Citation Nr: 21042337 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 16-17 992 DATE: July 12, 2021 ORDER Service connection for chronic obstructive pulmonary disease (COPD), claimed as a lung condition, to include as due to herbicide exposure, is denied. VETERAN'S CONTENTIONS The Veteran contends that he developed a lung condition as a result of in-service exposure to herbicide agents including Agent Orange. REMANDED The issue of entitlement to service connection for hypertension, to include as due to herbicide exposure, is remanded. FINDING OF FACT COPD was not shown in service or for many years thereafter and is not otherwise related to service, to include exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for COPD are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1966 to March 1968. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Jurisdiction is currently with the RO in Phoenix, Arizona. These claims were previously before the Board at which time they were remanded for further development. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) (claimed as a lung condition), to include as due to herbicide exposure Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107 (b); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge). Here, in addressing the criterion of a current disability, a December 2019 VA examination confirmed a current diagnosis of COPD. See December 2019 Respiratory Conditions Examination Report. VA treatment records also confirm a current diagnosis of COPD. See May 2019 Seattle VAMC Records. In addressing in-service incurrence, as noted above, the Veteran has alleged that he has COPD (claimed as a lung condition) as a result of in-service exposures to herbicide agents, including Agent Orange. The Veteran served in the Republic of Vietnam (Vietnam) and his herbicide exposure is presumed. Thus, element two is met. The Veteran's service treatment records (STRs), however, are void of diagnosis of or treatment for COPD. In addressing nexus, to the extent that the Veteran has stated that he has COPD attributable to service, the Board finds that he is competent to report on his symptoms and that of which he has personal knowledge, but he is not competent to provide an opinion as to the etiology of his disability because such a question is not answerable by the application of knowledge within the realm of a lay person. See Layno, 6 Vet. App. at 469-70; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, because the etiology of COPD may be multifactorial, and he lacks the requisite expertise, he is not competent to offer an opinion as to a relationship to service. The evidence of record otherwise includes a December 2019 VA Respiratory Conditions examination report in which the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reviewed the Veteran's claims folder and observed that the Veteran's condition was COPD; the Veteran was diagnosed by a pulmonologist as having COPD (Gold Stage II). The examiner noted that the Veteran reported the onset of symptoms associated with COPD in the late 1960s, but clinical evidence showed that the Veteran developed shortness of breath and was evaluated with pulmonary function studies and found to have mixed restrictive and obstructive COPD in 2002. The Veteran developed the condition in the setting of minimal cigarette use (the Veteran smoked for 3-4 years, quitting in 1968), but he also chewed tobacco. In determining that it was less likely than not that the Veteran's COPD was related to in-service exposure to herbicide agents, the examiner explained that while the exact cause of the Veteran's COPD is unclear, there are no studies to suggest that individuals exposed to herbicides have a 50 percent or better chance of developing COPD and COPD is not one of the presumptive diseases caused by Agent Orange exposure. The Board finds the December 2019 VA examiner opinion to be highly probative. The opinion was based on a review of the claims file, relevant facts, and peer reviewed medical literature, and the examiner provided a detailed rationale. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). There is no competent evidence to the contrary. In sum, without any competent evidence that the Veteran has COPD related to service, direct service connection is not warranted. Additionally, there is no indication that the condition manifested within one year of service. The Board finds that the Veteran's COPD did not have its clinical onset in service, or within one year of his discharge from active service and is not otherwise related to a period of active service, to include herbicide exposure; therefore, service connection is not warranted. There is no doubt to be resolved in this case. 38 U.S.C. § 5107. REASONS FOR REMAND Entitlement to service connection for hypertension, to include as due to herbicide exposure, is remanded. The Veteran contends that he developed hypertension as a result of in-service exposure to herbicide agents including Agent Orange. In this regard, the evidence of record includes a December 2019 VA Hypertension examination report in which the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there were no studies that provided data to suggest that an individual exposed to herbicides has a 50 percent or better likelihood of developing hypertension; the cause of 90 percent of all hypertension is thought to be idiopathic; and hypertension is not one of the presumptive diseases associated with Agent Orange exposure. The examiner acknowledged the National Academies of Sciences, Engineering and Medicine (NAS) study noting limited or suggestive evidence of association between hypertension and exposure to Agent Orange but indicated that she was unable to locate the NAS update. With regard to the previous NAS study, the examiner reasoned that limited or suggestive evidence of association does not mean causality nor does it mean a 50 percent or greater chance of having an exposure to an herbicide results in a condition such as hypertension; more data is needed to reach such a conclusion and the examiner was unable to find such data. The Board finds the December 2019 VA examiner opinion inadequate to decide the Veteran's claim for service connection for hypertension. The Board notes that the NAS recently found sufficient evidence of an association between hypertension and exposure to Agent Orange and other herbicide agents used during the Vietnam War. Veterans and Agent Orange: Update 11 (2018). Hypertension was upgraded from its previous classification in the category of "limited or suggestive" evidence of an association to the category of "sufficient" evidence of an association. The December 2019 VA examination report reflects that the examiner was unable to locate this update, addressing the previous classification of "limited or suggestive" evidence of an association instead. As such, the Board finds that further remand is required to obtain a VA examination which considers the NAS update. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.) The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Return the file to the December 2019 VA examiner for an addendum opinion. If that examiner is unavailable, the opinion should be provided by another examiner. The claims file, and a copy of the remand, must be reviewed by the examiner. Following review of the file, and the remand, the examiner is to address the following: (a.) Is it at least as likely as not (50 percent probability or more) that the Veteran has hypertension that had its onset in service, or within one year of his separation from service, or is otherwise related to service? Please address the Veteran's contention that he has hypertension as a result of herbicide exposure including Agent Orange and his contentions that he did not have hypertension prior to service, or a family history of hypertension. Please also address the National Academies of Sciences, Engineering and Medicine (NAS) which recently found sufficient evidence of an association between hypertension and exposure to Agent Orange and other herbicide agents used during the Vietnam War. (b.) All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith-Jennings, 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.