Citation Nr: 21041121 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 17-04 749 DATE: July 8, 2021 THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD). REMANDED Entitlement to service connection for COPD is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1969 to July 1971, including combat and overseas service in Vietnam. He is a recipient of the Bronze Star Medal with Valor Device. The Veteran appeals a July 2014 rating decision by the Agency of Original Jurisdiction (AOJ) continuing the denial of entitlement to service connection for COPD. This matter was last before the Board in December 2018 at which point the claim was reopened and subsequently remanded for further development. Although the Board regrets the further delay, we find an additional remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for COPD is remanded. The Veteran contends that he suffers from COPD as a result of exposure to herbicide agents (to include Agent Orange) in service. Alternatively, the Veteran contends that his COPD is due to his smoking, which was in turn due to his service-connected post-traumatic stress disorder (PTSD). Initially, the Board notes that there is a confirmed diagnosis of COPD with evidence of coughing noted in the service treatment records (STR). See August 2016 Dr. P.F. examination, January 1970 STR, and January 1971 STR. The Veteran has also submitted various scientific articles that he contends demonstrate a potential relationship between herbicide exposure and the development of respiratory conditions such as COPD. In the previous December 2018 decision, the Board remanded this matter in order to provide the Veteran with a VA examination and opinion to determine the nature and etiology of the Veteran's COPD. In pertinent part, the Board asked the examiner to consider the medical articles that the Veteran had submitted addressing the possible link between herbicide agent exposure and COPD. The Veteran was afforded such an in-person examination in November 2019 in which the VA examiner opined that the Veteran's COPD was not at least as likely as not due to Agent Orange exposure. In support of this opinion the examiner cited a past history of smoking and the fact that the Veteran was not diagnosed with COPD until 2008, many years after separation. The examiner then stated that there was no causal relationship between Agent Orange exposure and COPD. VA obtained an addendum opinion from a different VA examiner in July 2020. The July 2020 VA examiner similarly opined that the Veteran's COPD was not at least as likely as not due to Agent Orange exposure. The examiner offered largely the same rationale as the November 2019 examiner, but included citations to medical literature which detailed the known link between smoking and the development of COPD. Additionally, the examiner cited a lack of a diagnosis of COPD in service. The Board notes that neither the November 2019 nor the July 2020 VA examiner addressed the Veteran's submitted medical articles. Stegall, 11 Vet. App. 268, 271 (1998). The Veteran was then issued a supplemental statement of the case (SSOC) in July 2020 which continued to deny service connection for COPD. In December 2020, the Veteran's attorney submitted additional argument and medical evidence, and waived RO consideration of such. The Veteran's attorney argued that the two VA opinions were deficient on the grounds that they were conclusory, overlooked the cited medical literature, and only considered exposure to Agent Orange, as opposed to any herbicide agent as directed by the December 2018 Board remand directives. The private attorney also challenged the competency of the November 2019 VA examiner, stating she did not have expertise related to herbicide exposure and COPD specifically. The Veteran's attorney concluded by requesting a copy of the November 2019 VA examiner's curricula vitae. Also among these pieces of evidence was a private positive nexus opinion. The private examiner, Dr. E.G., indicated that no in-person examination was conducted, reasoning that one was not necessary as the examiner had access to the claims file and medical records. The private examiner described the Veteran as a "one time smoker, having quit smoking over 30 years ago." He also described the findings of medical research studies that observed a statistical correlation between Vietnam Veterans exposed to herbicide agents and the risk for developing chronic respiratory diseases. The examiner continued to describe multiple studies showing such a statistical correlation, but also cited findings of statistically non-significant "association between herbicide and spirometry-determined COPD." The examiner goes on to write that "it is not entirely clear how... the active ingredient in Agent Orange[] causes or contributes to COPD." A dense and highly technical speculation on the interplay between the chemical and its possible link to COPD follows. In conclusion the examiner stated that "based on the biological plausibility and mechanism by which exposure to herbicides can lead to pulmonary dysfunction, immune dysfunction and other adverse health outcomes, it is as likely as not that the COPD is directly caused by or aggravated by exposure to Agent Orange. The examiner also explained that because the Veteran had ceased smoking "many years before his diagnosis for COPD, his limited history of smoking was not a risk factor. The Board notes that the Veteran admitted to being a smoker for 25 years and only quit in 1999. See March 2008 Private treatment record. Therefore, the Board finds the December 2020 private examiner's characterization and timeline of the Veteran's smoking habits perplexing and contrary to the medical record. Additionally, the private opinion is contradictory in nature, at one point stating that the causation between the active ingredient in Agent Orange and COPD was unknown, but nevertheless opining that there was a causal link. Therefore, the Board finds that the private opinion is inadequate for determining the etiology of the Veteran's COPD. Finally, service connection for a tobacco-related disability alleged to be secondary to a disability that is not service-connected on the basis of being attributable to a Veteran's use of tobacco products during service may be warranted if the following criteria are met: (1) the service-connected disability caused a veteran to use tobacco products after service; (2) if so, the use of tobacco products as a result of the service-connected disability was a substantial factor in causing a secondary disability; and (3) the secondary disability would not have occurred but for the use of tobacco products caused by the service-connected disability. VAOPGCPREC 6-2003. The Veteran has raised the theory of entitlement that his tobacco use was secondary to his service-connected PTSD. See March 2013 Notice of Disagreement. The Board finds that the Veteran has not been afforded a medical opinion based on this theory of entitlement. For the proceeding reasons, the Board finds that there remains no adequate nexus opinion of record. Therefore, a remand is necessary in order to afford the Veteran a new VA examination with new opinions. The matters are REMANDED for the following action: 1. Obtain any outstanding and relevant VA treatment records. Should such exist, associate them with the claims file. 2. Schedule the Veteran for an examination to determine the nature and etiology of the Veteran's COPD. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. After the record review and examination of the Veteran, the VA clinician is asked to respond to the following inquiries: a) Is it at least as likely as not that the Veteran's COPD condition was incurred in, or is otherwise related, to his time on active service, to include (but not limited to) his in-service exposure to any herbicide agent? In rendering this opinion, the reviewing clinician should address the medical articles the Veteran has submitted. Additionally, the examiner must address the private nexus opinion from Dr. E.G., and if necessary, reconcile her findings with that opinion. The reviewing clinician is also advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. b) Whether it is at least as likely as not that (i) the Veteran's service connected PTSD caused a Veteran to use tobacco products after service; (ii) the Veteran's use of tobacco products as a result of his service-connected PTSD was a substantial factor in causing COPD; and (iii) his COPD would not have occurred but for the use of tobacco products caused by his service-connected PTSD. In rendering this opinion, the examiner should address the Veteran's submitted medical articles in the March 2013 Notice of Disagreement. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. (Continued on next page.) 3. Then, readjudicate the Veteran's remanded claim. If the benefit sought on appeal is not granted, provide the Veteran and his attorney with a Supplemental Statement of the Case, then return the appeal to the Board. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, 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.