Citation Nr: 21040508 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 10-06 536 DATE: July 5, 2021 ORDER Entitlement to service connection for a lung disability, claimed as pneumonia, is denied. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to herbicide exposure, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a lung disability, claimed as pneumonia, began during active service, and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The objective medical evidence does not show the Veteran's COPD to be etiologically related to service, to include as secondary to exposure to an herbicide agent, to include Agent Orange, and no presumption of service connection based on exposure or otherwise is applicable. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lung disability, claimed as pneumonia, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for COPD have not been met, nor are they presumed to be. 38 U.S.C. §§ 1110, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1971 to August 1974. The Veteran died in November 2014. The appellant is the surviving spouse of the Veteran. The Board has remanded this case for additional development in April 2013, March 2014, October 2020, and March 2021. The matter has now returned to the Board for appellate review. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires competent evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after separation when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). 1. Entitlement to service connection for a lung disability, claimed as pneumonia The appellant seeks service connection for a lung disability, claiming that the Veteran had pneumonia during his active military service. Turning to the record, the Veteran's service treatment records show that the Veteran was treated for several bouts of upper respiratory infections and an instance of tonsillitis during service. In June 2013, the Veteran was afforded a VA examination to determine the nature and etiology of his claimed lung disability. The examiner noted a diagnosis of COPD. The Veteran reported that he had pneumonia while in active service, but that it resolved with treatment. Diagnostic testing was negative for any active pulmonary disease. In July 2020, after a review of the Veteran's file, a VA examiner determined that the Veteran's pneumonia and/or bronchitis was less likely than not incurred in or caused by the Veteran's active military service, and in particular, that is was not due to the wheezing and/or bronchitis the Veteran experienced in-service. In support of this conclusion, the examiner explained that the Veteran had acute, self-limiting pneumonia/bronchitis in the 1970s. The examiner found that the Veteran was appropriately treated with a normal chest x-ray at the time. Therefore, the examiner determined that there was no evidence of chronicity or residuals of the acute issues treated during active service. Moreover, the examiner found that there was no evidence of a chronic respiratory condition. Accordingly, the examiner found that there were no medical objective findings in all available records to establish a nexus between pneumonia and/or bronchitis in 1974 and the claimed acute pneumonia 40 years later. In April 2021, another VA addendum opinion was obtained. The examiner determined that any pneumonia in-service was treated and resolved. Moreover, the examiner found that any pneumonia was a self-limited phenomenon and did not cause pneumonia later in life. In light of the evidence as discussed above, the Board finds that service connection for a lung disability, to include pneumonia, is not warranted. Specifically, while the Veteran's service treatment records indicate that he was treated for upper respiratory infections during his active service, multiple VA examiners have explained that any pneumonia and/or bronchitis during service was acute in nature and resolved. Moreover, as noted in the July 2020 VA opinion, there is no record of any complaints of any residuals of any pneumonia and/or bronchitis from the Veteran's active military service. The Board acknowledges that the appellant has asserted that the Veteran's lung disability, to include pneumonia, is directly related to the Veteran's active service. However, while the appellant is competent to report the Veteran's (1) symptoms observable to a layperson, e.g., breathing trouble; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, she is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, the appellant's lay assertions of medical diagnosis or etiology are afforded little probative value and cannot constitute evidence upon which to grant the claim for service connection. Latham v. Brown, 7 Vet. App. 359, 365 (1995). Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a respiratory disorder to include pneumonia, and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107 (b) is not for application. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) The appellant contends that during the Veteran's active military service, the Veteran was exposed to an herbicide agent, to include Agent Orange, and that this exposure resulted in the Veteran's COPD. A veteran, who during active military, naval or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during his or her service to a herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C.