DERMATITIS OR ECZEMA

E. BLOWERS · 2025 · Case ID: 25008922

MIXED

Summary

The veteran, who served from September 1966 to December 1970, including service in Vietnam, appeals the denial of service connection for a respiratory disorder (COPD/emphysema) and the grant of service connection for dermatitis. The veteran claims both conditions are related to herbicide agent exposure during service and, for the respiratory disorder, also claims direct service connection due to a spontaneous pneumothorax experienced in service. The Board granted service connection for dermatitis, finding it etiologically related to herbicide agent exposure. Despite the veteran's lay testimony and multiple VA examinations, the Board found the opinions insufficient to establish a nexus for dermatitis, ultimately resolving doubt in the veteran's favor due to the lack of adequate explanation from the examiners regarding the connection to herbicide exposure and the veteran's consistent reports of skin issues since service. For the respiratory disorder (COPD/emphysema), the Board denied service connection. While the veteran has a history of Vietnam service (presuming herbicide exposure) and an in-service pneumothorax, the Board found the evidence weighed against service connection. VA examiners attributed the COPD/emphysema to the veteran's significant post-service smoking history (40-pack-year) and found no medical literature supporting a link between pneumothorax or herbicide exposure and COPD. The Board agreed, noting the 42-year gap between service and COPD diagnosis and the strong link between smoking and COPD.

Rationale

Presumed herbicide exposure due to Vietnam service; Veteran provided credible lay reports of post-service onset of rashes; Inadequate VA medical opinions failed to consider lay contentions and herbicide exposure nexus

Special Benefit

NO SPECIAL BENEFIT

Docket No.

18-01 871

Full Decision Text

Citation Nr: 25008922
Decision Date: 07/08/25 Archive Date: 07/08/25

DOCKET NO. 18-01 871
DATE: July 8, 2025

ORDER

Service connection for dermatitis, due to herbicide agent exposure, is granted.

Service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD) with emphysema, including as due to herbicide agent exposure, is denied.

FINDINGS OF FACT

1. The evidence shows current diagnoses of dermatitis and COPD with emphysema.

2. The Veteran had active service in the Republic of Vietnam, so exposure to herbicide agents is presumed.

3. Dermatitis is etiologically related to herbicide agent exposure during service.

4. COPD with emphysema was not incurred in service and is not etiologically related to service, including due to herbicide agent exposure or the spontaneous pneumothorax during service.

CONCLUSIONS OF LAW

1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for dermatitis have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303.

2. The criteria for service connection for a respiratory disorder, including COPD with emphysema, have not been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran, who is the Appellant, served on active duty from September 1966 to December 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision from the Regional Office (RO). In April 2022, the Veteran testified at a Board virtual hearing before the undersigned Acting Veterans Law Judge. The hearing transcript has been associated with the record.

This matter was previously before the Board in June 2024 and February 2025, during which the Board remanded the issues on appeal for additional development, including requesting service department records to verify the Veteran's prior periods of service, and to obtain addendum VA toxic exposure risk activity (TERA) medical opinions. As for the claim of service connection for a respiratory disorder, the Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the June 2024 and February 2025 Board Remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002).

As for service connection for dermatitis, while cognizant of its responsibilities under Stegall, as the Board grants service connection for dermatitis, which is a total grant of benefits as to the issue on appeal, the Board need not address Stegall compliance at this time.

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in the appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal. In view of the foregoing, the Board will proceed with appellate review.

Service Connection

Under the relevant laws and regulations, 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; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service.

The Veteran is currently diagnosed with dermatitis and COPD/emphysema, which are not recognized as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 do not apply to these issues. Walker v. Shinseki, 708 F
Generally, service connection for a disability requires evidence of: (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 in or aggravated by service.

In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service, the Veteran must show the following: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; (2) that he suffered from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). If a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for several medical conditions. 38 C.F.R. § 3.309(e).

"Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). In order to establish qualifying "service in Vietnam," a veteran must demonstrate actual duty or visitation in the Republic of Vietnam.

In Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc), the United States Court of Appeals for the Federal Circuit held that veterans who "served in the 12 nautical mile territorial sea of the Republic of Vietnam" are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section's other requirements.

Effective February 24, 2011, VA amended its adjudication regulations to extend the presumption of herbicide exposure to certain veterans who served in Korea. Specifically, VA added a new paragraph (iv) to 38 C.F.R. § 3.307(a)(6) that reads as follows:

A veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.

VA revised 38 C.F.R. § 3.307 to add a presumption of exposure to herbicides for members of the Air Force and Air Force Reserve who regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been exposed during such service to an herbicide agent. 80 Fed. Reg. 35,246, 35, 248 (June 19, 2015).

Dermatitis and COPD/emphysema are not listed as diseases for which presumptive service connection based on exposure to herbicides agents may be granted. 38 C.F.R. § 3.309(e).

Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160
agents may be granted. 38 C.F.R. § 3.309(e).

1. Service Connection for Dermatitis is Granted.

In this case, the Veteran asserts that dermatitis is related to herbicide agent exposure during service in Vietnam. The Veteran contends he developed rashes that ooze pus, which have impacted his hands, forearms, and legs since he returned from Vietnam. The Veteran testified that the rashes he has experienced since his herbicide agent exposure are different than any rash he experienced as an allergic reaction to penicillin. Furthermore, the Veteran asserts his rashes were treated with topical creams during service and upon discharge from service; however, he has continued to experience flare ups of rashes two-to-three times a year since service discharge. See April 2022 Board Hearing Testimony; see also December 2011, October 2014 Statements in Support of the Claim.

The evidence reflects a current diagnosis of atopic dermatitis. See December 2017, September 2024 VA Examination Reports.

In-service exposure to herbicide agents is presumed based on foreign service in the Republic of Vietnam. The service personnel records and January 2025 TERA memorandum reflect that the Veteran had foreign service in the Republic of Vietnam and was a recipient of the Vietnam Service Medal. Additionally, the record reflects that VA previously granted service connection for hypertension due to herbicide agent exposure. See April 2024 rating decision.

The Board finds that the evidence of record is at least in equipoise as to the question of whether dermatitis is etiologically related to exposure to herbicide agents during service, that is, was incurred in or caused by service. Although the service treatment records are silent for complaints, symptoms, or treatment of a skin disorder other than warts on the hands during service, the Veteran has provided credible lay reports of an onset of skin rashes on the hands, arms, and legs upon return from Vietnam, which he managed with topical agents over the years. The Veteran has consistently reported, in written lay statements and during post-service medical encounters for purpose of treatment, an onset of skin rashes since the 1970s that have recurred two-to-three times a year since service separation. See April 2022 Board Hearing Testimony; December 2011, October 2014 Statements in Support of the Claim; see also August 2013 Disability Benefits Questionnaire; August 1994, December 2014 VA treatment records.

The Veteran was offered VA medical opinions in December 2017, September 2024, and February 2025. The VA examiner in December 2017 opined that it is less likely than not that the dermatitis was caused by or related to service because the condition did not begin until the Veteran returned home from discharge. However, the examiner did not consider multiple lay statements in the record in which the Veteran endorsed problems with skin rashes upon his return from Vietnam with an onset of skin rashes in 1970. Additionally, the VA examiner did not consider whether the dermatitis is directly related to herbicide agent exposure during service. As such, the December 2017 VA opinion is of no probative values as it is based on an inaccurate factual premise of no skin rashes until after service discharge and does not adequately consider all theories of entitlement raised by the record. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis but cannot reject the opinion solely because the history was from the veteran).

The VA examiner in September 2024 opined that the dermatitis is less likely than not related to TERA, to include herbicide agent exposure, reasoning that the examiner was unable to find medical literature to support that toxic exposure caused the Veteran's atopic dermatitis. However, the examiner provided a conclusory statement with no supporting rationale explaining why the dermatitis is not related to herbicide agent exposure during service. The September 2024 opinion is of no probative value, as the VA examiner did not consider the lay contentions provided by the Veteran, discuss the
1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis but cannot reject the opinion solely because the history was from the veteran).

