Citation Nr: 24005331 Decision Date: 02/01/24 Archive Date: 02/01/24 DOCKET NO. 18-45 634 DATE: February 1, 2024 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. FINDING OF FACT The evidence of record persuasively weighs against a finding that the Veteran's COPD had its onset in, or is otherwise related to, his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for COPD have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's appeal was remanded by the Board of Veterans' Appeals (Board) in March 2023. Review of the completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The issues of entitlement to service connection for hypertension prior to August 10, 2022, and entitlement to service connection for a stomach condition were remanded by the Board in March 2023. The Agency of Original Jurisdiction (AOJ) granted service connection for gastroesophageal reflux disease (claimed as a stomach condition) in an October 2023 rating decision and granted entitlement to service connection for hypertension from March 13, 2014, in a November 2023 rating decision. These issues, having been granted in full, are no longer for appellate review. Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Entitlement to service connection for COPD In March 2014, the Veteran claimed service connection for COPD due to his period of active service, particularly due to his exposure to herbicide agents during service in Vietnam. "They sprayed the whole mountain with Agent Orange while we were on the top. I have no doubt that that has caused a lot of my health problems: my heart, stomach, blood pressure, COPD and more." Unfortunately, review of the evidence of record weighs against a finding that entitlement to service connection is warranted for the Veteran's COPD. Review of the service treatment records (STRs) does not indicate that the Veteran sought treatment for COPD or provided any complaints of difficulty breathing during service. The medical examination completed prior to separation from service in October 1969 reported normal findings of the Veteran's lungs and chest. In a Report of Medical History completed in October 1969, the Veteran denied any history of shortness of breath or pain/pressure in his chest. Records from the Salem VA Medical Center report that the Veteran was seen for a primary care visit in September 2012. The Veteran reported a 45-year history of smoking approximately a pack and a half of cigarettes per day. Respiratory examination at that time was normal. The Veteran denied shortness of breath or cough. A diagnosis of COPD was not reported at that time. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence of three things, (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry, (1) determining the competency of the source; (2) determining credibility, or worthiness of belief, and (3) weighing its probative value. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007); Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). The Board notes that the Veteran is competent to testify as to his perceived symptoms, such as his complaints of pain. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if the layperson (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) is describing symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, at 1376-77 (Fed. Cir. 2007). 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. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. If the positive and negative evidence is in approximate balance, which includes but is not limited to equipoise, the claimant receives the benefit of the doubt. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). If the evidence persuasively favors one side or the other, there is not an approximate balance, and therefore the benefit-of-the-rule does not apply. While the Veteran has a diagnosis of COPD, none of the competent evidence of record supports a relationship between this condition and the Veteran's active service. The Board notes that the Veteran has contended that his COPD is related to his in-service exposure to herbicide agents, specifically Agent Orange. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if the requirements of § 3.307(a)(6) are met and the rebuttable presumption provisions of § 3.307(d) are also satisfied. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. Here, the Veteran's had service in the Republic of Vietnam during the appropriate period and his exposure to herbicide agents is conceded. Unfortunately, COPD is not listed as a condition that is presumed to be the result of exposure to herbicides; as such, presumptive service connection for COPD based upon exposure to herbicide agents is not warranted. 38 C.F.R. § 3.309 (e). However, when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. Combee v. Brown, 34 F. 3d. 1039 (Fed. Cir. 1994). As such, the Board will also consider whether service connection is warranted on a direct basis including his exposure to herbicides without the presumption or as secondary to any of his service-connected conditions. While the Veteran has a current diagnosis of COPD and was exposed to herbicide agents during his service in Vietnam, the Board finds that the evidence of record weighs against a finding that service connection is warranted on a direct basis. The Board finds probative the opinions provided by the July 2023 VA examiner that the Veteran's COPD was less likely than not incurred in or caused by the any in-service injury, event, or illness, including his exposure to herbicide agents and the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. The examiner explained that based upon the medical literature review that there is insufficient evidence to determine whether an association exists between exposure to herbicides (2,4-D, 2,4,5-T and its contaminant TCDD, cacodylic acid, and picloram) and nonmalignant respiratory disorders and that the evidence, taken as a whole, cannot be considered limited or suggestive of an association between exposure to TCDD and obstructive airways disorders. The examiner stated that there is insufficient data on nonmalignant respiratory disorders in Vietnam veterans to draw a specific conclusion as to whether or not they are at increased risk. Based upon this evidence, combined with the Veteran's 45-year smoking history, the examiner concluded that the most likely etiology of his COPD is his tobacco dependency/use over many years. The examiner noted that the chemicals in cigarette smoke weaken your lungs' defense against infections, narrow air passages, cause swelling in air tubes and destroy air sacs-all contributing factors for COPD. The Board notes that the 2023 examiner provided thorough rationales for his opinions that are supported by the evidence of record, including consideration of the Veteran's lay statements, his service treatment records, and his medical records since service. As such, the Board finds the medical opinions provided by the 2023 VA examiner to be highly probative evidence weighing against a relationship to between any current COPD and the Veteran's period of active service, including his exposure to herbicide agents and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes the Veteran's reports that he believes that his COPD is due to his period of active service, including his exposure to herbicide agents. Unfortunately, the Board finds that the Veteran is a lay person and does not have the requisite medical training or credentials to be able to diagnose COPD or provide an opinion as to its etiology. See Jandreau, 492 F.3d at 1376-77. Thus, the Veteran's opinion regarding the etiology of his COPD is not a competent medical opinion and it cannot be assigned any probative weight. None of the other competent evidence of record provides evidence of a nexus between the Veteran's COPD and any period of active service. The Veteran's treatment records associated with the claims file also do not provide a nexus between his COPD and any incident of his active service. As none of the competent, credible evidence of record supports, a connection between the Veteran's COPD and his period of active service, the Board finds that the weight of the probative evidence of record is persuasively against the Veteran's claim for service connection and it must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, see Lynch, 21 F.4th 776 at 781-82. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.M. Johnson 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.