Citation Nr: 22018565 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 15-00 263 DATE: March 29, 2022 ORDER Entitlement to service connection for a pulmonary disorder, to include chronic obstructive pulmonary disease (COPD), as due to environmental exposure and asbestos, is denied. REMANDED Entitlement to service connection for diabetes mellitus, type II, as due to herbicide exposure and/or contaminated water, is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's COPD was not incurred in, or caused by, his active duty service, to include environmental exposures and/or asbestos. CONCLUSION OF LAW The criteria for entitlement to service connection for COPD, as due to environmental exposure and asbestos, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1980 to July 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In July 2018, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. A September 2021 rating decision granted entitlement to service connection for hypertension and obstructive sleep apnea. This represents a full grant of the benefits sought, therefore those issues are no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent medical or 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 present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran has been diagnosed with COPD. See July 2021 Respiratory Conditions Disability Benefits Questionnaire (DBQ). Accordingly, he has a current disability. Davidson, 581 F.3d 1313. Regarding an in-service incurrence of a disease or injury, the Veteran testified that he was exposed to dust during his active duty service in El Paso, Texas. He explained that he was in a dust bowl in the middle of the desert. Regarding asbestos, the Veteran testified that he may have been exposed during service when he worked on equipment. He also stated that he may have had some post-service exposure to asbestos. See May 2015 Hearing Transcript. The Board notes that the Veteran is competent under the law to describe what he experienced while in military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additional evidence supports the Veteran's statements that he was exposed to asbestos during his active service. The Veteran's service personnel records demonstrate that one of his military occupational specialties (MOS) was as a track vehicle repairman. As part of his duties in his MOS as a track vehicle repairman, it is reasonable to deduce the Veteran would have likely serviced clutch facings and brake linings, entailing some in-service exposure to asbestos. Accordingly, the Board finds the Veteran's account of in-service asbestos exposure to be credible and consistent with the circumstances of his service. See 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Further, the Board finds no basis in the record to question the Veteran's credibility regarding his statements. With regard to a nexus, there is probative medical evidence of record that clearly weighs against a relationship between the Veteran's COPD and his confirmed in-service asbestos exposure. Specifically, a July 2021 VA medical opinion found it was less likely than not that the Veteran's COPD was related to his active duty service. The examiner rationalized that the Veteran's medical treatment records contained no references to an asbestos-related condition, including pleural plaques, asbestosis, and mesothelioma. The Board notes that the examiner stated there was no evidence of asbestos exposure in service, which is contradicted by the above finding. However, as the examiner explained that there are no medical studies which reference a cause and effect association between asbestos exposure and the development of COPD, the Board finds this to be harmless error. See July 2021 Medical Opinion DBQ. In addressing the Veteran's in-service dust exposure, the examiner stated that there is no evidence of a causal relationship between generalized dust exposure and the development of COPD. The examiner stated that specific occupational dust exposures, including silica and coal exposure, may be associated with COPD, but those exposures have not been established. Rather, the examiner opined that the Veteran's COPD was caused by his history of smoking cigarettes. The examiner rationalized that COPD is typically caused by smoking and the Veteran has an extensive history of smoking since he was thirteen years old. Id. To the extent that the Veteran indicated that his COPD was related to in-service asbestos and/or dust exposure, the Board finds that he is not competent to offer an opinion as to the link between his current diagnosis and his active service, as such a finding requires a level of medical expertise which the Veteran, as a layperson, does not possess. See Layno, 6 Vet. App. at 469-71 (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise); Jandreau, 492 F. 3d at 1376-77 (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr, 21 Vet. App. at 309 (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature"). While the Veteran's statements would be competent as to his observations of lung symptomatology, to the extent these symptoms could be viewed through his senses, he is not competent to relate any post-service pulmonary disorder to his active service or any in-service asbestos exposure. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to service connection for a pulmonary disorder is warranted. Rather, the evidence persuasively weighs against a finding that the Veteran's COPD is related to his active duty service, including environmental exposures and asbestos. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus, type II, as due to herbicide exposure or contaminated water, is remanded. The Veteran asserts that his diabetes mellitus is related to his active duty service. Specifically, he stated that he was exposed to herbicides and contaminated water while serving at Aberdeen Proving Ground (APG). See May 2015 Hearing Transcript. In support of his claim, the Veteran submitted a report by the United States Environmental Protection Agency (EPA), which designated APG as a Mid-Atlantic Superfund site. The document lists APG as having been used for chemical testing and being contaminated with hazardous chemicals. A June 2021 records research response indicated the National Archives and Records Administration (NARA) was unable to locate the Veteran's unit records and therefore unable to locate supporting documentation for the Veteran's claimed exposures. See June 2021 Records Response. The Board notes that the Veteran was stationed at APG from September 24, 1980 to December 4, 1980. As such, the Board finds that VA has not fulfilled its duty to assist the Veteran by attempting to verify the claimed herbicide and contaminated water exposures. Accordingly, a remand is required in order to determine whether the Veteran was exposed to an herbicide or some other toxic chemical and to obtain additional medical opinion. 2. Entitlement to a TDIU is remanded. Since the TDIU claim is inextricably intertwined with the remaining service connection and increased rating claims, it is also being remanded. See 38 C.F.R. § 4.16(a); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered); Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996) (claims are inextricably intertwined when they have common parameters, such as when the outcome of one may affect the outcome of the other. And to avoid piecemeal adjudication of these types of claims, they should be considered together). The matters are REMANDED for the following action: 1. Follow controlling guidance and request herbicide exposure verification from the Department of Defense. If the Department of Defense does not confirm herbicide exposure, refer the Veteran's pertinent information to any other appropriate entity with a request for verification of exposure to herbicides or other hazardous or toxic chemicals. All documentation sent and received by the AOJ must be associated with the claims file. For purposes of this determination, it is to be assumed that the Veteran served at Aberdeen Proving Ground during the time period from September 24, 1980 to December 4, 1980. 2. If exposure to herbicides is conceded, the Veteran's claim of entitlement to service connection for diabetes mellitus should be granted. If exposure to other hazardous or toxic chemicals and/or contaminated water is found, provide the claims folder to an appropriate VA examiner for review. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diabetes mellitus, type II, had its clinical onset during active service, or is related to any incident of service, including any exposure to hazardous or toxic chemicals and/or contaminated water at Aberdeen Proving Ground. A complete rationale for all opinions expressed must be provided. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. M. Stedman, 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.