The VA examiner in September 2024 opined that the dermatitis is less likely than not related to TERA, to include herbicide agent exposure, reasoning that the examiner was unable to find medical literature to support that toxic exposure caused the Veteran's atopic dermatitis. However, the examiner provided a conclusory statement with no supporting rationale explaining why the dermatitis is not related to herbicide agent exposure during service. The September 2024 opinion is of no probative value, as the VA examiner did not consider the lay contentions provided by the Veteran, discuss the relevant medical history of the condition, nor summarize the medical literature or principles relied upon to support the opinion.

In a February 2025 addendum opinion, the VA examiner opined that the dermatitis is less likely than not related to service, to include hand warts treated during service or toxic exposures associated with the military occupational specialty of Aircraft loadmaster, such as acetylene gas or liquefied gas. However, the examiner failed to consider whether the current dermatitis is directly related to herbicide agent exposure as requested in the June 2024 and February 2025 Board remand directives, rendering the opinion insufficient to decide the matter.

Overall, despite multiple attempts to assist the Veteran in obtaining an adequate medical opinion on the theory of direct service connection, the VA medical opinions of record have not sufficiently explained why dermatitis is not directly related to herbicide agent exposure during service, particularly in light of lay reports of an onset of skin rashes upon the Veteran's return from Vietnam.

Based on the forgoing, the Board has resolved reasonable doubt in the Veteran's favor to find that the dermatitis is etiologically related to service, to include herbicide agent exposure during service in Vietnam; therefore, service connection for dermatitis is warranted on a direct basis as due to herbicide agent exposure in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d). As service connection is being granted on a direct basis, other theories of service connection have been rendered moot, leaving no question of law or fact for the Board to decide. See 38 U.S.C. § 7104.

2. Service Connection for a Respiratory Disorder is Denied.

In this case, the Veteran asserts that the respiratory disorder is related to herbicide agent exposure during service in Vietnam. Alternatively, the Veteran contends that the respiratory disorder is directly related to a spontaneous pneumothorax experienced during service. In lay testimony and statements, the Veteran asserted that he developed respiratory problems shortly after returning from Vietnam, and he was treated for a collapsed lung during this time. The Veteran reported seeking additional treatment at Wilkes Barre VA Medical Center (VAMC) after discharge from service due to chest pain and difficulty breathing in cold weather in the 1970s, but he was informed by the facility that the records are no longer available. The Veteran contends that he has had intermittent problems with shortness of breath, chest colds, and chest pain over the years. See April 2022 Board Hearing Testimony; see also December 2011, October 2014, July 2017 Statements in Support of the Claim.

The evidence of record shows current diagnoses of COPD with emphysema. See September 2024 VA Examination Report; October 2020, April 2024 VA treatment records. Additionally, the Veteran served in Vietnam, so herbicide agent exposure during service is presumed.

After reviewing all the lay and medical evidence of record, the Board finds that the persuasive weight of the evidence demonstrates that the Veteran's respiratory disorder, to include COPD with emphysema, did not have its onset during service and is not otherwise related to active service, to include due to herbicide agent exposure or the spontaneous pneumothorax during service. An undated service record indicates that the Veteran was seen for aching and tightness in the chest wall and discomfort on moving and breathing, but no diagnosis was rendered. The service treatment records show that the Veteran was admitted to Ohio State University Hospital in August 1970 with a sudden onset of right chest pain and a questionable history of pneumothorax a year prior to admission. Upon imaging and clinical evaluation, the diagnostic impression was spontaneous pneumothorax, which was treated with a closed tube thoracotomy prior to the Veteran's discharge in stable condition. A November 1970 follow up consultation shows a history of right pneumothorax two and a half months prior, but the examining physician indicated that the Veteran was asymptomatic since then. The Veteran was able to tolerate a chamber ride to an altitude of
chest wall and discomfort on moving and breathing, but no diagnosis was rendered. The service treatment records show that the Veteran was admitted to Ohio State University Hospital in August 1970 with a sudden onset of right chest pain and a questionable history of pneumothorax a year prior to admission. Upon imaging and clinical evaluation, the diagnostic impression was spontaneous pneumothorax, which was treated with a closed tube thoracotomy prior to the Veteran's discharge in stable condition. A November 1970 follow up consultation shows a history of right pneumothorax two and a half months prior, but the examining physician indicated that the Veteran was asymptomatic since then. The Veteran was able to tolerate a chamber ride to an altitude of 43,000 feet (ft), as well as rapid decompression from 8000 ft cabin altitude to 22,000 with no recurrence of symptoms such as dyspnea or chest pain. See August 1970, November 1970 service treatment records.