§ 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). The following diseases will be deemed service connected if the requirements of 38 C.F.R. § 3.307 (a) are met, even if there is no record of such disease during service: AL amyloidosis, chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus); Hodgkin's disease; chronic lymphocytic leukemia (CLL); multiple myeloma; Non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease. 38 C.F.R. § 3.309 (e). Turning to the record, while the Veteran's service treatment records reveal treatment for acute respiratory problems, such as upper respiratory infections, they are silent as to any complaint or treatment for any chronic respiratory disorder, to include COPD. In June 2013, the Veteran was afforded a VA examination in connection with his claim. At the time of the examination, a diagnosis of COPD was rendered. The Veteran reported that he had a 20 years history of smoking cigarettes. Diagnostic testing revealed no active pulmonary diseases. In a November 2014 opinion, the examiner opined that the Veteran's COPD was less likely than not related to his active military service. The examiner noted that shortness of breath could not be separated from COPD because it is the primary. and often only, symptom of COPD. In December 2020, another VA medical opinion was procured. The examiner opined that the Veteran's COPD was less likely than not incurred in or caused by his active military service. The examiner noted that the Veteran's service treatment records contained treatments for acute bronchitis and viral pleuritic chest pain. However, the examiner explained that these conditions were acute in nature and they resolved prior to the Veteran's separation. Further, the examiner noted that there was no indication of a respiratory disorder at the time of the Veteran's separation. Ultimately, the examiner found that the COPD was not related to or caused by any acute upper respiratory disorder, to include bronchitis, pleurisy, or pneumonia, 30 years prior to diagnosis. Lastly, in an April 2021 addendum opinion, the VA examiner explained that the Veteran's COPD was due to the Veteran's habit of smoking two packs per day for over 20 years. Therefore, it was less likely than not related to any chemical or nerve agent exposure. As stated earlier in this decision, a veteran who served on active duty in Vietnam during the Vietnam era is presumed to have been exposed to a herbicide agent. Therefore, specific diseases will be deemed service connected. 38 U.S.C.§ 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). However, COPD is not among these listed diseases and conditions. VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994). See also Notice, 61 Fed. Reg. 41, 442-49 (1996); Diseases Not Associated with Exposure to Certain Herbicide Agents, 68 Fed. Reg. 27,630 (May 20, 2003); Health Outcomes Not Associated with Exposure to Certain Herbicide Agents, 72 FR 32395-01 (June 12, 2007). Additionally, the Secretary has clarified that a presumption of service connection based on exposure to herbicide agents used in the Republic of Vietnam during the Vietnam Era is not warranted for respiratory disorders, among other conditions. See Notice, 72 Fed. Reg. 32,395 -32,407 (Jun.12, 2007); Notice, 74 Fed. Reg. 21,258 - 21260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). Although the appellant has claimed that the Veteran was exposed to an herbicide, to included Agent Orange, the Veteran's military personnel records reveal that the Veteran did not serve in the Republic of Vietnam. Moreover, as a matter of law, a presumption of service connection for COPD, as secondary to exposure to a herbicide agent, based on the foregoing is not available, as it is not included in the regulation's list of diseases and conditions receiving that presumption. 38 C.F.R. § 3.307 (a)(6)(iii). However, the Board must also consider entitlement to service connection on alternative bases. COPD is not included in those diseases considered chronic under 38 C.F.R. § 3.309 (a). Consequently, as a matter of law, the presumption of service connection for COPD as a chronic disease is not available to the Veteran. Based on the evidence as discussed above, the Board also finds that service connection for COPD on a direct basis is not warranted. Specifically, the VA examiners have consistently explained that acute respiratory maladies, such as an upper respiratory infection, do not later lead to COPD. Rather, it has also been consistently noted that the Veteran had a long history of smoking cigarettes, which at least one examiner indicated could then lead to COPD. The Board acknowledges that the appellant has claimed that the Veteran's COPD is directly related to his active service. However, while the appellant is competent to report (1) symptoms observable to a layperson, e.g., shortness of breath; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson,581 F.3d at 1313. Consequently, the appellant's lay assertions of medical diagnosis or etiology are afforded little probative value and cannot constitute evidence upon which to grant the claim for service connection. Latham, 7 Vet. App. at 365. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claims, the doctrine is not applicable, and the claims must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Scanlan, 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.