Citation Nr: 21039881 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 14-41 839 DATE: July 1, 2021 ORDER Entitlement to service connection for lung disorder, including chronic obstructive pulmonary disease (COPD), to include as secondary to a service-connected disability or as due to herbicide agent exposure, is denied. FINDING OF FACT The evidence is against a finding that the Veteran has a lung disorder that is secondary to a service-connected disability or is otherwise related to an in-service injury or disease, to include herbicide agent exposure. CONCLUSION OF LAW The criteria for service connection for a lung disorder have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1968 to October 1969, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the matter in June 2018, November 2019, September 2020, and March 2021 for additional development. It returns again for further appellate review. The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2015. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Service Connection for a Lung Disorder The Veteran has a current lung disorder, diagnosed as COPD upon VA examination in August 2019. Throughout the course of the appeal he has asserted various theories of entitlement, including that his COPD is related to in-service herbicide agent exposure, his service-connected hepatitis, or from a history of smoking related to his service-connected posttraumatic stress disorder (PTSD). Generally, to establish service connection, a claimant must show: (1) a present 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, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. VA has established certain rules and presumptions for chronic diseases. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service connection may also be presumed for certain diseases, including respiratory cancers (defined as including cancer of the lung, bronchus, larynx, or trache), if a veteran was exposed to an herbicide agent, including Agent Orange, during service, and the disease manifested to a degree of ten percent or more any time after service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A veteran who 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 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). As an initial matter, the record confirms the Veteran's service in the Republic of Vietnam during the Vietnam Era, and he is therefore presumed to have been exposed to herbicide agents. Review of the medical evidence of record, however, is against a finding that the Veteran has a respiratory cancer of any kind. Rather, treatment records note a diagnosis of COPD, which is not a disease that VA recognizes as related to exposure to herbicide agents. 38 C.F.R. § 3.309(e). Hence, entitlement to service connection for a respiratory disability due to herbicide agent exposure on a presumptive basis is not warranted. The Veteran's service treatment records (STRs) are silent for complaints, treatment, diagnosis, or management of any respiratory problem in service, despite his assertions during the appeal that his lung problems began in service. As the Veteran reported other ailments during service, and as respiratory problems are the type that a reasonable person would report while in the military with access to healthcare, if the Veteran was experiencing problems with his lungs during service the Board would expect that he would have reported these problems to medical professionals. During the October 1969 separation examination, evaluation of the lungs and chest was normal. In a corresponding report of medical history, the Veteran specifically denied having had asthma, shortness of breath, or a chronic cough. If a respiratory disorder was present during service, the Board would expect the Veteran would have responded "yes" when asked if he had such symptoms at separation because a reasonable person would have interpreted the question to include symptoms of a respiratory disorder. Moreover, the Veteran responded affirmatively when asked whether he had other conditions at separation and the Board would thus expect the Veteran to have also responded affirmatively to having symptoms indicative of a respiratory disorder. The Board finds the report of medical history at separation from service to be highly probative as it was done contemporaneous to service and for the purpose of identifying disability at that time. A respiratory disorder is not asserted or shown by medical evidence until approximately the mid-2000s, near in time to the Veteran's original service connection claim and many years after his separation from service, when he was diagnosed by a private physician. As a chronic respiratory disorder is not shown to have been present during service or in the first year after separation of service, and continuity of symptomatology leading to a diagnosis of such is not shown, in-service incurrence cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran's report of medical history at separation from service where he denied a history of any symptoms indicate of a respiratory disorder. The Board finds the report of medical history at separation from service to be more reliable than more recent assertions as it was done contemporaneous to service and for the purpose of identifying disability at that time. The Veteran's claim was first before the Board in June 2018 where it was remanded, in part, to obtain a VA examination to determine the nature and etiology of any current lung disability. The Board's remand instructions include the direction to determine whether the Veteran's current lung disability is related to herbicide agent exposure, service-connected posttraumatic stress disorder, and alcohol abuse associated with PTSD. Thereafter, the Veteran was afforded an August 2019 VA respiratory conditions examination, where COPD was diagnosed. The examiner opined that it is less likely than not that the Veteran's current COPD is proximately due to or has been aggravated beyond its natural progression by service-connected PTSD, explaining that while there is evidence in the medical community that PTSD-related alcohol abuse is linked to lung infections, such as pneumonia and acute respiratory distress syndrome, this evidence does not address any link to COPD, and the Veteran's claims folder is silent on any incidences of pneumonia or acute respiratory distress syndrome. A separate medical opinion also concluded that it is less likely than not that the Veteran's current lung disability is related to any incident of service, to include herbicide agent exposure. In support, the opinion states that a 2012 study ordered by the VA secretary showed no significant association between herbicide exposure and spirometry-determined COPD. As the Board noted in its second remand in November 2019, however, the above medical opinions do not directly address the relationship between the Veteran's service-connected PTSD and his COPD. Concerning the medical opinion that addresses herbicide agent exposure, the medical opinion was based solely on conclusions from medical literature and does not show that the reviewing clinician considered the specific facts of the Veteran's case. