Citation Nr: 21028339 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-10 111 DATE: May 11, 2021 ORDER Entitlement to service connection for emphysema/chronic obstructive pulmonary disease (COPD), is denied. FINDINGS OF FACT 1. The Veteran was not exposed to an herbicide agent while on active duty. 2. Emphysema/COPD did not have its inception during the Veteran's active service and the preponderance of the evidence establishes that the Veteran's post-service emphysema/COPD was attributable to his use of tobacco. CONCLUSION OF LAW The criteria for entitlement to service connection for emphysema/COPD have not been met. 38 U.S.C. §§ 1110, 1103, 5107; 38 C.F.R. §§ 3.102, 3.300, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from October 1966 to January 1971, including service in Korea and Thailand. He died in March 2020. The appellant in this matter is the Veteran's daughter who has been substituted as the claimant for purposes of processing these claims to completion. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which reopened a previously denied claim of service connection for emphysema/COPD, claimed as breathing problems due to smoking in service, and denied that claim on the merits. The Veteran's timely Notice of Disagreement (NOD) was received by VA in February 2015. In February 2016, the RO issued a Statement of the Case (SOC). In March 2016, the Veteran perfected a timely appeal via his submission of a VA Form 9. In January 2019 the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is a part of the record. In February 2019, the Board reopened the previously denied claim of entitlement to service connection for emphysema/COPD and remanded the underlying claim for further evidentiary development. Following the Veteran's March 2020 death, in September 2020, VA received the appellant's VA Form 21P-0847, Request for Substitution of Claimant upon Death of Claimant. In a December 2020 letter, the RO notified the appellant that VA had granted her request for substitution. In February 2021, the RO issued a Supplemental Statement of the Case (SSOC) and the appeal is now returned to the Board for further appellate proceedings. Service Connection During his lifetime, the Veteran contended that his emphysema/COPD was the result of his use of tobacco during active service. He testified that he had become a smoker in service after he was issued cigarettes and told to smoke them. See January 2019 Hearing Transcript, pages 2-4. The appellant contends that, in addition to the Veteran's tobacco use during active service, his respiratory disability, diagnosed as emphysema/COPD, was the result of his exposure to Agent Orange in Korea, Thailand, and Vietnam. See January 2021 Statement in Support of Claim. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. In general, to establish a right to compensation for a present 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, the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Notwithstanding the foregoing, for claims received by VA after June 9, 1998, a disability or death will not be considered service-connected on the basis that it resulted from injury or disease attributable to the veteran's use of tobacco products during service. 38 U.S.C. § 1103; 38 C.F.R. § 3.300. If a veteran was exposed to an herbicide agent such as Agent Orange during active military, naval, or air service, certain specifically enumerated diseases shall be service-connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113, 38 C.F.R. § 3.307(d), are also satisfied. Diseases associated with such exposure include cancer of the lung, but do not include emphysema/COPD. 38 C.F.R. § 3.309(e). VA's Secretary has determined that there is no positive association between exposure to herbicide agents and any other condition for which VA has not specifically determined a presumption of service connection is warranted. See e.g. Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20,308 (Apr. 11, 2014). The availability of presumptive service connection for certain specifically enumerated diseases, however, does not preclude service connection for other disabilities based on exposure to herbicide agents by establishing actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. Exposure to Herbicide Agents As an initial matter, the Board finds that the Veteran was not exposed to herbicide agents, including Agent Orange, while on active duty. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that such veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). A veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, 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. 38 C.F.R. § 3.307(a)(6)(iv). Effective January 1, 2020, the Blue Water Navy Vietnam Veterans Act of 2019 codified this regulatory presumption in statute, extending it to veterans who "served in or near the Korean Demilitarized Zone (DMZ), during the period beginning on September 1, 1967, and ending on August 31, 1971." Pub. L. No. 116-23, § 3(a), 133 Stat. 966, 969. VA's Compensation Service has issued information concerning the use of herbicides in Thailand during the Vietnam era. In a May 2010 bulletin, Compensation Service indicated that it has determined that there was significant use of herbicides on the fenced in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. A primary source for that information was the declassified Department of Defense (DOD) Report titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." Although DOD indicated that the herbicide use was commercial in nature, rather than tactical (such as Agent Orange), Compensation Service has determined that there was some evidence that herbicides of a tactical nature, or that of a "greater strength" commercial variant, were used. See also Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 177 (2016) ("VA Compensation Service has acknowledged that there is some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from Vietnam, or a commercial variant of much greater strength and with characteristics of tactical herbicides"). The majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts found or direct basis. However, this applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. With respect to the appellant's contentions that the Veteran was exposed to herbicide agents by virtue of service in Vietnam, the Board finds that the preponderance of the evidence is against such a finding. The Veteran's service personnel records