Citation Nr: 21027708 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 15-34 154 DATE: May 6, 2021 ORDER Entitlement to service connection for a respiratory disability, claimed as pulmonary fibrosis, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's respiratory disabilities were incurred in or otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from January 1954 to August 1975. He died in February 2017, and the Appellant is his surviving spouse. The Board is thankful for the Veteran's many years of service to our country. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded by the Board in February 2017, August 2020, and January 2021, each time to obtain a new VA examination. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Board finds that the January 2021 remand instructions were substantially complied with; the Board will therefore proceed with a decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection In this case, the Appellant seeks entitlement to service connection for a respiratory disease, specifically chronic obstructive pulmonary disease (COPD) and pulmonary fibrosis. Neither of these diseases is subject to presumptive service connection, see 38 C.F.R. § 3.309(e), but may still be service connected on a direct basis. Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran's medical records show that he was diagnosed with COPD and pulmonary fibrosis. Therefore, the first element of direct service connection has been met. The Veteran's service treatment records (STRs) show that he was treated for upper respiratory infections during active service, and his exposure to herbicide agents (Agent Orange) has been conceded. See 38 C.F.R. § 3.307(a)(6). Therefore, the second element of direct service connection has been met. The remaining question is whether there is a link between the Veteran's respiratory disabilities and either his in-service respiratory infections or his herbicide agent exposure. The Veteran had three VA medical examinations to determine the etiology of his respiratory disabilities. All of these examinations took place after the Veteran's death, and were based on a review of the medical evidence of record. All of these examinations found that it was less likely than not that the Veteran's respiratory disabilities were service connected. The first examiner, in June 2020, based this conclusion on the fact that the Veteran was not diagnosed with pulmonary fibrosis until 2013, several decades after leaving active service, and that he had a long history of smokingwhich the examiner commented is known to cause pulmonary fibrosis. The Board previously found this opinion to be inadequate; while it noted instances of respiratory infections in the Veteran's STRs, the examiner did not directly state how they concluded that these infections were unrelated to the respiratory disabilities the Veteran contracted later in life. Furthermore, the opinion did not address the issue of herbicide agent exposure at all. Therefore, the Board assigns this opinion little probative weight. The second examiner, in November 2020, found that the Veteran's respiratory disabilities were less likely than not related to service, citing medical literature that found no correlation between herbicide agent exposure and COPD, or herbicide agent exposure and pulmonary fibrosis. On the issue of whether the Veteran's respiratory disabilities were related to herbicide agent exposure, the Board finds this opinion highly probative, as it is based on an explicit review of the Veteran's claims file and medical history and is supported by adequate reasoning and medical basis. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). However, the opinion does not at all address the Veteran's history of upper respiratory infections during active service, which is why the Board remanded for a third examination in January 2021. In February 2021, a third examiner found that it was less likely than not that the Veteran's in-service upper respiratory infections caused him to develop COPD or pulmonary fibrosis. The examiner stated that there was no evidence in medical literature to support a correlation between viral and bacterial upper respiratory infections and either COPD or pulmonary fibrosis. The Board finds that this examination is entitled to probative weight, as it is based on an explicit review of the Veteran's claims file and medical history and is supported by adequate reasoning and medical basis. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). All three examiners pointed out the Veteran's long history of cigarette smoking, and noted that smoking is a well-documented risk factor for both COPD and pulmonary fibrosis. VA provisions prohibit service connection on the basis that it resulted from injury or disease attributable to a veteran's use of tobacco products during service, to include cigarettes, unless it can be "otherwise shown" to be incurred during service or secondary to another service-connected cardiovascular disease. See 38 C.F.R. § 3.300. The Board acknowledges statements by the Veteran and the Appellant in support of the present claim, and notes that lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. However, the etiology of COPD and pulmonary fibrosis is a complex medical question, to which laypersons are not competent to testify. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). With two adequately-supported opinions from medical providers finding that the Veteran's respiratory disabilities are less likely than not related to service, and no competent medical evidence to the contrary in the record, the Board finds that the preponderance of the evidence is against a finding of entitlement to service connection for a respiratory disability. The benefit of the doubt doctrine therefore does not apply, and the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (Continued on the next page) The Board is grateful to the Veteran and his surviving spouse for his honorable service and regrets that a more favorable outcome could not be reached for the appellant. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shermila Sundquist 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.