Citation Nr: 21040058 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 20-06 901 DATE: July 2, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is granted. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. COPD was not noted at entrance into service and the evidence does not clearly and unmistakably demonstrate that the Veteran's COPD existed prior to service and was not aggravated thereby. 2. The preponderance of the evidence indicates that the Veteran's COPD was caused by exposure to herbicide agents and/or asbestos during active duty service. 3. The preponderance of the evidence shows that the Veteran's service-connected disabilities precludes him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 2. The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from July 1964 to January 1968, including service in the Republic of Vietnam. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a videoconference hearing before the undersigned; a transcript of that hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) The Veteran contends that his current COPD was caused by his presumed in-service exposure to herbicide agents and/or his claimed in-service exposure to asbestos. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). It is presumed that a veteran was exposed to herbicide agents if the veteran served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975). 38 U.S.C. § 1116(f). There is a list of herbicide-agent-associated diseases that VA presumes are connected to service if the veteran was exposed to herbicide agents (including Agent Orange) even if there is no record of the disease during service. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). These diseases include ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft tissue sarcoma. When no preexisting injury or disease is noted upon entry into service, the Veteran is presumed to have been sound upon entry. 38 U.S.C. §§ 1111, 1132, 1137; 38 C.F.R. § 3.304(b). The burden then falls on the government to rebut the presumption of soundness by finding clear and unmistakable evidence that the Veteran's injury or disease was both pre-existing and not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Turning to the evidence, the Veteran's Air Force personnel records indicate that he was stationed in the Republic of Vietnam from August 1966 to August 1967. There is no evidence of complaints, diagnosis, or treatment of a respiratory ailment in service. In his January 1968 separation report of medical history, the Veteran reported dizziness or fainting spells and shortness of breath. In the accompanying medical examination, the physician found the Veteran's lungs and chest to be normal but noted that the Veteran reported "shortness of breath on occasion, smokes 1.5 package of cigarettes daily." An August 2001 VA treatment record states that the Veteran had COPD and that he smoked cigarettes until January 2001, and that he had a history of pneumonia and possible asbestosis. The Veteran filed his claim for service connection for COPD in February 2018. He stated that he began having lung problems while he was on active duty and currently has many complications with his lungs. He said that while in Vietnam he worked near a building which was under construction and where asbestos was used for insulation. 2018 VA treatment records show that the Veteran continued to be diagnosed with COPD. In a March 2018 Statement in Support of Claim, the Veteran said that he was exposed to asbestos while stationed at Tan Sunuit, Vietnam, near Saigon in 1966 and 1967. He said that he lived and worked near buildings which were under construction and where asbestos was being used as insulation. The Veteran also said that as an electrician, he worked on the flight line and that he worked around the wheels of airplanes where asbestos was used as a fire retardant for braking systems. He said that he smoked cigarettes in the military and that he quit about 10 years before writing this statement. The Veteran underwent an examination for respiratory conditions in May 2018 and a disability benefits questionnaire (DBQ) was prepared. The examiner diagnosed COPD and no other lung conditions. The Veteran said that he was exposed to Agent Orange during his service carrying items containing the herbicide. He also said that he was exposed to asbestos while working on aircraft during his service. The Veteran said that his shortness of breath onset in 1966 while in Vietnam. The Veteran said that he did not seek medical care after separation from service. The Veteran's current symptoms include shortness of breath and he requires outpatient oxygen therapy. A medical opinion was prepared with the May 2018 DBQ. The medical opinion stated that it was less likely than not that the Veteran's COPD was caused by or incurred during active duty service because the shortness of breath in service was acute, without any documented medical treatment and there is no evidence of chronicity of care. The examiner opined that the condition clearly and unmistakably existed prior to service and it is clear and unmistakable that it was not aggravated by service because the "veteran had clear and unmistakable evidence of shortness of breath prior to military service and there is no evidence of permanent aggravation of this condition during his service." In his June 2018 Notice of Disagreement, the Veteran said that he never had or complained of shortness of breath before enlisting in the military. He wrote that he believes that his exposure to asbestos during active duty service caused his present COPD. The Veteran testified before the Board in March 2021. He said that during his service he was required to wade in water where Agent Orange had been sprayed and that the wind would blow Agent Orange from the perimeter into his living area. Concerning asbestos, the Veteran said that he worked on parts of airplanes which were covered in asbestos. The Veteran stated that he was also exposed to asbestos after service while working at a paper mill, but he said that he was feeling the effects of lung impairment before his post-service exposure. The Veteran said that he had no respiratory problems before service but that he had a "big problem" after service. The Veteran said that he is treated for COPD by VA and that his condition is worsening. He also testified that a treating physician told him at one point that it was at least as likely as not that his exposure to herbicide agents and/or asbestos caused his current COPD. Before turning to the criteria for service connection, the presumption of soundness must be addressed. As the Veteran's COPD was not noted on entry, the presumption of soundness applies. 