 1966, at least 44 years passed before the Veteran was diagnosed with or reported symptoms of an arthritis disability. Therefore, the preponderance of the evidence is against a finding that the Veteran’s osteoarthritis manifested to a compensable level within a year of his discharge from service, and presumptive service connection as a chronic disease is not warranted. 38 U.S.C. §§ 1101(3), 1112, 1113, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker, 708 F.3d at 1331. Additionally, the evidence does not support a finding that a chronic condition of arthritis was noted in service with continuity of symptomatology thereafter. The evidence fails to show, and the Veteran does not contend, that he experienced symptoms of an arthritis disability in service with continuity of symptomatology thereafter. Notably, STRs reveal that the Veteran reported no history of swollen or painful joints during his separation examination in September 1966. Further, rheumatoid arthritis is not an enumerated chronic disease, so there is no basis to consider any contention regarding continuity of symptomatology since service. 38 C.F.R. § 3.309(a); see Walker, 708 F.3d at 1331. As such, service connection for an arthritis disability pursuant to 38 C.F.R. § 3.309(a) is not warranted. Finally, regarding the Veteran’s theory of entitlement to service connection based on herbicide exposure, as noted above, the Veteran is presumed to have been exposed to Agent Orange during his verified in-country service in the Republic of Vietnam from August 1965 to September 1966. 38 C.F.R. § 3.307(a)(6)(iii). While neither rheumatoid arthritis nor osteoarthritis are diseases subject to service connection on a presumptive basis due to in-service exposure to herbicides, the Veteran is not precluded from establishing entitlement to service connection for an arthritis disability with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this regard, however, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran’s arthritis disability began during service or is otherwise related to an in-service injury, event, or disease, to include the Veteran’s presumed exposure to herbicides, to include Agent Orange. Specifically, the December 2020 VA examiner discounted the possibility that either the Veteran’s current rheumatoid arthritis or osteoarthritis are related to his presumed in-service herbicide exposure. Here, the Board finds the December 2020 VA examiner's opinion to be highly probative, as it was based on examination of the Veteran, review of the claims file, and is supported by adequate medical rationale. The Board acknowledges the Veteran’s lay statements and his sincere belief that his claimed arthritis disability is related to in-service exposure to herbicides. However, he is not competent to provide an opinion as to nexus in this case. These issues are medically complex, as they involve internal disease processes and require knowledge of interpretation of complicated diagnostic medical testing. See Jandreau v. Nicholson, 492 F.3d at 1377 n.4. Therefore, his opinion on the matter lacks probative weight. Based on the foregoing, the Board concludes that the preponderance of the evidence is against the claim of service connection for an arthritis disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application. See 38 U.S.C. § 7105(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MARTHA R. LUBOCH Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Tremont 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.