Citation Nr: 21028673 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-32 025 DATE: May 11, 2021 ORDER Entitlement to service connection for a respiratory condition, to include chronic obstructive pulmonary disease (COPD) and pleural effusions and fibrosis, is denied. Entitlement to service connection for residuals of malaria is denied. Entitlement to service connection for a back disability is denied. Entitlement to service connection for hypertension is denied. FINDINGS OF FACT 1. The evidence preponderates against a finding that the Veteran's respiratory condition was incurred in service or is otherwise related to an in-service event, injury, or disease. 2. The evidence preponderates against a finding that the Veteran has residuals of malaria which were incurred in service or are otherwise related to an in-service event, injury, or disease. 3. The evidence preponderates against a finding that the Veteran's back condition was incurred in service or is otherwise related to an in-service event, injury, or disease; manifested to a compensable degree within a year of service; or, was noted during service with continuity of the same symptomatology since separation. 4. The evidence preponderates against a finding that the Veteran's hypertension was incurred in service or is otherwise related to an in-service event, injury, or disease; manifested to a compensable degree within a year of service; or, was noted during service with continuity of the same symptomatology since separation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a respiratory condition, to include COPD and pleural effusions and fibrosis, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.300, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for residuals of malaria are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 3. The criteria for entitlement to service connection for a back disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.300, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1968 to March 1971. This matter is on appeal from an October 2014 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in July 2020 when it was remanded for further development. The Board has recharacterized the Veteran's claims for service connection for COPD and pleural effusions and fibrosis as a claim for a respiratory condition, to include COPD and pleural effusions and fibrosis, to encompass the Veteran's various diagnoses. Clemons v. Shinseki, 23 Vet. App. 1 (2009). SERVICE CONNECTION Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131. To establish service connection for an acquired psychiatric disorder, the evidence must show: (1) the existence of a current disability; (2) an 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. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Connecting the current disability to service may be accomplished through statutory presumption or through affirmative evidence that shows inception or aggravation during service or that otherwise indicates a direct relationship between service and the current disability. 38 C.F.R. § 3.303(a), (d). The statutory presumptions and VA regulations implementing them are intended to allow service connection for certain diseases when the evidence might otherwise not indicate service connection is warranted. See 38 C.F.R. § 3.303(d). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis and hypertension, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. An alternative method of establishing incurrence or aggravation and a nexus to service is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. The theory of continuity of symptomatology can be used only in cases involving those diseases explicitly recognized as chronic under 38 C.F.R. § 3.309(a), such as degenerative disc disease and hypertension. In this case, military personnel records reflect that the Veteran served in the Republic of Vietnam in service. A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Thus, the Veteran is presumed to have been exposed to herbicide agents in service. However, service connection is not presumed, as the Veteran's conditions are not enumerated under 38 C.F.R. § 3.309(e). The evidence of record therefore must establish a direct relationship between the Veteran's current disability and the presumed exposure to herbicide agents. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. For example, lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing observable symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Respiratory Condition The Veteran contends that he is entitled to service connection for a respiratory condition, to include chronic obstructive pulmonary disease (COPD) and pleural effusions with fibrosis. In this case, the Veteran was provided with a VA examination in September 2020 in which the examiner noted a diagnosis of COPD. Thus, the first element of Shedden for a respiratory condition is satisfied. However, upon review of the record, the Board finds that the evidence preponderates against a finding that the Veteran's respiratory condition was incurred in service or is otherwise related to an in-service event, injury, or disease, to include herbicide exposure. During the September 2020 VA examination, the examiner opined that the Veteran's condition is less likely than not incurred in or caused by service and that the Veteran's COPD is secondary to smoking. She noted that the etiology of COPD is well documented in medical literature and that review of records notes that smoking cessation has been strongly encouraged by numerous providers. She also noted that current medical literature reveals no evidence that herbicide agent exposure causes COPD. She noted that the Veteran does not have chronic pleural effusion and fibrosis because he had evidence of pleural effusion and fibrosis in the 1990s that resolved. She also cited a reference to a report which noted that the most important risk factor for many non-cancerous respiratory disorders is the inhalation of cigarette smoke. In a separate examination report, the examiner extensively discussed the Veteran's medical and occupational history. As the rationale provided by the September 2020 VA examiner reflects thorough consideration of the Veteran's medical history and is supported by medical literature, the Board assigns a high degree of probative value to this opinion. The Board acknowledges the July 2014 VA Form 21-4138, Statement in Support of Claim, in which the Veteran stated that he began to smoke cigarettes in service. However, for claims filed after June 9, 1998, such as in this case, service connection may not be granted on the basis that a disability resulted from disease or injury attributable to the use of tobacco products during active service. 38 U.S.C. § 1103(a); 38 C.F.R. § 3.300. Thus, insofar as the Veteran claims his use of tobacco is itself a cause of his current disability stemming from tobacco use during service, service connection cannot be granted due to these provisions. As such, the Board finds that the preponderance of the evidence is against the Veteran's claim. