Citation Nr: 21030085 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 08-17 181 DATE: May 17, 2021 ORDER Entitlement to service connection for a respiratory disorder (other than service-connected lung cancer and left pleural plaques) is denied. FINDINGS OF FACT 1. In an October 2018 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for adenocarcinoma lung cancer based on the Veteran's presumed in-service exposure to an herbicide agent. 2. The Veteran used tobacco products during service and afterward. 3. The Veteran's current respiratory disorder (other than service-connected lung cancer and left pleural plaques) was not shown as chronic in service, bronchiectasis did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; the respiratory disorder is attributable to smoking; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder (other than lung cancer and left pleural plaques) are not met. 38 U.S.C. §§ 1103, 1110, 1112, 1113, 1116, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.300 (a), 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from June 1969 to December 1978. This case comes to the Board of Veterans' Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) decision dated in May 2007. The Veteran testified before the undersigned Veterans Law Judge at an April 2010 hearing; a transcript of the hearing is of record. This case was previously remanded to the AOJ in January 2011 and June 2012, for additional development, and was subsequently returned to the Board. During the pendency of the appeal, service connection has been granted for adenocarcinoma lung cancer, and left pleural plaques. Therefore, the remaining issue on appeal has been characterized as listed on the first page of this decision. 1. Service connection for a respiratory disorder (other than left pleural plaques and lung cancer) The Veteran contends that he incurred a chronic respiratory disorder, to include bronchitis, in service, and that he was treated for bronchitis on a few occasions in service. See April 2010 Board hearing. He testified that his first bronchial attack was in service, and he had occasional episodes of bronchitis ever since. In his May 2007 notice of disagreement, he stated that he was given a throat culture during service, and was given antibiotics for his throat problems, and contended that this was the start of his bronchitis problems. He asserts that bronchitis has been on and off since his second enlistment in the Navy. See his August 2009 statement. The Veteran's spouse has stated that since they were married in late 1973, he had numerous bouts of severe bronchitis, and a chronic constant cough. His first severe bronchial problem was in February 1975, he had bronchitis once a year until 1978, and was treated for this condition in service. See her January 2011 statement. On VA examination in March 2012, the Veteran reported that he had bronchitis a number of times during service and after he got out, starting in 1974. He stated that he would get a sore throat a couple of times a year, which would then go to his chest, which he was told was bronchitis. He was given antibiotics and his symptoms would resolve. He added that between these episodes of bronchitis, his breathing was fine. He reported that during service, he was an electrician's mate and served on an old World War II destroyer for close to 2.5 years. His post-service occupation was an electrician. The Veteran reported that, overall, his lung symptoms had improved significantly since he quit smoking in 2009. He stated that he rarely had a cough and, while he had some mild shortness of breath with exertion, this had improved since he quit smoking. He added that he required no medications or treatments for his lungs and experienced no incapacitating episodes The question for the Board is whether the Veteran has a current respiratory disorder (other than the already service-connected lung cancer and left pleural plaques) that began during service or is at least as likely as not related to an in-service injury, event, or disease. 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 elements required to establish service connection are: (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 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). The Veteran has a current diagnosis of bronchiectasis as evidenced by the March 2012 VA examination. Bronchiectasis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Bronchiectasis is defined as chronic dilatation of the bronchi marked by fetid breath and paroxysmal coughing, with the expectoration of mucopurulent matter. See Dorland's Illustrated Medical Dictionary, 32nd ed., 2012, at 252). Bronchitis is defined as inflammation of a bronchus or bronchi; there are both acute and chronic varieties. Symptoms usually include fever, coughing and expectoration. Chronic forms may involve secondary changes to lung tissue. Id. However, bronchiectasis was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. VA and private treatment records show the Veteran was not diagnosed with bronchiectasis until June 2007, decades after his separation from service and decades outside of the applicable presumptive period. The evidence reflects that the Veteran has been diagnosed with other respiratory disorders, to include chronic obstructive pulmonary disease (COPD), emphysema, episodes of bronchitis, and pulmonary nodules, and has also been diagnosed with tobacco use disorder. See March 2012 VA examination, August 2006 VA outpatient treatment record. While the Veteran and his spouse are competent to report that he experienced intermittent symptoms of lung infections and coughing since service, they are not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of bronchitis as they have not demonstrated the necessary medical expertise. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which establishes that these symptoms are instead attributable to COPD, emphysema, and bronchiectasis due to tobacco use. See March 2012 VA examination. Further, VA and private treatment records attributed the symptoms to COPD. For a claim, as here, received by VA after June 9, 1998, service connection is expressly precluded for any disability related to chronic tobacco use (smoking). See 38 U.S.C. § 1103; 38 C.F.R. § 3.300. On VA examination in October 2018, the examiner diagnosed multifocal malignancy primary right lung carcinoma with metaplastic adenopathy, and opined that it was at least as likely as not related to Agent Orange exposure in service. Respiratory cancer (cancer of the lung, bronchus, larynx, or trachea) is a disease associated with exposure to certain herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Service connection has already been established for lung cancer based on the Veteran's presumed in-service exposure to an herbicide agent. However, COPD, emphysema, bronchitis, bronchiectasis and pulmonary nodules are not conditions subject to presumptive service connection based on exposure to an herbicide agent. 38 C.F.R. § 3.309 (e). Service connection for a respiratory disorder (other than service-connected lung cancer and left pleural plaques) may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's respiratory disorder and an in-service injury, event or disease. 38 U.S.C. §§ 1103, 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.300, 3.303. Although the Veteran and his wife have reported that he was treated for bronchitis in service, service treatment records are negative for such treatment, and attempts to obtain additional service treatment records have been unavailing. In January 2021, the AOJ advised the Veteran that additional service treatment records are unavailable. Service treatment records are negative for complaints, treatment, or diagnosis of a respiratory disorder. Chest X-ray studies in May 1973 and November 1978 were negative. On discharge medical examination in November 1978, his lungs and chest were clinically normal. The first post-service evidence of a respiratory disorder is dated in 1999. Private medical records from Dr. M. dated in July 1999 reflect a diagnosis of bronchitis and tobacco abuse. Private medical records from OSF St. Anthony Medical Center dated in March 2002 reflect that the Veteran was treated in the emergency room after a motor vehicle accident. On admission, he reported that he smoked two packs of cigarettes per day. A chest computed tomography (CT) scan showed bibasilar hypoaeration posteriorly, and a chest X-ray study showed minimal bibasilar atelectasis. The discharge diagnoses included rib fractures and bilateral atelectasis. Atelectasis is defined as incomplete expansion of a lung or a portion of a lung. See Dorland's Illustrated Medical Dictionary, 32nd ed., 2012, at 171). An August 2006 VA outpatient treatment record reflects that the Veteran reported that he smoked one pack of cigarettes a day for 40 years. He was diagnosed with tobacco use disorder. A June 2007 VA CT scan showed bilateral basilar pulmonary subsegmental atelectasis and mild bronchiectasis. A March 2008 chest X-ray study showed that the lungs were somewhat hyperinflated, suggestive of underlying COPD, and there was either subsegmental atelectasis or scarring in the left costophrenic angle. A November 2009 treatment note reflects that the Veteran was diagnosed with acute bronchitis, likely viral, and tobacco dependency. It was noted that he had at least 42-84 pack years of tobacco use. A December 2009 VA outpatient treatment record reflects that the physician suspected that the Veteran had COPD, based on a 2008 PFT and his at least 40-pack-year history of tobacco use. Private medical records reflect that the Veteran was diagnosed with right lung cancer in September 2018. A September 2018 private chest CT showed right lung carcinoma and emphysema. An October 2018 Respiratory Conditions Disability Benefits Questionnaire (DBQ) completed by a private physician, Dr. K., and submitted by the Veteran, reflects that he was diagnosed with malignant neoplasm of the right lung. Dr. K. indicated that he had COPD, but lung cancer was the primary diagnosis. On VA examination in March 2012, the examiner opined that the Veteran's COPD/emphysema, bronchiectasis, and pulmonary