Citation Nr: 21027477 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-46 523 DATE: May 5, 2021 ORDER Entitlement to service connection for a right lung nodule is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's right lung nodule began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a right lung nodule have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1968 to September 1970. In September 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board remanded this case in February 2020. The remand directed the Agency of Original Jurisdiction (AOJ) to make appropriate efforts to obtain records from the private physician the Veteran identified at the September 2019 Board hearing and schedule the Veteran for a VA examination as to his claimed right lung nodule. Pursuant to the remand, the AOJ requested that the Veteran complete a VA Form 21-4142 authorizing release of records from the private physician he identified at the Board hearing. The Veteran subsequently provided a completed VA Form 21-4142, and records from the private treatment source listed on that Form were associated with the records. In addition, the Veteran was provided a VA respiratory conditions examination in December 2020. The December 2020 VA examiner provided an opinion that is consistent with and responsive to the February 2020 Board remand directives and that is otherwise adequate for decision-making purposes. Accordingly, the Board finds that VA at least substantially complied with the February 2020 remand. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran has not raised any issues with regard to the duty to notify or duty to assist as they pertain to the issue denied in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issue denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Entitlement to service connection for a right lung nodule The Veteran contends that his current right lung nodule is related to in-service pneumonia or upper respiratory infections, or is due to in-service exposure to herbicide agents. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, although the Veteran has a current diagnosis of right lung nodule, and the evidence shows that he had left lobe pneumonia, bronchitis, and upper respiratory infections during his active service, the preponderance of the evidence weighs against finding that the Veteran's current right lung nodule began during his active service or is otherwise related to an in-service injury, event, or disease. The Veteran's service treatment records show treatment for left lobe pneumonia, bronchitis, and upper respiratory infections. The Veteran had a normal clinical evaluation of the lungs and chest at an August 1970 medical examination for separation from active service. He denied asthma, shortness of breath, pain or pressure in the chest, and chronic cough on an August 1970 report of medical history for separation from active service. The service treatment records do not show that the Veteran was diagnosed with a right lung nodule during his active service. The earliest dated evidence of record showing a diagnosis of right lung nodule is a VA treatment note indicating that a right lung nodule was seen on a chest X-ray in January 2012, several decades after his separation from active service. The right lung nodule was confirmed on a chest CT scan in February 2012. Thus, the record does not show that the Veteran's right lung nodule first manifested during his active service or shortly after his separation from active service. The December 2020 VA examiner opined that the Veteran's right lung nodule is not at least as likely as not related to an in-service injury, event, or disease, including the diagnosed in-service respiratory conditions. As a rationale for that opinion, the examiner explained that the in-service respiratory issues were acute only and that there is no evidence of chronicity of care. The examiner further explained that no nodules were seen on chest X-ray during service. According to the American Thoracic Society, pulmonary nodules can be seen in up to half of patients who receive a chest X-ray or a CT scan. Nodules are usually caused by scar tissue, a healed infection, or an irritant. In this case, it is more likely than not that the Veteran's right lung nodule is related to his extensive smoking history. If the lung nodule were due to the upper respiratory infections or pneumonia noted in the service treatment records, it would have been seen at or near that time on imaging. However, the lung nodule did not appear until 2012. The Board finds the examiner's opinion to be probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examiner explained that if the current right lung nodule had been present during the Veteran's active service, it would have been seen on imaging at or near that time. She also explained that the Veteran's extensive smoking history is the more likely cause of the right lung nodule. In that regard, the Board notes that recent private treatment records dated in December 2019 and December 2020 confirm that the Veteran is a current smoker and has a 50 pack-year smoking history. The Board acknowledges the Veteran's beliefs that his current right lung nodule is related to his active service. However, the Veteran is not considered competent to provide a nexus opinion regarding the issue. The issue is medically complex, as it requires knowledge of the pathology and likely causes of that medical condition. Therefore, it is outside the competence of a lay witness such as the Veteran, who has not been shown to have the medical training or credentials necessary to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Veteran's statements are not probative in establishing a nexus between the current right lung nodule and his active service. The Board acknowledges the Veteran's contention that his right lung nodule is due to in-service exposure to herbicide agents. VA has not obtained an opinion as to that contention. However, the Veteran has not presented competent evidence that the condition may be etiologically related to in-service herbicide agent exposure beyond stating at the September 2019 Board hearing that his private treatment provider said that such a relationship is possible. Records from that private treatment provider have been obtained, and they do not includes any statements attributing the current right lung nodule to in-service herbicide agent exposure. Although medically competent evidence is not always required to trigger VA's duty to assist in providing a VA examination, a conclusory generalized lay statement suggesting a nexus between a current disability and an in-service event, such as exposure to herbicide agents, does not suffice to meet the standard of 38 C.F.R. § 3.159(c)(4)(i)(B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010). In this case, the only evidence that the Veteran's right lung nodule may be related to in-service herbicide agent exposure is the Veteran's own conclusory generalized lay statements. Accordingly, the Board finds that the threshold for obtaining a VA opinion as to the contention have not been met, and that such an opinion is not required in this case. Noncancerous lung nodules such as the Veteran's diagnosed right lung nodule are not on the list of diseases associated with exposure to herbicide agents. Therefore, the Veteran's right lung nodule cannot be service connected on a presumptive basis under the provisions of 38 C.F.R. §§ 3.307(a)(6) and 3.309(e). Furthermore, there is no probative evidence of record that the current right lung nodule is due to in-service exposure to herbicide agents. Therefore, service connection, as due to herbicide agent exposure, on a direct basis is also not warranted. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In summary, the preponderance of the evidence is against finding that the Veteran's right lung nodule began during his active service, or is otherwise related to an in-service injury or disease. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for a right lung nodule. Because the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.