do not contain any notations of service in the Republic of Vietnam. Records confirm that his MOS was Clerk Typist and he was stationed in Korea from April 1967 to October 1968 and in Thailand from April 1969 to April 1970, but do not note service in the Republic of Vietnam. The Board notes that the Veteran was the recipient of the Vietnam Service Medal and a Republic of Vietnam Campaign Medal, but neither is dispositive of service in the Republic of Vietnam. In May 2008, the service department responded that they were unable to determine whether or not the Veteran served in Vietnam. Although neither the service department nor the Veteran's personnel records document Vietnam service, the Veteran reported in a July 2009 Statement in Support of Claim, in the context of a stressor statement to support a claim of service connection for an acquired psychiatric disability, that he was once on an airplane that landed in Vietnam while en route to Thailand. The Veteran reported there was a rocket attack and he was not allowed off the plane. In July 2008 and September 2009 memorandums, formal findings were made that there was insufficient information to corroborate the reported stressful events (the Veteran landing in Vietnam en route to Thailand, and his plane was in a rocket attack). The Veteran did not respond to multiple requests for additional information. A September 2009 Rating Decision noted the Veteran's records showed he landed in Thailand on April 2, 1969, but the other records showed that there was no rocket attacks at that airbase seven days prior to that date and fifteen days after the Veteran arrived in Thailand. The September 2009 Rating Decision also noted that the Veteran was asked to provide more information about this event and did not. Based on the evidence of record, the Board concludes that there is insufficient evidence to support a finding that the Veteran served in the Republic of Vietnam. Thus, exposure to herbicide agents based on service in Vietnam is not established. With respect to the appellant's contentions that the Veteran was exposed to herbicide agents in Korea, the Board also finds that the preponderance of the evidence is against such a finding. The Veteran's personnel records reveal that he served with Headquarters, 8th Brigade, and the Eighth Army Engineers in Korea from April 1967 to October 1968. The Veteran's units, however, are not on the list of units identified by DoD or VA as having operated in an area in or near the Korean DMZ, nor does the appellant or Veteran contend otherwise. Likewise, the appellant has not asserted, and the evidence does not show, that her father operated in or near the Korean DMZ during the applicable period. 38 C.F.R. §§ 3.307 (a)(6)(iii), (iv). Rather, service personnel records establish that the Veteran was stationed in Seoul. Therefore, the Board finds that the legal presumption of exposure to an herbicide agent in Korea does not avail the Veteran. Additionally, there is no probative evidence that the Veteran was actually exposed to an herbicide agent during service in Korea. The Board finds that the appellant's general statement that her father was actually exposed to an herbicide agent during service in Korea is insufficient to support such a finding. 38 C.F.R. § 3.307 (a)(6)(i). The appellant has not been shown, nor had the Veteran been shown, to be competent to identify herbicide agents, including Agent Orange, by sight, touch, or any other of one's own senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also 38 C.F.R. § 3.159 (a)(2). A layperson's generalized assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010). Consequently, exposure to an herbicide agent while in Korea is not warranted on a facts found basis. With respect to the appellant's contentions that the Veteran was exposed to herbicide agents in Thailand, the Board finds that the preponderance of the evidence is against such a finding. The Veteran's personnel records reveal that he was stationed at Korat Royal Thai Air Base in Thailand from April 1969 to April 1970. Orders indicate that the Veteran flew from the United States to Bangkok. The Veteran's MOS was a clerk typist. The records do not show the Veteran worked along the perimeter of the base in Thailand, nor does the appellant or Veteran contend otherwise. Additionally, the Veteran's MOS does not support a contention that he would have been working along the perimeter of the base. Therefore, the Board cannot concede that the Veteran was exposed to an herbicide agent to include Agent Orange while he was stationed in Thailand. There is also no competent evidence that the Veteran was actually exposed to herbicide agents in Thailand. Again, the appellant's general statement that the Veteran was exposed to herbicide agents while in Thailand is insufficient to support such a finding. As noted above, neither the appellant nor the Veteran has been shown to be competent to identify herbicide agents, including Agent Orange, by sight, touch, or any other of one's own senses has not been shown to be competent to identify herbicide agents, including Agent Orange, by sight, touch, or any other of one's own senses. Layno, supra; see also 38 C.F.R. § 3.159 (a)(2). Further, a layperson's generalized assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service. Bardwell, supra. Consequently, exposure to an herbicide agent while in Thailand is not warranted on a facts found basis. Even assuming arguendo that the Veteran was indeed exposed to herbicide agents during active service, as discussed in greater detail below, the record contains no indication that the Veteran's emphysema/COPD was related to claimed herbicide agent exposure. Rather, the most probative evidence shows that the Veteran's emphysema/COPD was more likely than not caused by his use of tobacco. While the Veteran is competent to describe his symptoms or other matters within his personal observations, there is no evidence of record which indicates that he or the appellant is competent, whether by training or experience, to provide an etiological opinion with regards to his emphysema/COPD. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds the issue is medically complex, as the condition involves internal processes between different body systems not readily observable to a lay person. Considering this, the Board affords greater probative weight to the medical opinions of record on the question of diagnosis and etiology. