Citation Nr: 21026874 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-43 718 DATE: May 4, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD), secondary to posttraumatic disorder (PTSD) and agent orange exposure, is denied. FINDING OF FACT The Veteran's COPD is not related to the service-connected PTSD or agent orange exposure. CONCLUSION OF LAW The criteria for service connection for COPD, to include as secondary to PTSD and agent orange, are not met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.300(c), 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in July 2019. The claim was remanded for the RO to afford the Veteran a VA examination. The Veteran attended a VA examination in November 2019. Thus, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the July 2019 Board remand directive and that the matter has been properly returned to the Board for appellate consideration. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran claims he suffers from COPD secondary to his PTSD. Specifically, he alleges he self-medicated his PTSD by smoking cigarettes which resulted in COPD. He also offers an alternative theory and alleges his COPD is a result of agent orange exposure from truck dust he inhaled while building roads. For the reasons discussed below, the Board finds the evidence weighs against a finding that the Veteran's current disability is related to service. Therefore, service connection is not warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). For claims for secondary service connection received by VA after June 9, 1998, a disability that is proximately due to or the result of an injury or disease previously service-connected on the basis that it is attributable to the veteran's use of tobacco products during service will not be service-connected under § 3.310(a). 38 C.F.R. § 3.300(c). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of § 3.307(d) are also satisfied. AL amyloidosis, chloracne or other acneform disease 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), soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The herbicide-presumptive diseases shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307 (a)(6)(ii). VA is responsible for determining 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. Turning to the evidence, service treatment records (STRs) do not reflect any symptoms, diagnosis, or treatment for a lung disability or COPD. On the February 1970 separation examination normal clinical findings were noted for the lungs and chest. In the concurrent report of medical history, the Veteran denied shortness of breath, pain or pressure in chest, and chronic cough. Post service, a November 2009 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. The Veteran was diagnosed with PTSD. He reported he was able to function well until this year, when the death of a co-worker and discovering a dead body, reminded him of his Vietnam military experiences. A week later another co-worker died, and the Veteran had worked with both co-workers for over ten years. One of his military buddies committed suicide in June 2002 and another is an alcoholic. He has always had flashbacks but for the most part he was able to function well. The examiner opined although the Veteran has performed well over the years occupationally and socially, and does appear to perform reasonably well at the present time, it appears that the events of the past year that are of a traumatic nature have brought back repressed memories of his military experiences. A June 2013 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. The examiner noted the Veteran was diagnosed with COPD in April 2007 and had smoked for 30 years but quit in 1999. It was opined the Veteran's COPD is less likely as not caused by his PTSD. Also, it was opined the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. It was reasoned, the Veteran was a smoker for 30 years and 90 percent of all COPD diagnoses are secondary to smoking. It was noted there are no other autoimmune conditions or exposures and there are no links between PTSD causing COPD. A July 2013 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. The examiner was asked to opine on whether the Veteran's nicotine dependence is at least as likely as not aggravated beyond its natural progression by PTSD. It was opined the claimed condition is less likely than not proximately due to or the result of the Veteran's service-connected condition. Also, it was opined, the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. It was reasoned, Nicotine and Tobacco Research (2007), notes: "observational studies indicate that smokers with PTSD have lower quit rates than smokers without PTSD. Yet a few tobacco cessation treatment trials in smokers with PTSD have achieved quit rates comparable with control trials of smokers without mental disorders. That indicates that PTSD does not "aggravate" the nicotine dependence. The examiner noted the, the March 2013 edition of JAMA psychiatry concluded the findings do not support the hypothesis that exposure to traumatic events per se increases the risk for substance use disorders. He also noted recent studies indicate a strong association between posttraumatic