Citation Nr: 21028406 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 15-09 461 DATE: May 11, 2021 ORDER Entitlement to service connection for a respiratory disability, claimed as bronchitis and emphysema, is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for cerebrovascular accident is remanded. Entitlement to service connection for erectile dysfunction is remanded. FINDING OF FACT The preponderance of the evidence is against finding that a respiratory disability began during active service, or is otherwise related to an in-service event, injury, or disease, to include as due to presumed exposure to herbicide agents or reported asbestos exposure. CONCLUSION OF LAW The criteria for service connection for a respiratory disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1965 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a hearing in August 2018. A transcript is of record. In June 2019, the Board remanded the issues on appeal for additional development. The issues of an increased rating for hearing loss was also remanded. Following a July 2020 supplemental statement of the case (SSOC), the Veteran opted that issue into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a January 2021 VA Form 10182, Decision Review Request: Board Appeal, identifying the July 2020 SSOC. Therefore, that issue will not be addressed herein. 1. Entitlement to service connection for a respiratory disability, claimed as bronchitis and emphysema The Veteran contends that his respiratory disability, claimed as bronchitis and pulmonary emphysema, is related to reported asbestos exposure or his presumed herbicide agent exposure during his service aboard the USS Guadalupe near the Republic of Vietnam. The question for the Board is whether the Veteran has a current pulmonary disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran's service treatment records indicate that he was treated for a chest cold in March 1969. Despite one instance of an upper respiratory infection in service, the evidence does not otherwise indicate that a pulmonary disability had onset during the Veteran's period of active service. On the clinical examination for separation from service in October 1969, the Veteran's lungs and chest were evaluated as normal. On VA examination in August 2013, the Veteran reported paroxysmal dyspnea, chronic bronchitis, and emphysema. He claimed that his respiratory complaints were due to a history of asbestos exposure during active duty. Physical examination of the chest was within normal limits. Exercise tolerance on a treadmill was noted as exceptionally good, despite the Veteran's report of dyspnea only during periods of being overheated. Chest x-rays demonstrated areas of bullous emphysema, but no interstitial lung disease of pulmonary fibrosis or other abnormalities consistent with asbestos exposure. Pulmonary function studies reviewed by the examiner that were conducted in July 2013 and August 2013 showed normal limits of FVC and FEV1. The examiner further noted that the Veteran was a chronic cigarette smoker for more than 40 years. The examiner opined that there was no evidence of a service-connected respiratory disease either from exposure to Agent Orange or asbestos products. He explained the Veteran did not have a diagnosis of chronic bronchitis. He further explained that the Veteran's paroxysmal dyspnea and bullous emphysema were most likely caused by or the result of the Veteran's cigarette smoking habit. The examiner concluded the Veteran's respiratory condition was not service-connected The Veteran reported at his hearing that after his service he had breathing problems. The Board has considered whether presumptive service connection should be granted based upon continuity of symptomatology since service. See 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Emphysema is not a chronic condition under 38 C.F.R. § 3.309. As such, presumptive service connection based upon continuity of symptomatology since service is not warranted. As noted above, service connection may be established on a presumptive basis for a Veteran who has been exposed to an herbicide agent during active military service for specified diseases. The Board remanded this appeal in June 2019 for the RO to conduct development and determine whether the Veteran's had qualifying service in Vietnam by means of his service aboard the USS Guadalupe, such that he could be presumed to have had herbicide agent exposure in service. In February 2020, the RO determined exposure to herbicide agents is conceded based on the Veteran's nautical service in the off shore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. See 3.307(a)(6)(iv); Procopio v. Wilkie, 913 F.3d 1370 (Fed. Cir. 2019) (en banc). Although the Veteran is presumed to have been exposed to herbicide agents during active service, emphysema is not listed among the specified diseases and is not a recognized presumptive condition related to herbicide exposure. 