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). For the reasons noted above the Board finds that the most probative evidence is against a finding that the Veteran was exposed to an herbicide agent, to include Agent Orange, while on active duty, or that his emphysema/COPD as the result of that claimed exposure. Therefore, service connection for emphysema/COPD based on exposure to an herbicide agent, to include Agent Orange is not warranted. Service connection for Emphysema/COPD For the following reasons, the Board finds that the most probative evidence establishes that the Veteran's emphysema/COPD did not have its inception during active duty and that his post-service emphysema/COPD was causally related to his tobacco use. As such, the preponderance of the evidence is against the award of entitlement to service connection. In pertinent part, the Veteran's in-service treatment records show that he was diagnosed as having acute bronchitis in July 1967. On follow up a few days later, resolving bronchitis was noted. Subsequent service treatment records are negative for complaints or findings of a chronic respiratory disability, to include emphysema/COPD. A February 1968 chest radiograph was normal, a December 1970 chest radiograph showed "chest normal" and an August 1970 chest radiograph was "negative." A July 1970 in-service dental report showed that the Veteran selected "no" to the question regarding whether he had lung disease (tuberculosis, etc.). The Veteran's December 1970 separation examination report notes that examination of the lungs and chest was essentially normal. In a January 1971 Statement of Medical Condition, the Veteran reported a change regarding his left knee, but made no complaints regarding the respiratory system. During the Veteran's January 2019 hearing, the Veteran testified that after the in-service episode of bronchitis, he continued to experience breathing problems. He testified his breathing problems in service were minor but thereafter became chronic. The Veteran was afforded a VA examination in October 2019. After examining the Veteran and reviewing the claims file, the VA examiner concluded that the etiology of the Veteran's COPD/emphysema was tobacco and marijuana use. The VA examiner cited evidence from the Mayo Clinic noting that the main cause of COPD/emphysema is tobacco and marijuana smoke. The examiner considered the in-service episode of bronchitis but concluded that it is less likely as not that the Veteran's current pulmonary disability was related to that episode. The VA examiner explained that the Veteran's service treatment records reflected that no chronic pulmonary disability developed as a result of that episode. There was no medically identified pulmonary disability during active duty, including any test result or clinical finding diagnostic of or representing the onset of emphysema/COPD/recurrent pneumonitis, or other lung or pulmonary pathology. The examiner considered the Veteran's recollections that he experienced minor ongoing breathing problems since the July 1967 episode of bronchitis which developed into more significant breathing problems in 1997 after which he was diagnosed as having emphysema. The VA examiner, however, explained that the medical documentation was not consistent with his history and that the Veteran had been noted in clinical settings to be a poor and inconsistent historian. In February 2021 a contract medical opinion was obtained. After reviewing the available records, the contract examiner concluded the etiology of the Veteran's COPD/emphysema was smoking, as smoking is known to be the main cause of such condition. The contract examiner also concluded the Veteran's pulmonary disability was not at least as likely as not related to the July 1967 episode of bronchitis. The contract examiner explained the bronchitis episode was acute and resolved as evidenced by the in-service treatment notes which showed the Veteran was diagnosed with resolving bronchitis and the rest of his service treatment notes showed no complaints of or additional diagnosis of pulmonary issues. After reviewing the record in its entirety, the Board concludes that the preponderance of the evidence is against the claim. The Board affords significant probative weight to the October 2019 and February 2021 opinions to the effect that the Veteran's emphysema/COPD was more likely than not a result of the Veteran's smoking. Both the VA examination and the contract opinion considered the Veteran's in-service history of bronchitis but, given the Veteran's history and clinical evidence, coupled with the applicable medical literature, they ultimately concluded that the most likely etiology of his emphysema/COPD was smoking. There is no competent opinion to the contrary. The Veteran did not contend that his breathing disabilities were not causally related to smoking. Rather, the Veteran contended that the U.S. Army was responsible for his smoking-induced COPD because he began smoking when they issued him cigarettes, he was told to smoke by his drill instructor, and he was told that he could take a smoke break or do push-ups instead. See e.g. March 2016 VA Form 9. Even assuming arguendo that the Veteran's emphysema/COPD was the result of in-service smoking, as opposed to post-service smoking, VA is precluded by statute from awarding compensation for any disability resulting from injury or disease attributable to the use of tobacco products "by [a] veteran during the veteran's service." 38 U.S.C. § 1103(a). 38 C.F.R. § 3.300. This was also addressed during the February 2016 informal conference with a Decision Review Officer (DRO). (Continued on the next page) The Board has considered the Veteran's lay contentions that he had breathing issues since service. Questions of credibility notwithstanding, the Veteran lacks the competency to attribute his symptoms to emphysema/COPD, as opposed to smoking or some other cause. Ultimately, the Board finds the medical of evidence of record to be more probative on the question of diagnosis and nexus, given the clinician's medical expertise. For the reasons noted above, the Board finds that the most probative evidence establishes that the Veteran's emphysema/COPD was the result of tobacco use. For these reasons, the preponderance of the evidence is against the claim of service connection for emphysema/COPD. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Penn, 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.