Citation Nr: 21042793 Decision Date: 07/14/21 Archive Date: 07/13/21 DOCKET NO. 15-21 276 DATE: July 14, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to herbicide agent exposure, on the basis of substitution and for accrued benefits purposes is denied. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure, on the basis of substitution and for accrued benefits purposes is denied. Entitlement to service connection for a prostate condition, to include as due to herbicide agent exposure, on the basis of substitution and for accrued benefits purposes is denied. FINDINGS OF FACT 1. The Veteran's COPD did not have its onset in service, did not manifest within one year of active service, and was not otherwise related to active service, to include herbicide exposure. 2. The Veteran's hypertension did not have its onset in service, did not manifest within one year of active service, and was not otherwise related to active service, to include herbicide exposure. 3. The Veteran's prostate condition did not have its onset in service, did not manifest within one year of active service, and was not otherwise related to active service, to include herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD, to include as due to herbicide agent exposure, on the basis of substitution and for accrued benefits purposes 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 hypertension, to include as due to herbicide agent exposure, on the basis of substitution and for accrued benefits purposes have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a prostate condition, to include as due to herbicide agent exposure, on the basis of substitution and for accrued benefits purposes have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1967 to January 1973, to include service in the Republic of Vietnam. The Appellant is the Veteran's surviving spouse and has been substituted as the claimant in the pending appeal. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Appellant testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. In November 2020, the Board last remanded these matters to the RO for further development. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a veteran must show: "(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"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). With regard to herbicide exposure, VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). However, the list of diseases associated with herbicide exposure do not include COPD, hypertension, or benign prostatic hypertrophy. 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to herbicide agent exposure, on the basis of substitution and for accrued benefits purposes The Appellant contends that the Veteran's COPD was related to herbicide exposure during service. There is no history of the Veteran's COPD having its onset in service. The Veteran's service treatment records (STRs) are silent for any complaints, treatments, or diagnosis of COPD. The evidence of record indicates that the Veteran was diagnosed with COPD in 1993; approximately 20 years after separation from active duty. Notably, the Veteran was afforded an Agent Orange Examination in November 2013. While a diagnosis of COPD was noted, there was no indication that the condition was related to service or any herbicide exposure therein. The Veteran was afforded a VA medical opinion in June 2020. While the examiner found that the condition was not related to service, or otherwise related to any herbicide exposure during service, the opinion was found to be inadequate for determinative purposes. See November 2020 Board Decision. Accordingly, the June 2020 examination has no probative weight. The Veteran was again afforded a VA medical opinion in January 2021. The examiner found that the Veteran's COPD was not related to service and was instead caused by the Veteran's history of smoking. The examiner noted the Appellant's contention that that the Veteran was not a heavy smoker and smoked on and off throughout his life. However, the examiner noted a pulmonary consult during which the Veteran reported a 50 pack a year smoking history and that he smoked half a pack per day at the time. The examiner also noted a July 2018 statement that indicated that the Veteran was addicted to cigarettes and also acknowledged that he was exposed to second-hand smoke during military service. The examiner pointed out that while a family history of COPD increases an individual's risk of developing COPD, cigarette smoking is the major risk factor and with the exception of the inherited condition of alpha1 antitrypsin deficiency, overwhelms any contribution from family history. Finally, the examiner noted that while the medical literature supports self-reported diagnosis of COPD is more common in veterans exposed to Agent Orange/herbicide, this study did not validate the diagnosis with spirometry and provided support for an association, rather than a causal nexus, between Agent Orange exposure and COPD. The Board finds that the January 2021 examiner's opinion is highly probative, as it is based on an accurate medical history, cites pertinent medical literature, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Board has considered the Appellant's contentions that the Veteran's COPD is related to service, she is not competent to provide a nexus opinion in this case. The issue is medically complex, and falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The Board finds that the preponderance of the evidence is against a finding that the Veteran's COPD is related to service, and therefore, the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the competent, probative evidence is against the claim, the doctrine is inapplicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure, on the basis of substitution and for accrued benefits purposes The Appellant contends that the Veteran's hypertension was related to herbicide exposure during service. There is no history of the Veteran's hypertension having its onset in service. The Veteran's STRs are silent for any complaints, treatments, or diagnosis of hypertension. The evidence of record indicates that the Veteran was diagnosed with hypertension in 2003; more than 40 years after separation from active duty. Another VA medical opinion was provided in June 2020. While the examiner found that the condition was not related to service, or otherwise related to any herbicide exposure during service, the opinion was found to be inadequate for determinative purposes. See November 2020 Board Decision. Accordingly, the June 2020 examination has no probative weight. The Veteran was again afforded a VA medical opinion in January 2021. The