stress disorder (PTSD) and nicotine dependence (ND). However, the explanation for the association remains unclear. It was further noted, Most of the PTSDND association is explained by shared genetic effect. However, there is a substantial, robust PTSD-ND association not explained by shared risk factors. Multiple explanations for association were supported; however, the strongest association was consistent with pre-existing ND increasing the risk of PTSD onset. This data suggests that male veterans with a history of ND may be at increased risk for PTSD. Further research on the biological mechanism underlying PTSD-ND comorbidity is needed. He noted "association does not prove causation. This is a peer-reviewed journal article that does not establish PTSD as the cause of or persistent aggravation of nicotine dependence. It does "suggest" that nicotine dependence may predispose an individual to developing PTSD." In November 2013, the Veteran's private doctor, T.F., indicated the Veteran was exposed to agent orange while in the military and there is documentation of an association between exposure to agent orange and the development of COPD. In March 2014, private doctor T.F., submitted a letter indicating there is ample proof of a correlation between tobacco smoking and COPD. Recently, literature relating to a correlation between PTSD and smoking tobacco, has indicated a causal relationship exist. He opined, with a reasonable degree of medical certainty, he believes the Veteran began smoking during his service in the military to self-medicate his PTSD. He also opined the smoking contributed to the development of COPD. The doctor provided abstracts for two studies discussing the association of nicotine and PTSD. In December 2018 and September 2019, private doctor T.F., submitted a letter addressing his opinion on the causality of the Veteran's COPD. He has cared for the Veteran for 20 plus years. He indicated the Veteran self-medicated his PTSD with smoking during the military and there is ample evidence to corroborate the correlation between tobacco smoking and COPD. He noted the Veteran was also exposed to agent orange, another known pulmonary toxin. The primary causes of COPD include, smoking, air pollution, occupational exposure, genetics, and infectious diseases. He opined the Veteran does not have a genetic predisposition and does not suffer from infectious diseases so one could only conclude, with a reasonable degree of medical certainty, the Veteran's COPD is directly related to smoking cigarettes as self-treatment for PTSD and prolonged exposure to agent orange. He noted there is marginal contradictory or contravening evidence to this information. A November 2019 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed with COPD. He reported he quit smoking in 1996. The examiner opined it is less likely than not that the Veteran has a diagnosis of COPD that was incurred in the chemical exposure during service. It was reasoned, COPD is not a conceded condition with regards to [agent orange] AO exposure. In addition, there is no generally accepted evidence AO causes COPD. The WHO reports occupational dust as a cause of COPD but this refers to chemical dust such as coal, silica or cadmium dust, not from dirt... kicked up by vehicles on a dirt road. No other chemicals were referenced in the remand." The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the Veteran's COPD is not related to his service-connected PTSD or agent orange exposure. The Board notes, in a December 2009 rating decision, the Veteran was granted service connection for PTSD associated with combat zone service. Generally, service connection cannot be established for a disability that is attributed to tobacco use during service. 38 C.F.R. § 3.300. However, secondary service connection is allowed if a service-connected disability proximately caused the Veteran to use tobacco products after service. See VAOPGCPREC 6-2003. According to the VA General Counsel opinion, where secondary service connection for disability due to tobacco use is at issue, adjudicators must resolve: (1) whether the service-connected disability caused the Veteran to use tobacco products after service; (2) if so, whether the use of tobacco products as a result of the service-connected disability was a substantial factor in causing a secondary disability; and (3) whether the secondary disability would not have occurred but for the use of tobacco products caused by the service-connected disability. Id. If these questions are answered in the affirmative, service connection can be granted for the secondary disability. Id. In this regard, the Board finds the July 2013 VA opinion probative. In this case, the Veteran is arguing PTSD led to smoking which lead to COPD. The July 2013 examiner found the service-connected PTSD has not caused or persistently aggravated his nicotine dependence. Notably, the July 2013 VA examiner noted a peer-reviewed journal article that does not establish PTSD as the cause of or persistent aggravation of nicotine dependence. It was suggested that nicotine dependence may predispose an individual to developing PTSD; however, association does not prove causation. The Board acknowledges