38 C.F.R. § 3.309 (e). Thus, service connection on a presumptive basis for the Veteran's respiratory disorder as a result of herbicide agent exposure is not warranted. Notwithstanding the foregoing presumption provisions, the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). See Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). In this case, no medical professional has ever related any current pulmonary disability, to include emphysema, to the Veteran's active duty service, to include his presumed exposure to an herbicide agent. Instead, the August 2013 VA examiner attributed the Veteran's emphysema on x-rays to a 40-year history of smoking. Thus, the Board concludes that although the Veteran has a current diagnosis of emphysema, and evidence shows one instance of a chest cold in service, as well as presumed exposure to an herbicide agent, the preponderance of the evidence weighs against finding that the Veteran's pulmonary disability began during service or is otherwise related to an in-service injury, event, or disease. Although the Veteran believes his pulmonary disability is related to his presumed exposure to herbicide agent, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires expert medical knowledge. 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). The Board gives more probative weight to the objective medical opinion of the August 2013 VA examiner. As none of the competent evidence of record indicates that the Veteran's emphysema either began during or is otherwise due to his period of active service, the Veteran's claim for service connection for a respiratory disability must be denied. As the preponderance of the evidence is against the Veteran's claim, the benefit-of- the-doubt doctrine is not applicable. 38 U.S.C. § 5107 (b); see also Gilbert, 1 Vet. App. at 55 (1990). REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The Board finds that a VA examination is needed to address hypertension. The evidence shows that the Veteran has hypertension and that he is presumed to have been exposed to herbicide agents, including Agent Orange, during service. Accordingly, the first and second prongs of McLendon v. Nicholson, 20 Vet. App. 79 (2006) have been met. The June 2019 Board remand instructed that if the Veteran was considered to have had qualifying service in the country of Vietnam, the RO was to undertake any appropriate development to include obtaining further opinions if warranted. The Board specifically indicated that the National Academy of Sciences (NAS) had concluded, however, that there is sufficient evidence of an association between exposure to Agent Orange and hypertension. See Agent Orange: Update 11 (2018), NAS. The RO determined the Veteran had herbicide agent exposure in service, but did not conduct development as to the possibility of a causal relationship between the Veteran's hypertension and his presumed exposure to herbicide agents. As the RO did not substantially comply with the June 2019 Board directives, that medical development is still required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to service connection for cerebrovascular accident is remanded. As the Veteran asserts his cerebrovascular accident is related to exposure to herbicide agents, and the appeal is being remanded for other development, an opinion as to whether his cerebrovascular accident is due to such exposure would be helpful. 3. Entitlement to service connection for erectile dysfunction is remanded. Finally, the Veteran asserts that he developed erectile dysfunction as the result of the medication prescribed by the VA to treat his high blood pressure and heart disease after his stroke. Because a decision on the remanded issue of service connection for hypertension could significantly impact a decision on the issues of service connection for erectile dysfunction, the issues are inextricably intertwined. The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician as to whether the Veteran's hypertension is related to service. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including presumed in-service exposure to herbicide agents while in Vietnam. The examiner should provide an opinion as to whether it at least as likely as not that hypertension (1) began during active service, (2) manifested within one-year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. A complete rationale must be provided. The examiner is advised that a negative opinion related to herbicide agent exposure cannot be solely based on the absence of a disability from VA's list of diseases associated with exposure to certain herbicide agents found in 38 C.F.R. § 3.309 (e). The examiner is further advised that the National Academy of Sciences Institute of Medicine (NAS) recently upgraded hypertension to the "sufficient" category from "limited or suggestive," indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide agent exposure. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the erectile dysfunction and the cerebrovascular accident are at least as likely as not related to service, to include exposure to certain herbicide agents therein. A rationale must be provided. If either the hypertension or cerebrovascular accident (also claimed as an ischemic stroke) is found to be of service origin, provide an opinion as to whether the current erectile dysfunction is proximately due to, or aggravated beyond its natural progression, by either these disorders. A rationale must be provided. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Lauritzen, 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.