examiner concluded that the Veteran's hypertension was not manifest within one year of separation from service and that the condition was not related to active service, to include herbicide exposure. The examiner noted that the Veteran's blood pressure was normal at entrance into service, during service, and at separation. At the time hypertension was noted in 2015 in the VA records, the Veteran's BMI was 34, rendering a diagnosis of obesity. The examiner also noted that there was no documented family history of hypertension. It was noted that obesity is a well-documented and robust risk factor for hypertension. The examiner concluded that in view of a compelling causal nexus between the Veteran's obesity and his hypertension, the significant window between service and the diagnosis of hypertension, and despite the epidemiological evidence supporting an association between Agent Orange exposure and the development of hypertension, it is at least as likely as not that the Veteran's hypertension is proximately due to his obesity and less likely than not due to Agent Orange exposure. It is noted that prior to his death, service connection had been established for bilateral hearing loss and tinnitus. There is no indication in the record nor has it been claimed that obesity was caused by either service-connected disorder. The Board finds that the January 2021 examiner's opinion is highly probative, as it is based on an accurate medical history, cites pertinent medical literature, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Board has considered the Appellant's contentions that the Veteran's hypertension is related to service, she is not competent to provide a nexus opinion in this case. The issue is medically complex, and falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The Board finds that the preponderance of the evidence is against a finding that the Veteran's hypertension is related to service, and therefore, the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the competent, probative evidence is against the claim, the doctrine is inapplicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 3. Entitlement to service connection for a prostate condition, to include as due to herbicide agent exposure, on the basis of substitution and for accrued benefits purposes The Appellant contends that the Veteran's prostate condition, benign prostatic hypertrophy, was related to herbicide exposure during service. Alternatively, she contends that the condition had its onset in service or was related to symptoms that manifested shortly after service. There is no history of the Veteran's benign prostatic hypertrophy having its onset in service. The Veteran's entrance examination showed that the Veteran once had or currently had stomach, liver, or intestinal trouble, as well as a chronic cough, frequent indigestion, and a ruptured hernia. The Veteran's separation examination showed that the Veteran once had or currently had piles or rectal disease. The evidence of record indicates that the Veteran was diagnosed with benign prostatic hypertrophy in 2009; approximately 36 years after separation from active duty. The Veteran was afforded a VA medical opinion in June 2020. While the examiner found that the condition was not related to service, or otherwise related to any herbicide exposure during service, the opinion was found to be inadequate for determinative purposes. See November 2020 Board Decision. Accordingly, the June 2020 examination has no probative weight. The Veteran was again afforded a VA medical opinion in January 2021. The examiner concluded that the Veteran's prostate condition did not have its onset in service and was not otherwise related to active service, to include as due to herbicide exposure. The examiner noted the Appellant's contentions that the Veteran had lower abdominal pains for many years, developed unspecified bathroom issues due to prostate problems upon his return from Vietnam, and that he also reported problems urinating. The examiner added that while the Appellant's reports were very nonspecific, the VA medical records were more specific in this regard. The examiner indicated that the Veteran was diagnosed with benign prostatic hypertrophy in 2009, at which time he underwent TURP for urinary retention. Then in 2013, the Veteran required temporary placement of a Foley catheter for recurrent urinary retention. His symptoms at that time included urinary hesitancy, intermittency, and weak stream prior to Foley placement. The examiner pointed out that there was absolutely no documentation of prostate injury in the medical records, either surrounding service in Vietnam or in subsequent VA notes. For this reason, the examiner concluded that it was clear that the Veteran's urinary symptoms with urinary obstruction and lower urinary tract symptoms documented throughout his VA records were due to the diagnosis of benign prostatic hypertrophy as noted in his VA records. The examiner added that it was very unlikely that the urinary retention and benign prostatic hypertrophy starting in 2009 was related to his nonspecific urinary symptoms over 40 years previously; adding that benign prostatic hypertrophy is an extremely unlikely diagnosis in a male in his 20's. Finally, the examiner noted that while prostate cancer is Agent Orange presumptive, the medical literature does not support any association whatsoever between Agent Orange exposure and benign prostatic hypertrophy. The examiner noted that the reverse is documented with herbicide exposure; namely a reduction in serum testosterone level and inhibition of growth of the prostate gland with Agent Orange exposure. The Board finds that the January 2021 examiner's opinion is highly probative, as it is based on an accurate medical history, cites pertinent medical literature, makes clear distinctions between the Appellant's contentions and the objective medical evidence, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Board has considered the Appellant's contentions that the Veteran's benign prostatic hypertrophy is related to service, she is not competent to provide a nexus opinion in this case. The issue is medically complex, and falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The Board finds that the preponderance of the evidence is against a finding that the Veteran's prostate condition is related to service or was manifested within one year of service and therefore, the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the competent, probative evidence is against the claim, the doctrine is inapplicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Marsh II, 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.