Citation Nr: 21030105 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 14-41 269A DATE: May 17, 2021 ORDER Service connection for a respiratory condition, to include sarcoidosis and chronic obstructive pulmonary disease (COPD), is denied. FINDING OF FACT There is no probative medical evidence that indicates the Veteran's current sarcoidosis or COPD conditions were incurred in service, to include as due to herbicidal exposure; nor that the Veteran's sarcoidosis was diagnosed within the presumptive period after discharge. CONCLUSION OF LAW The criteria to establish service connection for a respiratory condition have not been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1965 to July 1968. The case was remanded in October 2018 for evidentiary development and for a new medical examination and opinion. All actions ordered by the remand have been accomplished. The Veteran contends his current respiratory conditions of sarcoidosis and COPD were caused by military service when he was exposed to herbicidal agents while stationed in the Republic of Vietnam during the Vietnam War. Because the claimed conditions are not presumptively linked to herbicidal agent exposure and there is no competent medical evidence of a connection between the conditions and his service, nor evidence that the Veteran's sarcoidosis was diagnosed within the presumptive period after discharge, the appeal will be denied. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). "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) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). With regards to the second and third elements of service connection, any veteran who, during active military service, served in the Republic of Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicidal agents. 38 C.F.R. §§ 3.307, 3.309. Military personnel records indicate the Veteran served in the Republic of Vietnam from December 1966 to October 1967. His exposure to herbicidal agents is presumed. The list of diseases that are presumed associated with herbicidal agent exposure includes respiratory cancers, but does not include sarcoidosis or COPD. The Veteran's conditions do not qualify for presumptive service connection. However, where the evidence does not warrant presumptive service connection, a veteran is not precluded from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain disorders listed as "chronic" in 38 C.F.R. § 3.309 (a) and 38 C.F.R. § 3.303 (b) are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sarcoidosis is a "chronic disease" listed under 38 C.F.R. § 3.309 (a). Therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as sarcoidosis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In deciding an 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 favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for a respiratory condition, to include sarcoidosis and COPD Service treatment records (STRs) do not indicate any complaints, diagnoses, or treatments for sarcoidosis or COPD symptomatology during service. The Veteran's July 1965 report of medical history at induction indicates he denied asthma, shortness of breath, and chronic cough. His clinical respiratory and pulmonary evaluations at induction were normal. In February 1968 the Veteran complained of a sore throat and coughing. He was assessed with pharyngitis with strep throat and given penicillin. There are no other complaints, diagnoses, or treatments for respiratory or pulmonary symptoms in service. The Veteran's July 1968 clinical respiratory and pulmonary evaluations at release from active duty were normal. Private medical records indicate the Veteran has been diagnosed with sarcoidosis and COPD since at least March 1984. Records also indicate that at the time of the Veteran's 1984 evaluations and diagnoses, he was working at a cement mill, with possible exposure to cement dust, and had a two-pack-per-day smoking history for the previous 20 years. In September 1984 the Veteran's private physician noted that the Veteran's COPD was likely from fibrosis and sarcoidosis, and that the Veteran's smoking habit may have caused his lung scarring that then led to his COPD. The record otherwise indicates the Veteran's long-term smoking habit up until 1984, as well as his exposure to cement dust. These include records dated in March 1984 (noting a "36-pack year history of smoking"); January 2006 (noting Veteran smoked "two packs of cigarettes per day for about 20 years before stopping in 1984... he also worked in the cement manufacturing business all of his life, initially with a great deal of dust exposure and then later on he was more in the office although he still had some significant dust exposure"); and January 2012 ("remote tobacco"). In March 1998 a private physician diagnosed the Veteran with severe COPD from prior smoking and stage 4 sarcoidosis. In January 2002 a private physician reviewed the Veteran's chest x-ray and indicated the Veteran demonstrated stage 4 "healed" sarcoidosis causing scarring and COPD. Subsequent medical records indicate the Veteran quit smoking in 1984. At an October 2013 VA medical examination for respiratory conditions, the examiner reviewed the Veteran's medical records and noted a diagnosis of asthma with an unknown date of diagnosis, and diagnoses