the March 2014, December 2018, and September 2019 private opinion from T.F. Although it was opined the Veteran's COPD is directly related to smoking cigarettes as self-treatment for PTSD, the evidence does not support the opinion. The Veteran was not diagnosed with PTSD until November 2009 and during that VA examination he reported he was functioning well until recent events from 2008, triggering his PTSD. The PTSD diagnosis and reports during the examination suggest PTSD did not cause the Veteran to use tobacco after service. To the contrary the July 2013 VA opinion is supported by the post-service treatment records, which show that the Veteran was not diagnosed with PTSD until 2009, 39 years after service and had stopped smoking at least 10 years prior to that. Again, per the November 2009 VA examination recent events triggered the PTSD. The evidence does not support the notion that the Veteran had been self-medicating a mental diagnosis that had not been triggered. Therefore, the July 2013 VA examination is more probative. Furthermore, the Board finds that the evidence weighs against a finding that the COPD is related to agent orange exposure. Initially, the Board notes the Veteran served in Vietnam during the qualifying period and herbicide exposure is therefore presumed. COPD is not among the diseases subject to presumption as listed in 38 C.F.R. § 3.309(e). However, when service connection cannot be granted on a presumptive basis, the Veteran may still establish service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this regard the Board finds the November 2019 VA opinion probative. The November 2019 VA examiner found the Veteran's COPD was not related to agent orange exposure, noting there is no generally accepted evidence that agent orange causes COPD. Additionally, the examiner noted "the WHO reports, occupational dust as a cause of COPD but this refers to chemical dust such as coal, silica or cadmium dust, not from dirt... kicked up by vehicles on a dirt road." The Board acknowledges the November 2013, December 2018, and September 2019 private opinion from T.F. It was opined the Veteran's COPD is related to prolonged exposure to agent orange, noting there is documentation of an association between exposure to agent orange and the development of COPD. The Board finds this rationale is inadequate. Noting there is documentation to support a specific position without providing the documentation or explaining how the disability is related to agent orange exposure is not sufficient to meet the proximate cause standard outlined in 38 C.F.R.§ 3.310. Therefore, the November 2019 VA examination is more probative. The Board has a duty to address the credibility and weight to be given to the evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board finds the Veteran's statement asserting he smoked in service due to PTSD, not credible. The Veteran did not assert his smoking was related to PTSD until he filed for benefits in May 2013. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (in analyzing credibility, the Board is justified in taking into account multiple factors, including lack of contemporaneous medical evidence, possible bias, and inconsistencies within the record); Pond v. West, 12 Vet. App. 341, 345 (1999) (while the Board is not free to ignore a claimant's assertion as to any matter on which he is competent to offer an opinion, it may properly consider the personal interest a claimant has in his or her own case). In this case the Veteran did not complain of experiencing PTSD symptoms until approximately 2009 after the loss of two co-workers, which triggered his PTSD. At that point he was diagnosed with a mental disorder and granted service connection. The Veteran had not smoked in the 10 years prior to his PTSD diagnosis. To now claim the smoking after service was due to PTSD is not consistent with the record. The Veteran was not diagnosed with PTSD until 2009. Therefore, the Board does not find the Veteran's allegations of smoking in an effort to self-medicate PTSD, credible. The Board reviewed the article submitted with the March 2014 private opinion. Both articles discussed an association between smoking and PTSD. A comorbidity with smoking and PTSD is not sufficient to meet the proximate cause standard outlined in 38 C.F.R.§ 3.310. Furthermore, the Board finds the article is irrelevant because the Veteran had stop smoking 10 years prior to his PTSD diagnosis. Likewise, the Board reviewed the article submitted in December 2015 on PTSD and smoking. The Board finds the article is inconclusive and irrelevant. Again, the Veteran had stop smoking 10 years prior to his PTSD diagnosis. It's inconclusive because it noted future research is needed on the mechanisms underlying the PTSD-smoking relationship. Therefore, the Board affords no probative value to the submitted March 2014 and December 2015 articles. Accordingly, service connection for COPD, secondary to PTSD and agent orange exposure is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.§5107(b); 38 C.F.R.§ 3.102; see also Gilbert, 1 Vet. App. at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jackman, 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.