Citation Nr: 21027748 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-30 589 DATE: May 6, 2021 ORDER Entitlement to service connection for a pulmonary disability, to include chronic obstructive pulmonary disease (COPD), claimed as the result of exposure to herbicide agents, is denied. FINDING OF FACT The preponderance of the evidence weighs against associating a pulmonary disability, to include chronic obstructive pulmonary disease (COPD), with any incident of service. CONCLUSION OF LAW The criteria for entitlement to service connection for a pulmonary disability, to include chronic obstructive pulmonary disease (COPD), claimed as secondary to exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1967 to October 1971. The Veteran died in December 2017. The Appellant is the surviving spouse. She has been substituted for the Veteran in this appeal. The Appellant appeared at an August 2019 hearing before the undersigned Veterans Law Judge at the Las Vegas, Nevada, Office. The hearing transcript is of record. In light of the treatment records that have been obtained and associated with the record, the obtaining of the requested medical opinions, and the further adjudicatory actions taken by the AOJ, the Board finds that there has been substantial compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999). 1. Entitlement to service connection for a pulmonary disability, to include chronic obstructive pulmonary disease (COPD), claimed as secondary to exposure to an herbicide agent In general, service connection may be established for disability or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be established for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d). To establish a service connection for a disability, 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163(Fed. Cir. 2004). A disability may be service-connected if the evidence of record shows that the Veteran currently has a disability that was chronic in service or that was chronic as defined by regulation with continuity of symptomatology demonstrated after service. 38 C.F.R. § 3.303(a),(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The service medical records show that in March 1969, the Veteran was treated for a viral upper respiratory infection. The October 1971 service separation examination report did not find the presence of respiratory symptoms. In April 2020, a VA examiner reviewed the evidence of record. The examiner noted that the service medical records were silent regarding any pulmonary condition in service. The examiner found that the VA treatment records documented severe obstructive sleep apnea, a history of pulmonary hypertension, allergic rhinitis, reactive airway disease (asthma), and restrictive disease related to the Veteran's obesity. The examiner opined that the Veteran's pulmonary disabilities, to include asthma, allergic rhinitis, restriction secondary to obesity, and severe obstructive sleep apnea were not due to service or herbicide agent exposure. The examiner explained that there was no plausible medical or pathophysiologic causal nexus between herbicide agent exposure and the pulmonary disabilities. The examiner opined that the claimed disabilities were less likely than not (less than 50 percent probability) incurred in or caused by the claimed event, injury, or illness in service. The examiner also stated that the Veteran's pulmonary disabilities, to include severe obstructive sleep apnea, asthma, pulmonary restriction, and allergic rhinitis, had no plausible medical or pathophysiologic relationship to the Veteran's service-connected diabetes mellitus. The examiner stated that medical records did not suggest or support any such relationship. The examiner opined that the claimed conditions were less likely than not (less than 50 percent probability) proximately due to or the result of the service connected disabilities. In January 2021, a VA examiner reviewed the evidence of record. The examiner opined that the claimed pulmonary disabilities, to include COPD, asthma, and restrictive lung volume, were less likely than not incurred in or caused by the Veteran's service. The examiner opined that the claimed pulmonary disabilities were less likely than not proximately due to or the result of the service-connected disabilities. The examiner also opined that the claimed pulmonary disabilities were not at least as likely as not incurred in or caused by exposure to herbicide agents. The examiner explained that service examination reports and a report of medical history completed at the end of the Veteran's service did not show a history of or physical examination findings for an ongoing acute or chronic treatment of a respiratory condition. The examiner noted that before his death, the Veteran had diagnoses of COPD, asthma, and restrictive lung volume secondary to his body habitus and morbid obesity. The examiner also noted that triggers for asthma often include allergens such as pollen, dust mites, cockroaches, molds, and animal dander. The examiner commented that allergens can make COPD symptoms worse, and if left untreated, allergies and asthma can increase the chances for COPD in certain individuals. The examiner explained that a medical record review did not reveal consistent clinical evidence to support the theory that exposure to herbicide agents negatively impacted or proximately caused the Veteran's COPD, asthma, and restrictive lung volume condition. The examiner stated that the Veteran's respiratory disabilities were independent and separate from the conditions of diabetes mellitus, type II, and congestive heart failure. The examiner also explained that a medical record review did not reveal consistent clinical evidence to support the theory that any identified pulmonary disability had been aggravated by diabetes mellitus, congestive heart failure, or the other service-connected disabilities. The Appellant has asserted that the had a pulmonary disorder incurred secondary to exposure to herbicide agents during service. A Veteran who served in the Republic of Vietnam from January 9, 1962, to May 7, 1975, shall be presumed to have been exposed during that service to herbicide agents, unless there is affirmative evidence to establish that the Veteran was not exposed to any herbicide agent during that service. 