of sarcoidosis and COPD as of 1983. The examiner also noted the Veteran had pulmonary (lung) scarring. The examiner did not provide an opinion on causation of these diagnoses. At an August 2019 VA medical examination for respiratory conditions, the examiner reviewed the Veteran's medical records and noted diagnoses of COPD as of 1983, sarcoidosis as of 1984, and silicosis as of 2012. The examiner opined the Veteran's respiratory conditions were not incurred in service because the Veteran's STRs did not indicate complaints indicative of a chronic pulmonary condition and that his chest x-ray at separation was normal; that the Veteran's post-service medical history included high risk factors such as smoking and cement dust exposure; and that exposure to herbicidal agents was not associated with the development of sarcoidosis, COPD, or silicosis. At a November 2019 VA medical examination for respiratory conditions, the examiner diagnosed the Veteran with COPD and sarcoidosis. The Veteran reported he was diagnosed with both COPD and sarcoidosis after his 1984 lung biopsy, and that he was told the lung scarring caused the sarcoidosis. The examiner, a nurse practitioner, provided three separate opinions. In one opinion she stated that the Veteran's respiratory conditions were incurred in service because the Veteran had service in Vietnam and therefore was presumed to have been exposed to herbicidal agents. In the same opinion she stated she had "no way of knowing" the pharmacological effects of herbicidal agent exposure on the respiratory system. In a separate opinion, she reiterated that the Veteran's conditions were incurred in service because the Veteran served in Vietnam and was presumed to have been exposed to herbicidal agents, but that she could not find any "official" documents that show the effect of herbicidal agent exposure on the development of the Veteran's claimed respiratory conditions. In a third opinion, the same examiner opined the Veteran's sarcoidosis was at least as likely as not incurred in service because the Veteran served in Vietnam, was presumed to have been exposed to herbicidal agents, and the lung scarring was a result of exposure to herbicidal agents that led to sarcoidosis and COPD. These opinions are inadequate to resolve the appeal. They do not provide a fact-based rationale for the issue on appeal. In fact, the examiner admits to having no supporting rationale for her conclusions that the Veteran's claimed respiratory conditions were due to exposure to herbicidal agents. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on incomplete or inaccurate factual premises are not probative). In a September 2020 addendum opinion, a medical doctor reviewed the Veteran's claims file and prior VA medical opinions. The examiner opined the previous examiner "clearly erred" in provided a positive opinion because readily available medical research did not indicate a causal link between exposure to herbicidal agents and either COPD or sarcoidosis. The examiner noted that it was "accepted medical knowledge" that exposure to herbicidal agents did not cause COPD nor sarcoidosis. The examiner explained that smoking and asthma were the two most common risk factors for developing COPD, and that the Veteran had a 20-year history of smoking. Furthermore, sarcoidosis was an autoimmune condition and was not linked to exposure to herbicidal agents. Therefore, the examiner opined the Veteran's claimed conditions of sarcoidosis and COPD were less likely than not incurred in service, to include due to exposure to herbicidal agents. The preponderance of the evidence is against finding service connection for sarcoidosis or COPD. There is no probative medical evidence that indicates that either of the Veteran's current respiratory conditions were incurred in service, to include as due to exposure to herbicidal agents, nor that his sarcoidosis was diagnosed within the presumptive period after discharge. The Veteran has continuously asserted throughout the appeal that his current respiratory conditions are a result of his presumed exposure to herbicidal agents during service. The Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis. See Layno, 6 Vet. App. 465, 469; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, while the Veteran has attempted to establish a nexus through his own lay assertions, the Veteran is not competent to offer opinions as to the etiology of his current respiratory disabilities. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Sarcoidosis and COPD require specialized training for determinations as to diagnosis and causation, and are therefore not susceptible to lay opinions on etiology. Thus, the Veteran is not competent to render such nexus opinions or attempt to present lay assertions to establish a nexus between his current diagnoses and their relationship to his presumed exposure to herbicidal agents. Since neither of the Veteran's sarcoidosis and COPD diagnoses were incurred in service, and since his sarcoidosis was not diagnosed within the presumptive period after discharge, the claim for service connection for the claimed respiratory conditions is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Anwar, Attorney-Advisor 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.