Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include due to herbicide agent exposure, is denied.

Citation Nr: 26001467 Decision Date: 01/30/26 Archive Date: 01/30/26 DOCKET NO. 19-32 492 DATE: January 30, 2026 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include due to herbicide agent exposure, is denied. Entitlement to service connection for gum disease, to include due to herbicide agent exposure, is denied. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that COPD began during active service or is otherwise related to an in-service injury or disease, including herbicide exposure. 2. The evidence of record persuasively weighs against finding that gum disease began during active service or is otherwise related to an in-service injury or disease, including herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for gum disease are not 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 1966 to August 1968. The Veteran died in December 2024. The Appellant is his wife. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision, issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ), a transcript of the hearing is of record Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). The law provides that, if a veteran was exposed to an herbicide agent during service, certain listed diseases shall be service connected if the requirements of 38 U.S.C.§ 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. The list of diseases afforded this presumption was expanded by August 2010 amendment to 38 C.F.R. § 3.309(e) to include chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease. Ischemic heart disease includes, but is not limited to, "acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina." This amendment is applicable to claims received by VA on or after August 31, 2010, and to claims pending before VA on that date, as well as certain previously denied claims. See 75 Fed. Reg. 52,202 (Aug. 31, 2010). The list of diseases afforded the presumption was again expanded on August 10, 2022, through the PACT Act. Public Law Number 117-168. The Board notes that COPD and gum disease are not included in the enumerated disorders. 38 C.F.R. § 3.309. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See 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). 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. Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021). If the evidence persuasively favors one side or the other, there is not an approximate balance, and therefore the benefit-of-the-doubt-rule does not apply. Id. at 78. 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include due to herbicide agent exposure, is denied. This service connection claim was received in July 2018. The Veteran contends he has COPD as a result of his active duty, including exposure to herbicides during active service in the Republic of Vietnam. A December 2023 TERA Memorandum indicates Agent Orange exposure of the Veteran is verified. Facts The service treatment records are silent as to complaints of, diagnosis of, or treatment for COPD during active service. An August 1966 Report of Medical Examination for induction documented a normal clinical evaluation of the respiratory system. A chest x-ray was within normal limits ("WNL"). The Veteran reported a history of sinusitis related to cold and coughing up blood, having had ulcers at age 15. A June 1968 Report of Medical Examination for separation also documented a normal clinical evaluation of the respiratory system and chest x-ray. The medical officer noted "minor" ear, nose, or throat trouble. The Veteran had no respiratory symptoms or signs immediately after active service. At a February 1969 VA examination, the Veteran reported leading a normal life compatible with age without difficulty, except for hearing difficulties. He reported working at a drywall company. The Veteran had no chest pain. Review of systems was "unremarkable." On examination, the Veteran appeared to be his stated age and did not appear to be ill. There was no dyspnea, orthopnea, cyanosis, clubbing or evidence of heart failure. Examination of the respiratory system; nose, sinuses and a chest x-ray were "negative." The VA examiner assessed, "except for hearing loss, normal male." In May 2018, a VA physician made an assessment of COPD. In February 2019, the Veteran reported shortness of breath while fishing. He reported being diagnosed with COPD "many years ago" and quitting smoking 40 years ago. His March 2019 pulmonary function testing was "abnormal." A lung cancer screening computerized tomography (CT) scan showed nodules, emphysema, and scarring. In April 2019, a VA physician found that the Veteran had "worsening" obstruction and new restriction on pulmonary function tests. A VA nurse ordered more laboratory tests, noting the Veteran had "extensive" exposure to sand, metal, dust, and "likely" asbestos. In October 2019, the Veteran reported not complaining about health problems during separation after being told that there was "no recourse of any kind" and complaining was "not an option." In November 2019, the Veteran reported to a VA pulmonologist about a history of silica exposure at a gypsum plant and work in a foundry, asbestos exposure, herbicide agent exposure, and burn pits. In November and December 2020, the Veteran's VA pulmonologist opined that the Veteran had "developed severe COPD related to exposures in Vietnam, primarily Agent Orange" that was the "most promin[e]nt cause of the COPD" because the Veteran had quit smoking 45 year ago. While the RO has obtained numerous opinions for this claim, they have previously been found inadequate by the Board. Accordingly, further discussion is not warranted. In a November 2024 VA opinion, the VA examiner opined that the Veteran's COPD is not related to his inservice herbicide exposure because there is a lack of substantiating evidence supporting a nexus between the current diagnosis of COPD and military service. Without chronicity during service or after service, a post-service event, illness, or injury is considered to be a more likely etiology the opinion indicated. Additionally, it was explained on the report