Citation Nr: 21041060 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 13-30 934 DATE: July 8, 2021 ORDER Service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD) and bronchitis, to include as due to herbicide agent exposure, is denied. FINDING OF FACT The preponderance of the evidence is against finding that Veteran's respiratory condition began during active service, or is otherwise related to an in-service injury or disease, to include as due to herbicide agent exposure. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder, to include COPD and bronchitis, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Army from November 1964 to November 1967, including service in the Republic of Vietnam for which he was awarded a Bronze Star, a Purple Heart, and two Combat Infantryman Badges. This matter was most recently before the Board in January 2021. The Board conceded that the Veteran was presumed to have been exposed to herbicide agents during service. The Board remanded the claim in order to obtain VA and private treatment records and to obtain an addendum opinion regarding the nature and etiology of Veteran's respiratory disorders to determine whether they were due to either in-service Agent Orange exposure or to his in-service gunshot wound. The directed development has since been completed and the Board is satisfied that there has been substantial compliance with the remand directives. The Veteran asserts that his current respiratory disorders, to include COPD and bronchitis, either had their onset during his active duty service or are otherwise due to his active duty service, to include his presumed exposure to herbicide agents. Specifically, he asserts in his June 2012 Notice of Disagreement (NOD) that he believes that Agent Orange weakened his immune system thereby making him susceptible to chronic obstructive pulmonary disease. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R.§ 3.303. Service connection requires competent evidence showing: (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 (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). In addition, service connection may also be established under 38 C.F.R. § 3.303(b), where a symptom of a chronic disease is noted in service without diagnosis in service or within one year from service, but chronicity is established by continuity of symptomatology after service. This is an alternative way to establish service connection for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). In addition, service connection can be established based on herbicide exposure. 38 C.F.R. § 3.307(a)(6). A veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam is presumed to have been exposed to herbicides and the veteran is entitled to a presumption of service connection for certain diseases listed under 38 C.F.R. § 3.309(e). At the outset, the Board recognizes the Veteran's honorable service in the Republic of Vietnam. As a result of this service, he is presumed to have been exposed to herbicide agents, such as Agent Orange, in service. See 38 C.F.R. § 3.307 (a)(6). However, the Veteran's respiratory disorders (COPD and bronchitis) are not diseases listed under 38 C.F.R. § 3.309(e), and, as such, service connection cannot be established on a presumptive bases, meaning that the Veteran must proffer direct evidence of how his respiratory condition was the result of his military service, to include any herbicide exposure therein. The Veteran's November 1964 enlistment physical noted that his lungs and chest were normal. The November 1964 Report of Medical History notes a history of mumps, shortness of breath, ear, nose, or throat trouble, and cramps in the legs. Service treatment records (STRs) document a gunshot wound to Veteran's left lower chest/abdomen in October 1965. No notations were made during the October 1965 examination after the gunshot wound indicating any respiratory issues. STRs from November 1965 indicate that Veteran sought treatment for a sore throat, tightness in his chest, and a runny nose. In April 1967, Veteran sought treatment for a sore throat. Upon examination, slight redness in his throat was observed, but his lungs and chest were noted as negative. These are the only references to any type of respiratory treatment being sought during service. On a medical history survey completed in conjunction with the separation physical in September 1967 the Veteran did not complain about any medical issues, to include any respiratory disorders. The Veteran's September 1967 separation physical found his lungs and chest to be normal. Private medical treatment records indicate the Veteran was treated for bronchitis as early as June 2006. Available VA treatment records indicate the Veteran reported that he was a current smoker in November 2010, specifically that he quit smoking cigarettes in approximately 2003 but still smoked cigars occasionally. In December 2010, a VA treatment note shows a diagnosis of mild COPD and concluded that it was likely due to a history of smoking cigarettes. In May 2011, the Veteran continued to report smoking cigars. In January 2012, the Veteran reported to a VA treatment provider that he had never used tobacco, and then in February 2013, he reported smoking one pack per day though he quit 20 years ago (approximately 1993). In October 2013, the Veteran submitted an article dated April 2010 and entitled "COPD Mortality Elevated in Vietnam Veterans