38 U.S.C. § 1116(f). In this case, the service personnel records confirm that the Veteran served in Vietnam during the requisite time period. He is presumed to have been exposed to herbicide agents during that Vietnam service. However, the Veteran's respiratory disorders, to include COPD, asthma, and restrictive lung volume, are not diseases for which VA has determined that presumptive service connection based on exposure to herbicide agents is warranted. The evidence does not show any respiratory cancer has been diagnosed. VA has determined that there is no positive association between exposure to herbicide agents and any other condition for which it has not specifically determined that a presumption of service connection is warranted. 79 Fed. Reg. 20,308 (Apr. 11, 2014); 75 Fed. Reg. 53,202-53,216 (Aug. 31, 2010); 72 Fed. Reg. 32,345-32,407 (June 12, 2007); 61 Fed. Reg. 57,586-57,589 (Nov. 7, 1996); 59 Fed. Reg. 341-46 (Jan. 4, 1994). In the absence of a diagnosed disease for which the presumption applies, the regulations for presumptive service connection based on exposure to herbicide agents are not applicable. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). Nor does the evidence of record in this case rise to the level of equipoise regarding an association between exposure to herbicides and the development of a pulmonary disorder, to include COPD, asthma, and restrictive lung volume, on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In April 2020 and January 2021, a VA examiner opined that the claimed pulmonary disabilities were less likely than not related to active duty service. The Board places great weight on the opinion of the VA examiners, as the VA examiners had the medical training and expertise necessary to offer a medical opinion in such a complex matter. Other than the Veteran's and Appellant's lay statements, there is no evidence of record that contradicts the opinion of the April 2020 and January 2021 VA examiners. As lay persons, the Veteran and the Appellant have not been shown to have the training or expertise necessary to offer a competent opinion in such a complex medical matter. Therefore, the Board finds the April 2020 and January 2021 VA examiners' opinions to be more probative than the Veteran's and Appellant's assertions. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Finally, the Board has considered whether service connection for the claimed pulmonary disabilities could be warranted on a direct basis or as secondary to the service-connected disabilities. However, the April 2020 and January 2021 VA examiners also opined that the claimed pulmonary disabilities were not at least as likely as not related to active service or to the service-connected disabilities. None of the Veteran's medical treatment providers have given any indication that the claimed pulmonary disabilities could be related to active service. The only evidence which provides any connection between the claimed pulmonary disabilities and service comes from lay statements, which are not shown to have the medical competence to provide medical opinions diagnosing a disability or relating a disability to service. It is to be noted that the Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). However, the Board is required to assess the credibility and weight to be given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board has considered the Veteran's and Appellant's lay statements. Laypersons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the specific issues in this case, whether claimed pulmonary disorders were caused by active service, exposure to herbicides, are otherwise related to service, or are related to service-connected disability, those issues fall outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As laypersons, it is not shown that the Veteran or the Appellant possess the medical expertise to provide such opinions, and no competent nexus opinions are of record. In April 2020 and January 2021, VA examiners reviewed the claims file and opined that the Veteran's conditions were less likely than not incurred in or caused by his service or service-connected disabilities. The Board finds the VA examiners' opinions to be more probative than the lay statements of record. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The opinions of the VA examiners are highly probative because together, they were supported by detailed rationale and were provided by trained medical professionals. The VA examiners specifically identified and discussed the Veteran's contentions and theory concerning service and his claimed residuals. Significantly, the examiners also referenced the Veteran's contentions and addressed other possible etiologies. Accordingly, the VA examiners' opinions are found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion reached. As is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Veteran and the Appellant have not submitted competent evidence showing that the claimed pulmonary disabilities manifested in service, are related to service or any event, injury, or disease during service, or are related to any service-connected disabilities. As the preponderance of the evidence is against the claim of entitlement to service connection for a respiratory disability, the claim for service connection for a pulmonary disorders, to include COPD, asthma, and restrictive lung volume, to include as secondary to herbicide agent exposure, must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Layton, 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.