that the Veteran's entrance and separation examination were negative for pulmonary problems and a review of the evidence indicated a late onset of COPD. While a February 2022 VA examination diagnosed the Veteran with COPD and left lung nodules, the Veteran reported his problems began 10 years prior to that examination. The opinion cited the evidence in the claims file that indicated the Veteran had pulmonary nodules since May 2018. The opinion also addressed the November 2020 opinion which indicated that the Veteran's COPD was due to his Agent Orange exposure because he had quit smoking previously Yet the report indicated that while the Veteran previously quit smoking, a March 2019 chest scan indicated the Veteran's "tiny pulmonary nodules with distribution" was most commonly seen in smoking related lung disease. Not something related to Agent Orange. Thus, the Veteran's smoking history was 19-20 years long and occurred after his one-year Agent Orange exposure. Also, his occupation history after active duty was in drywall, construction, and metalworking where he was exposed to drywall dust, asbestos, metal dust, wood dust, and sand. The opinion explained that medical literature supports that any history of smoking has the greatest contributing factor to the development of COPD versus exposure to Agent Orange. Findings of a relevant study were also discussed. The new study found that although lung capacity declines at a much slower rate in ex-smokers compared with current smokers, the rate of decline in ex-smokers is still higher than the normal age-related decline in never-smokers over a 30-year period." This explained the deleterious effects of even having a history of smoking versus never smoking before. The study also indicated that "former smokers and low- intensity current smokers have accelerated lung function decline compared with never-smokers." These results suggest that all levels of smoking exposure are likely to be associated with lasting and progressive lung damage. Moreover, while exposure to cigarette smoke is not associated with all diseases of the lungs, it is the major cause of many airways disorders, especially COPD. Thus, the opinion explained that the committee responsible for Update 2000 concluded that although new evidence suggested an increased risk of noncancerous respiratory disorders, particularly COPD, in people exposed to TCDD, the observation was tentative and the information insufficient to determine whether there is an association between exposures to the COI (chemicals of interest) and respiratory disorders. The opinion acknowledged that one study did find that exposure to Agent Orange "may have altered the inflammatory response to cigarette smoking in earlier stages of the habit, presumably enhancing the adverse effects, accelerating the loss of lung function, and hastening the onset of COPD" but still concluded that the Veteran's cigarette smoking was the primary cause of the COPD. In sum, the opinion concluded that the Veteran's COPD was not due to his inservice Agent Orange exposure. Instead, as he had many years of smoking and occupational exposure, they were more likely the cause of his COPD. Analysis The Board concludes that, while the Veteran has a current diagnosis of COPD, and evidence shows that in-service herbicide agent exposure, the probative evidence of record persuasively weighs against finding that the COPD began during service or is otherwise related to an in-service injury, event, or disease. Service treatment records are negative for any diagnosis, treatment, or symptoms of COPD. Additionally, post service records indicate the Veteran's COPD had a late onset. Additionally, the probative evidence of record indicates the Veteran's COPD is related to his smoking and post-service occupational work. The Board finds the November 2024 VA opinion probative. It addressed the Veteran's smoking history and the positive evidence in the claims file and explained why the Veteran's smoking history and post service occupation are more likely to be the etiology of the Veteran's COPD. On the other hand, while the 2020 VA pulmonologist opinion addressed the Veteran's late onset of COPD after he quit smoking, it did not provide an analysis as to why the Veteran's one-year herbicide exposure was a more likely etiology. It also did not address the Veteran's post-service occupational exposure. See Nieves-Rodriguez, 22 Vet. App. at 304 (holding that a medical opinion obtains probative weight from "factually accurate, fully articulated, sound reasoning for the conclusion"). Thus, the Board finds this opinion is less probative than the November 2024 opinion. While the Veteran is competent to report having experienced symptoms of shortness of breath since service, the Veteran is not competent to provide an etiology of his COPD. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran has not shown he possesses the requisite medical expertise to make this finding. Accordingly, his lay statements are not probative. In conclusion, the probative evidence of record persuasively weighs against the Veteran's COPD being related to his active-duty service, including his exposure to herbicides. Thus, the benefit of doubt doctrine is not applicable, and the claim is denied. 