Exposed to Herbicides." The article refers to a study that found among Vietnam Veterans from the Army Chemical Corps, after normalizing for tobacco use, the risk of excess mortality was significantly higher for the Vietnam Veterans than for non-Vietnam Veterans in developing non-cancerous respiratory disorders, including COPD. However, no medical opinion has been submitted to explain how the studies specifically pertain to the facts and circumstances of the Veteran's case. The Veteran was afforded a VA examination in August 2015 and was diagnosed with COPD and bronchitis, noting its presence for the last 10 to 15 years. The examiner opined the Veteran's respiratory disorders were unlikely related to his military service but that it was not out of the realm of possibility that his respiratory disorders were due to environmental exposures. In a October 2019 addendum opinion, a VA examiner opined that, based on a review of records, the preponderance of documentation favors COPD and bronchitis being caused by or secondary to long term cigarette smoking and that these conditions were less likely due to any in-svc herbicide exposure. This examiner indicated that the article submitted by the Veteran was considered but did not provide a rationale as to how that evidence was considered in forming their medical opinion. The Board found these two opinions to be inadequate to address the question before the Board and thus remanded the claim so that an addition military; In March 2021, a VA examiner opined that Veteran's respiratory condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness, including exposure to herbicides or Agent Orange. The examiner noted that there is no evidence of a chronic respiratory condition while in service, no notations of respiratory issues at separation, and no diagnosis of COPD or chronic bronchitis until in or around 2010. Additionally, the examiner noted that is no evidence in the medical literature to suggest remote exposure to Agent Orange decades earlier would cause chronic bronchitis or COPD. They indicated that the impact of any environmental exposure would, more likely than not, manifest at the time of such exposure or proximate to it. The examiner opined that the Veteran's approximately 20 pack-year smoking history was the most likely cause of his chronic bronchitis and ultimate COPD. Concerning Veteran's claim that Agent Orange compromised his immune system, the examiner noted that there is no documentation in the literature to suggest a broad impact on the immune system leading to chronic bronchitis and COPD decades later. They noted that the Veteran does not have a known immunodeficiency and certainly not one that has been attributed to Agent Orange. Regarding whether Veteran's gunshot wound residuals included his respiratory condition, the examiner opined that it is also less likely than not (less than 50 percent probability) that the Veteran's current COPD and chronic bronchitis was due to the gunshot wound he received during service. The examiner indicated there is no evidence of respiratory compromise due to the gunshot wound. There is no evidence of significant residuals of the gunshot wound at separation, including respiratory conditions. The Board finds that evidence is insufficient to show that the Veteran's respiratory condition occurred during or was otherwise caused by his active service, to include his exposure to herbicide. First, Veteran's private treatment records show that the earliest record of treatment for bronchitis occurred in 2006 (39 years after discharge). STRs show no instances of respiratory illnesses, including bronchitis, other than two reports of cold-like symptoms on two separate occasions. Though Veteran was injured by a gunshot wound, this injury appears based on a diagram in his STRs to have been in his lower abdomen. A medical examination after this injury did not indicate any respiratory issues, nor did the Veteran note any at this exam or his separation exam. Second, the Board finds the VA examiner's opinion to be highly probative. The opinion was based on a review of the claims file, including post-service treatment records and examination records of the Veteran, and the opinion is consistent with other evidence of record. Moreover, the examiner provided adequate rationale for all opinions and considered Veteran's claims and proffered evidence specifically. Accordingly, the VA examiner's opinion is entitled to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). Significantly, there is no competent medical opinion of record linking the Veteran's respiratory condition to service or herbicide exposure. Finally, the VA opinion is consistent with a study by the National Academy of Sciences (NAS), which shows "inadequate or insufficient evidence of association" between herbicide exposure and respiratory disorders (wheeze or asthma, COPD, and farmer's lung). See Nat'l Acad. of Sci., Inst. of Med., Veterans & Agent Orange: Update 2018 (the 11th edition). (Continued on the next page) Therefore, given that there is insufficient evidence to show a causal relationship between the present disability and Veteran's service, to include exposure to herbicide agents, entitlement to service connection for a respiratory disorder, to include COPD and bronchitis, is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jennifer M. Narvaez, 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.