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Residuals of Malaria The Veteran contends that he is entitled to service connection for residuals of malaria. The Veteran was provided with a VA examination in August 2020 in which the examiner noted that malaria testing performed as part of the examination process was negative and that there was no evidence of prior malaria infection or residuals. The Veteran reported that while in service "the doctor told me ... I had a touch of malaria while I was in Vietnam." He reported that he began sweating and becoming weak, went to sick bay, and began ingesting salt pills. In a separate examination report, the examiner noted that the December 1968 in-service treatment of a sore throat, headache, weakness, and a cough occurred prior to Vietnam service, when the Veteran claimed that he became infected. She stated that there is no evidence of malaria in service and no evidence of testing for malaria in service. She noted that the Veteran reported that he was given salt pills but "[t]hat is not how malaria was treated in the 1970s or today" and that the Veteran's account is "not consistent with malaria." As the rationale provided by the examiner reflects thorough consideration of the Veteran's medical history, the Board assigns a high degree of probative value to this opinion. The Board acknowledges that while the Veteran is not competent to self-diagnose malaria, the Veteran is competent to report that he was told by a medical professional in service that he had malaria. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, in this case, the Board finds that the Veteran's lay report of what was purportedly said decades ago, filtered as it is through a layman's sensibilities, is too unreliable by itself to establish service connection for the reasons explained by the August 2020 examiner. As such, the Board does not assign significant probative weight to the Veteran's lay report of being told he had malaria while in service. The Board also acknowledges the provisions of 38 C.F.R. § 3.309(b) which provide for presumptive service connection for malaria as a result of tropical service. However, in the absence of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the record does not contain competent evidence of an in-service infection nor current signs or symptoms of such residuals, these provisions are inapplicable. Accordingly, the Board finds that the evidence preponderates against a finding that the Veteran has residuals of malaria which were incurred in service or are otherwise related to an in-service event, injury, or disease. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 3. Back Disability The Veteran contends that he is entitled to service connection for a back condition. In August 2020, the Veteran was provided with a VA examination in which the examiner noted diagnoses of degenerative arthritis of the spine and intervertebral disc syndrome. Thus, the first element of Shedden is satisfied. Further, the Veteran reported in a July 2014 VA Form 21-4138, Statement in Support of Claim, that he moved large crates in service with no back support and had to jump out of trucks. The Board notes that service personnel records do not contain contemporaneous evidence which corroborate this statement. However, the Board finds no reason to doubt the credibility of the Veteran's statement, and this report is consistent with the Veteran's circumstances of service. Thus, the second element of Shedden is satisfied, as well. However, upon review of the record, the Board finds that the evidence preponderates against a finding that the Veteran's back disability was incurred in service or is otherwise related to an in-service event, injury, or disease. During the August 2020 VA examination, the examiner opined that the condition was less likely than not incurred in or caused by the claimed in-service injury, event, or disease. She noted no evidence of a back disability during service and noted that service treatment records reflect that the Veteran denied back pain at separation in 1971. She noted that the first evidence of back pain is in 2004 from treatment records which "clearly note acute onset" and note that the Veteran works as a farmer and does "significant manual labor." She noted that there is nothing to indicate the acute condition in 2004 nor the subsequent degenerative disc disease are secondary to military service. She stated that the Veteran served in the military for less than three years with no back injury or back pain and then performed a lifetime of manual labor tasks as a farmer in his civilian occupation, and this is the cause of his current back condition. In a separate examination report, the examiner discussed the Veteran's reports of lifting and carrying in service. As the rationale reflects thorough consideration of the Veteran's medical history and is well reasoned, the Board assigns a high degree of probative value to this opinion. The record contains no evidence which otherwise indicates that the Veteran's back disability was incurred in service or is etiologically related to an in-service event, injury, or disease. Further, the record does not contain evidence indicating that the disability manifested to a compensable degree within a year of service or was noted during service with continuity of the same symptomatology since separation. As such, the Board finds that the preponderance of the evidence is against the Veteran's claim. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 4. Hypertension The Veteran contends that he is entitled to service connection for hypertension. In October 2020, the Veteran was provided with a VA examination in which the examiner noted a diagnosis of hypertension. Thus, the first element of Shedden is satisfied. However, upon review of the record, the Board finds that the evidence preponderates against a finding that the Veteran's hypertension was incurred in or caused by service, to include the presumed exposure to herbicide agents. During the October 2020 VA examination, the examiner opined that the Veteran's hypertension was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He noted that the Veteran did not have high blood pressure in service and has a risk factor of smoking one pack of cigarettes per day. He noted that this type of high blood pressure, called primary (essential) hypertension, tends to develop gradually over many years. He noted that age is also a risk factor when using tobacco. He noted that not only does smoking or chewing tobacco immediately raise blood pressure temporary but that the chemicals in tobacco can damage the lining of the artery walls, which can cause the arteries to narrow and increase the risk of heart disease. Regarding the literature in the National Academy of Sciences (NAS) Institute of Medicine's Veterans and Agent Orange: Update 2010, he noted that the NAS did not identify any definitive causal links between herbicide agents and the disease and that at least two, hypertension and bladder cancer, have other risk factors besides herbicide agent exposure, to include age, diet, and tobacco use, that can contribute to their development. He also noted that members of the panel, in drawing their conclusions, relied heavily on studies of Army Chemical Corps members with known high occupational exposure that do not necessarily reflect the experience of most U.S. troops in Vietnam. In a separate examination report, he also noted that the Veteran's separation examination noted blood pressure of 120/80. As the rationale provided by the examiner reflects thorough consideration of the Veteran's medical history and the medical literature, the Board assigns a high degree of probative value to this opinion. Further, the record contains no evidence that the Veteran's hypertension manifested to a compensable degree within a year of service or was noted during service with continuity of the same symptomatology since separation. Moreover, as explained above, the applicable laws and regulations preclude the award of service connection insofar as the Veteran claims that his tobacco use during service is etiologically related to his current disability. 38 U.S.C. § 1103(a); 38 C.F.R. § 3.300. As such, the Board finds that the preponderance of the evidence is against the Veteran's claim. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A.M. CLARK Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. H. White, 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.