2. Entitlement to service connection for gum disease, to include due to herbicide agent exposure, is denied. VA received this claim for service connection claim in July 2018, and the claim was denied in a September 2018 rating decision. The Veteran contends that teeth started getting loose and falling out after returning from active service in the Republic of Vietnam. Facts Service treatment records indicate that the Veteran had "poor" oral hygiene at induction. An August 1966 Report of Medical Examination for induction showed a "normal" clinical evaluation of the mouth. A June 1968 Report of Medical Examination for separation showed a "normal" clinical evaluation of the mouth. The Veteran had no gum disease symptoms or signs immediately after active service. At a February 1969 VA examination, the Veteran reported leading a normal life compatible with age without difficulty, except for hearing difficulties. Review of systems was "unremarkable." Examination of the nose sinuses, mouth, and throat, including gross dental findings, were "negative." The VA examiner assessed, "except for hearing loss, normal male." In May 2018, a dentist who had treated the Veteran since August 2009 wrote that multiple teeth had to be extracted due to severe periodontal disease. In September 2015, all the upper teeth were extracted and then most of the bottom teeth as well. The dentist wrote that the Veteran still had severe periodontal disease as of May 2018. At his October 2020 Board hearing, the Veteran testified to having "very good" teeth and denied ever having cavities or any mouth or teeth problems prior to service in the Republic of Vietnam. The Veteran testified to brushing his teeth using "rice paddy water" because of a lack of fresh water. The Veteran testified that dentists said that the gum disease was "very serious" and reported weight loss due to an inability to eat with false teeth. In February 2022, the Veteran underwent a VA examination. The VA examiner diagnosed periodontal disease and missing teeth. The Veteran reported an onset of the mid 1970's. He explained that he began having gum issues after active duty and losing teeth. The Veteran had multiple teeth extracted and replacements made. The VA examiner indicated that the Veteran had a history of "poor" oral hygiene and periodontal disease. While the RO has obtained numerous opinions for this claim, they have previously been found inadequate by the Board. Accordingly, further discussion is not warranted. Most recently, in a November 2024 VA opinion, it was opined that the Veteran's gum disease was not related to service. It was reasoned that his dental record from 1966 for initial dental examination showed poor oral hygiene and moderate calculus build up. Additionally, his discharge examination from 1968 did not indicate any dental conditions related to the gums or periodontal disease. While his medical record from May 2024 shows he is an active smoker, a VA record from April 2019 indicated that the Veteran smoked for around 19 to 20 years, and he quit in 1980. A letter provided by the Veteran's dentist in May 2018 stated that he has been seen in that office since August 2009, has had multiple teeth extracted due to periodontal disease, and the Veteran still has severe periodontal disease, with all of his upper teeth extracted as of September 2015 and lost of his lower teeth also extracted. According to Johns Hopkins Medicine, the opinion indicated, bacteria and plaque are the leading causes of periodontal disease and other factors that can help lead to periodontal disease include genetics, poor oral hygiene, a diet low in nutrients, smoking or the use of smokeless tobacco, autoimmune or systemic diseases, diabetes, hormonal changes in the body, frequent and uncontrolled clenching or grinding of the teeth, certain medications, and drinking too much alcohol. The Veteran has known risk factors of poor oral hygiene and a history of smoking, both of which are more likely to cause periodontal disease. There also was no medical evidence of periodontal disease while Veteran was in service and a diagnosis for periodontal disease was not found until 2009, over 40 years after he separated from service. While it was considered that the Veteran was precluded from maintaining appropriate oral hygiene during his Vietnam service due to circumstances including the unavailability of clean water to brush his teeth with, it is more likely that his poor oral hygiene and history of smoking were causes of his periodontal disease. Analysis While the Veteran has a current diagnosis of periodontal disease and missing teeth, and evidence shows that exposure to herbicide agents during active service is presumed, the evidence of record persuasively weighs against finding that the Veteran's diagnosis of periodontal disease began during service or is otherwise related to an in-service injury, event, or disease. A review of the Veteran's Service Treatment Records indicates the Veteran had a risk factor of poor oral hygiene while in service. Additionally, at discharge and, later, at a post-service VA examination in 1969 it was not indicated that he had any issues as to periodontal disease. This indicates his disorder did not have its onset in service or within one year of discharge. Nevertheless, the Board concedes inservice exposure to herbicides. However, the probative evidence of record indicates that the Veteran's periodontal disease is not related to his inservice herbicide exposure. The Board finds the November 2024 opinion is probative. It addresses the Veteran's statements of washing his teeth with dirty water during service and his herbicide exposure, and it explains why his risk factors of a history of poor oral hygiene and smoking are more likely the etiology of his periodontal disease. While the Veteran is competent to report having experienced symptoms of issues with his gums and mouth, the Veteran is not competent to provide an etiology of his periodontal disease. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran has not shown he possesses the requisite medical expertise to make this finding. Accordingly, his lay statements are not probative. Additionally, the Board finds the Veteran's October 2020 testimony about "very good" teeth inconsistent with the August 1966 in-service dental examination about "poor" oral hygiene and the Veteran's own August 1966 reported medical history of "severe" tooth and gum trouble. Accordingly, the Board does not find the Veteran's statements are credible as to this appeal. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Instead, the Board finds the contemporaneous evidence in his service treatment records has greater probative value than his self-reported history. Curry v. Brown, 7 Vet. App. 59, 68 (1994). (Continued on the next page) ? Accordingly, the probative evidence of record is persuasively against the claim. Service connection is, therefore, not warranted, and the benefit of doubt doctrine is not applicable. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Wade, 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.