Citation Nr: 21028061 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-46 973 DATE: May 10, 2021 ORDER Entitlement to service connection for respiratory disability, to include lung cancer and COPD, is denied. FINDING OF FACT The Veteran's respiratory disability, including lung cancer and COPD, first manifested many years after service and has not been medically related to his service, to include his exposure to asbestos and his presumed exposure to herbicide agents. CONCLUSION OF LAW The criteria for entitlement to service connection for respiratory disability, to include lung cancer and COPD, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 1154, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.313. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Navy from October 1964 to October 1968. He is a Veteran of the Vietnam War. This matter comes to the Board of Veterans' Appeals (Board) on appeal of an August 2017 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In March 2020, the Board remanded the issue on appeal for additional development, and the case has since been returned for further appellate review. A remand by the Board confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). The Board's 2020 remand directed the RO to obtain outstanding VA and private treatment records. Pertinent records have been associated with the claims file. The Board's remand also instructed the RO to obtain an addendum opinion on the Veteran's respiratory conditions, to include an opinion on the Veteran's presumed exposure to herbicides. An addendum opinion was provided in April 2020; however, remand is necessary to address deficiencies in the opinion. As such, substantial compliance has been achieved. Id. at 271. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 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). Certain chronic diseases (like cancer) will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Alternatively, regulation provides that a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 (e), will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307 (a). Lung cancer is one such disease. Nevertheless, the United States Court of Appeals for the Federal Circuit has determined that a claimant who suffers from a disability that is not listed among those for which presumptive service is afforded based on exposure to herbicide agents is not precluded from establishing service connection for such disability as due to herbicide agent exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). 1. Entitlement to service connection for respiratory disability, to include lung cancer and COPD The Veteran contends he is entitled to service connection for lung cancer, later expanded by the Board to include any respiratory disease (including his diagnosed chronic obstructive pulmonary disease (COPD)) pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran asserts his respiratory conditions are due to presumed herbicide exposure while serving in the Republic of Vietnam. Alternatively, he asserts his respiratory conditions are due to his conceded exposure to asbestos as a Navy machinist's mate. 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, to include asbestos and herbicide exposure. The Board concludes that, while the Veteran has a current diagnosis and asbestos and herbicide exposure is conceded, the preponderance of the evidence weighs against finding that the Veteran's respiratory disability is related to his military service. The Veteran has two diagnoses of respiratory disorders, including non-small cell lung cancer of the right lower lobe and chronic obstructive pulmonary disease. Therefore, the first element of service connection requiring a diagnosis is met. It is not in dispute that the Veteran's military service included a tour of duty in the Republic of Vietnam during his period of service from March to July 1968. The Veteran's military personnel record indicates he served aboard the USS Biddle, anchored in Da Nang harbor, and is presumed to have been exposed to herbicide agents. See Procopio v. Wilkie, 913 F.3d 1371 (2019); 38 U.S.C. § 1116A. His exposure to asbestos has also been confirmed. Therefore, the evidence demonstrates the second element of an in-service event is met. As to final element required to establish service connection, the Veteran has been provided several VA examinations addressing his respiratory conditions and a possible nexus relationship with service. VA examiners have opinions in March 2017, July 2017, and April 2020. Prior to the Board's March 2020 remand, the medical opinions of record did not consider whether the Veteran's herbicide exposure may have caused any of his respiratory conditions. An April 2020 VA examiner concluded the Veteran's lung cancer and COPD were less likely than not related to his military service, including presumed exposure to herbicide agents and asbestos. The examiner opined that the Veteran's extensive history of smoking two packs of cigarettes a day for 40 years most likely caused the Veteran's COPD and lung cancer. He reasoned, "numerous medical articles and literatures establish that cigarette smoking is the most common cause of both conditions." The examiner notes the medical evidence does not sufficiently demonstrate the Veteran's exposure to herbicide agents and asbestos directly caused his conditions and instead points to the intercurrent cause of heavy smoking. Further, the July 2017 examiner opined that the Veteran's respiratory conditions are not related to his asbestos exposure (which caused pleural plaques, which are service-connected). The examiner explains that pleural plaques can cause restrictive patterns in pulmonary function tests (PFT) but not obstructive lung disease. The Veteran's total lung capacity was reported as normal with obstruction only, therefore he does not have pulmonary disability due to his service-connected disability resulting from asbestos exposure. The examiner also notes the Veteran does not have any abnormalities indicating a separate respiratory condition due to asbestos exposure. The examiner concludes the Veteran's respiratory conditions are instead due to his long-standing chronic smoking. The Board finds the VA examiners' opinions to be highly probative and affords them significant weight. The conclusions are accompanied by explanations that contain clear conclusions with supporting medical data addressing the Veteran's contentions, and is based on an accurate medical history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Taken together, several VA examiners have opined that the Veteran's respiratory condition is less likely as not related to an in-service injury, event, or disease, including asbestos and herbicide agent exposure, and the Board has given the cumulative medical evidence probative weight. The Veteran's post-service treatment records show the Veteran did not have a diagnosis or disability until 2011, several decades following his separation from service. The Veteran's separation examination and STRs are silent for symptoms related to the lungs and chest, or shortness of breath or cough. The Board notes that the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). While the Veteran is competent to report experiencing observable symptoms, he is not competent to provide a diagnosis in this case or determine that the symptoms were manifestations of in-service exposure. The issue is medically complex, as it requires medical knowledge of human anatomy, physiology, and diagnostic testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials 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 Board gives more probative weight to the cumulative medical evidence and finds a nexus between the Veteran's condition and his military service has not been established. As the criteria for service connection has not been met, the claim for must be denied. The benefit of the doubt doctrine is not for application as there is no contradictory medical evidence favoring a nexus, thus the evidence weighs against the claim. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.N. Chapman, 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.