nodules are not at least as likely as not related to an in-service injury, event, or disease, including reported bronchitis in service. The rationale was that there was no evidence that the Veteran was seen or evaluated for any bronchitis or respiratory condition during service, and on separation examination in 1978, there was no mention of any lung condition, and the clinical evaluation of the Veteran's chest and lungs was noted to be normal. The examiner noted that the Veteran's current lung examination was benign, with no wheezes, rhonchi, or rales. The Veteran had normal respirations and the examiner commented that he found no abnormalities on physical examination. The examiner indicated that the Veteran had COPD for which emphysema was his subtype; therefore, these were the same conditions for him. Although the examiner related left pleural plaques to asbestos exposure in service, he did not relate the other current lung conditions to such exposure. He indicated that the Veteran did not have evidence of fibrosis/asbestosis. The examiner added that he saw no evidence of "bronchitis" as this is a general term that can denote acute or chronic inflammation of the lungs, and the Veteran did not meet such criteria. The examiner stated that he saw no evidence in the documented records or per his discussion with the Veteran that he had any increased frequency or severity of lung infections during service, and indicated that a couple of upper respiratory infections a year was normal and, given the Veteran's smoking history, was to be expected. The examiner opined that the Veteran's COPD/emphysema was caused by the Veteran's long-standing smoking, as such was a known complication of smoking, and it was not associated with his previous acute bronchitis episodes or asbestos exposure and, therefore, was not caused by nor related to his military service. He added that the evidence also did not support a finding that this condition was first manifested during service, as the Veteran was noted to have a normal lung examination upon separation from service, and the Veteran's description of his symptoms during service did not support a finding that this condition was first manifested during service. The examiner opined that the Veteran's bronchiectasis was also likely related to his smoking, as this was a known association. He commented that bronchiectasis could be associated with frequent infections; however, the objective evidence and the Veteran's testimony did not support his claim and there was no noted lung condition upon separation from service. The examiner added that bronchiectasis was not associated with asbestos exposure. Therefore, he opined that the Veteran's bronchiectasis was less likely than not related to his military service. As regards the pulmonary nodules, the examiner commented that these were incidentally asymptomatic findings on CT scan. He added that the pulmonary nodules were stable, small, unchanged, and not contributing in any way to any symptoms or PFT abnormalities. He opined that the Veteran's pulmonary nodules were less likely than not due to his military service. The rationale was that nodules are variable in etiology, but are typically due to previous fungal infections and could be caused by benign lung tumors among various other etiologies, but were not caused by asbestos exposure. The examiner stated that, as the Veteran's pulmonary nodules had been stable for years on repeat CT scans, they were felt to be benign and no further diagnostic evaluation was warranted. He added that, as these were incidental findings causing no symptoms, it was unlikely that these were caused by his brief time in the military; rather, these were far more likely to have developed during exposures in the other 55 years of his life. The October 2018 VA examination related the Veteran's current lung cancer to service, but did not link the other current respiratory disorders to service. The Veteran believes his other current respiratory disorders, including bronchitis, are related to an in-service injury, event, or disease. Again, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body, pathology, and interpretation of complicated diagnostic medical testing. 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 medical evidence, including the March 2012 and October 2018 VA examinations, and VA and private medical records. There is no competent evidence linking a current chronic respiratory disorder (other than the already service-connected adenocarcinoma lung cancer and left pleural plaques) with service or showing that it became manifest during service. To the extent smoking had its onset in service, service connection is prohibited based on the effects of tobacco products. See 38 U.S.C. § 1103; 38 C.F.R. § 3.300. In sum, the preponderance of the evidence, including the March 2012 medical opinion, is against the claim, particularly the nexus element. Thus, there is no doubt to be resolved, and service connection is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. L. Wasser, 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.