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (stating that statistical analysis can be a factor to consider when assessing whether the totality of the evidence is sufficient to establish service connection, but it cannot be the sole basis for such a determination). More generally, the medical opinions contained conclusions and facts specific to the Veteran's claim, but do not contain a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). In short, the medical opinions were a conclusion without an analysis that the Board could consider and weigh against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As such, the matter was remanded again for an addendum opinion to address whether the Veteran's diagnosed COPD may be linked to his presumed in-service exposure to tactical herbicides, or secondary to his service-connected PTSD with alcoholism. As the Veteran had also asserted a connection for his service-connected hepatitis C, an opinion as to the relationship between his COPD and that disability was also ordered. The addendum was provided in May 2020, where the examiner provided several opinions concluding that the Veteran's COPD was likely caused by his history of tobacco smoking, and was not caused by herbicide exposure or caused or aggravated by his service-connected PTSD or hepatitis C. More specifically regarding herbicide agent exposure, the examiner explained that such has not been medically or objectively linked to COPD, and there was no evidence in the Veteran's file to overlook the tremendous amount of medical research on this issue. The examiner explained similarly as to any link to hepatitis. With respect to the Veteran's alcohol abuse due to PTSD causing his COPD, such a correlation could not be objectively supported, the examiner stated, noting that billions of people without PTSD have abused alcohol rendering it purely presumptive to assume that the Veteran's predilection for alcohol use or abuse was solely or in part due to the PTSD. With that said, the examiner continued, the Veteran's submitted National Institute of Alcoholism article notes risk of "acute lung injury" such as pneumonia and other acute problems. None of this research, however, brings into light any new information showing the loss of elasticity and structural destruction needed for COPD, or the aggravation of COPD, occurs from drinking. This is completely speculative and not supported by any medical research or verifiable blinded peer reviewed studies, in contrast to COPD's assured connection to smoking, "supported by thousands upon thousands of independent, peer reviewed, objective studies." Thereafter, in June 2020 correspondence, the Veteran, through his representative, stated that his history of tobacco smoking was secondary to his service-connected PTSD, an assertion not discussed by the May 2020 examiner. The Board notes that, 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(a); 38 C.F.R. § 3.300(a). The term "tobacco products" means cigars, cigarettes, smokeless tobacco, pipe tobacco, and roll-your-own tobacco. 38 C.F.R. § 3.300(a). VA's General Counsel has also held that neither 38 U.S.C. § 1103(a) nor its implementing regulation at 38C.F.R. §3.300 bar a finding of secondary service connection for a disability related to use of tobacco products after service. VAOPGCPREC 6-03(69 Fed. Reg. 25178 (2004)). According to the VA General Counsel opinion, where secondary service connection for disability due to smoking is at issue, adjudicators must resolve: (1) whether the service-connected disability caused the Veteran to use tobacco products after service; (2) if so, whether the use of tobacco products as a result of the service-connected disability was a substantial factor in causing a secondary disability; and (3) whether the secondary disability would not have occurred but for the use of tobacco products caused by the service-connected disability. Id. If these questions are answered in the affirmative, the secondary disability may be service connected. Id. Here, the VA medical opinions of record at the time attributed the Veteran's COPD to his smoking history. Thus, as the issue is now whether his PTSD caused him to use tobacco products after service, the Board remanded the matter for an additional addendum again in September 2020, which was obtained in November 2020. The examiner opined that there is a great body of research in the medical community finding that PTSD does not cause tobacco use; rather, tobacco use is owing to chemical dependency on the tobacco itself and is not due to psychological issues. The examiner added that the Veteran's file does not support a connection between his PTSD diagnosis and tobacco use. In a December 2020 addendum, the examiner stated that the Veteran's use of tobacco after service can only be assumed, and that the file does not contain longstanding mental health treatment that might show a connection between the Veteran's PTSD and tobacco use. Based on the addendum, specifically, that the record was absent evidence that might document the Veteran's history of his tobacco use, the Board remanded the claim once again in March 2021. The Veteran was also asked to provide complete and return authorized release forms pertaining to any outstanding private treatment records dated to 2006, as the Veteran asserted treatment for his COPD prior to that date, as well as to provide a statement specifying when he began smoking cigarettes and the circumstance that led to his smoking. If additional evidence was added to the file specific to the Veteran's history of smoking which supports a potential link to PTSD, a new VA medical opinion was to be obtained by the RO. However, after the Board's requests were forward to the Veteran after its March 2021 remand, the record remains negative for any additional private treatment records dated prior to 2006, nor are there any additional statements regarding when he began smoking cigarettes and why. The Veteran, through his representative, stated specifically in an April 2021 correspondence that all of the relevant evidence is of record. As such, no additional VA medical opinion was necessary. For the above reasons, the Board finds the preponderance of the evidence is against the claim and service connection is denied. The Board finds the VA medical opinions regarding any relationship between the Veteran's COPD and either herbicide agent exposure or a service-connected disability, as a whole, to be highly probative as they were made by medical professionals with consideration of the specific facts in this case and after examination of the Veteran. There is also no medical opinion or competent and credible evidence in significant conflict with the VA medical opinions. While the Board acknowledges the additional treatise evidence recently submitted in April 2021 that discuss the possible connection between COPD and PTSD, this evidence provides no real conclusion that can be applied to this specific Veteran. Of particular note, the article submitted by the International Journal of COPD, "Chronic Obstructive Lung Disease and Posttraumatic Stress Disorder: Current Perspective", states specifically in its summary, that while there is some evidence that PTSD plays a role in the perception of COPD illness burden and subsequent illness management goals (e.g., adherence) and treatment response rates, and that this relationship may be mediated by tobacco as it is established that individuals suffering from PTSD have higher rates of tobacco abuse, "there remains a high degree of variability which limits the ability to infer the degree by which tobacco mediated the impact of PTSD or COPD outcomes." As noted by the most recent examiner's opinion, the Veteran's use of tobacco after service to self-treat his PTSD can only be assumed, as he has provided insufficient information as to when he began smoking and why. The Board has considered the Veteran's statements, to include his assertions that his COPD is related to his military service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., breathing difficulties; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinions rendered by trained medical professionals based on appropriate testing and reasonably drawn conclusions with supportive rationale. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.