38 C.F.R. § 3.304(b). The May 2018 medical opinion concluded that the Veteran clearly and unmistakably had COPD before he enlisted and that it is clear and unmistakable that the disability was not aggravated beyond its natural progression during service. However, the medical opinion did not address the Veteran's contrary lay statements in June 2018 and his testimony before the Board in March 2021. The presence of clear and unmistakable evidence sufficient to rebut the presumption of soundness is a legal determination, not a medical one; and the clear and unmistakable standard is "onerous." Laposky v. Brown, 4 Vet. App. 331, 334 (1993). The evidence is not clear and unmistakable in this case and therefore the presumption of soundness is not rebutted. Concerning the elements of service connection, the Veteran has a current diagnosis of COPD. The Veteran served in the Republic of Vietnam and therefore it is presumed that he was exposed to herbicide agents. The Veteran has stated that he was exposed to asbestos while working on airplane brake systems. His Military Occupational Specialty was Aircraft Electrical Mechanic. His statements are competent and credible and consistent with the duties of an aircraft electrical mechanic; therefore, the evidence indicates that the Veteran was exposed to asbestos during his active duty service. The first two criteria for service connection have been met. Saunders at 1361. COPD is not among the diseases subject to presumption as listed in 38 C.F.R. § 3.309(e). However, when service connection cannot be granted on a presumptive basis, the Veteran may still establish service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). There is conflicting medical evidence as to whether the Veteran's COPD was caused by his exposure to herbicide agents and asbestos. The May 2018 medical opinion that the Veteran's COPD is less likely than not caused by or related to his service holds little probative value because it does not address the Veteran's reports of shortness of breath at the time of his separation and does not discuss his exposure to herbicide agents or asbestos. Supporting a positive opinion, the Veteran testified that a physician told him that his COPD was at least as likely as not caused by either his exposure to herbicide agents or his exposure to asbestos. Significantly, a layperson is competent to report a contemporaneous medical diagnosis or opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). This opinion is entitled to probative weight as it is consistent with the other evidence of record and the Veteran's statements as to respiratory symptoms in and since service. Thus, the preponderance of the evidence indicates that the Veteran's COPD was caused by his exposure to herbicide agents and/or asbestos in service and therefore service connection is warranted. 2. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU) On February 28, 2018, the Veteran filed a claim for TDIU. A TDIU may be assigned where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. A total disability rating for compensation purposes may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a). An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For the period since filing the claim for TDIU on February 28, 2018, the Veteran has been service-connected for PTSD and tinnitus, and the present decision grants service connection for COPD. He has met the schedular criteria under 38 C.F.R. § 4.16(a) for this period because he has had one disability rated 40 percent or more (PTSD) and a combined disability rating of 70 percent or more. Concerning the PTSD, a May 2017 examination for PTSD noted the following symptoms: depressed mood, anxiety, chronic sleep impairment, mild memory loss such as forgetting names directions or recent events, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a work-like setting, impaired impulse control such as unprovoked irritability with periods of violence. A March 2018 examination stated that the Veteran appeared to be cheerful and sincere but he reported problems managing his anger. The March 2018 examiner also noted that the Veteran had been responsible for fourteen alcohol-related motor vehicle accidents and listed symptoms of depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. In June 2018 correspondence, the Veteran disputed the March 2018 examination report and stated that his symptoms were more severe than that report indicated. Concerning tinnitus, the May 2017 examination report stated that the Veteran's tinnitus had an impact on his daily activities and/or ability to work, but did not provide information beyond that. As to COPD, the May 2018 DBQ for Respiratory Conditions stated that the Veteran required outpatient oxygen therapy and concluded that the Veteran would have "difficulty w occupational tasks that require increased physical activity due to associated shortness of breath." In March 2021, the Veteran testified that he last worked in 2017 as a delivery truck driver and that his employer terminated the employment because the Veteran's COPD required him to take rest periods between deliveries. The evidence indicates that the Veteran will be unable to perform manual work due to his service-connected COPD and will have difficulty working with people due to his PTSD and tinnitus. Given the Veteran's high school education and work experience in maintenance (1968-2003) and driving a delivery truck (until 2017), the evidence of his functional impairment indicates that his service-connected disabilities cause him to be unable to obtain or maintain substantially gainful employment consistent with his educational and occupational history. Therefore, entitlement to TDIU is warranted. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.