The service treatment records show no report, complaint, findings, diagnosis, or treatment of COPD or emphysema during service, to include during evaluation of the acute pneumothorax. While the November 1970 service separation examination report notes a history of right chest pain and shortness of breath and the August 1970 spontaneous right pneumothorax, the November 1970 separation examination report indicates that the Veteran remained asymptomatic over the last two months. See November 1970 service treatment record.

Regarding the theory of direct service connection, the Board finds that the persuasive weight of the evidence demonstrates that the current respiratory disorder (COPD with emphysema), which first manifested many years after service, was not caused by or is otherwise related to service, to include presumed herbicide agent exposure or the in-service spontaneous pneumothorax. The evidence indicates that COPD with emphysema had a post-service onset on or about 2012, 42 years after service separation, when COPD was discovered via chest X-ray. Years later, an April 2017 thorax computed tomography (CT) showed extensive emphysema. See August 2013, April 2017 private treatment records; March 2012 VA treatment record.

Relevant to this matter, post service records also reflect a longitudinal history of smoking tobacco, as the VA treatment records indicate that the Veteran started smoking cigarettes in high school and did not quit smoking until about 2004, noting a 40-pack-per-year history of smoking. The VA treatment records attribute the Veteran's emphysema to his long history of smoking tobacco. Notably, during a March 2012 VA examination, the Veteran confirmed a history of smoking one pack per day for 35-40 years and he endorsed a longitudinal history of shortness of breath that he personally attributed to smoking. See August 2013, April 2017 private treatment records; March 2012, April 2012, May 2014, October 2020, April 2024 VA treatment records; March 2012 VA Examination Report.

The Veteran did not submit competent and credible evidence of a medical nexus between the COPD with emphysema and active service, to include herbicide agent exposure or the spontaneous pneumothorax during service. The Board has considered the medical literature the Veteran submitted in support of the respiratory disorder claim. The medical literature indicates that COPD is prevalent in the aging population exposed to tobacco smoke and airborne pollutants. It does not relate COPD or emphysema to spontaneous pneumothorax or herbicide agent exposure. See December 2024 Correspondence.

The medical articles also discuss methods of managing pneumothorax and address two forms of atraumatic pneumothorax: primary spontaneous pneumothorax (PSP) and secondary spontaneous pneumothorax (SSP). Per the submitted literature, PSP typically occurs in young (e.g., early 20s), thin males that smoke, while SSP typically occurs in older patients with an underlying lung disease, such as COPD or emphysema, due to an acute exacerbation of the lung disease. As such, the medical literature is not sufficient to support service connection in this matter because the literature does not indicate that a spontaneous pneumothorax causes COPD or emphysema. To the contrary, the submitted literature instead indicates that an atraumatic pneumothorax is typically caused by smoking in younger males or is the result of an acute exacerbation of an underlying lung disease in older patients. See December 2024 Correspondence. Moreover, no treating or examining physician of record has attributed the respiratory disorder to herbicide agent exposure or the pneumothorax during service.

The VA examiner in March 2012 opined
or emphysema, due to an acute exacerbation of the lung disease. As such, the medical literature is not sufficient to support service connection in this matter because the literature does not indicate that a spontaneous pneumothorax causes COPD or emphysema. To the contrary, the submitted literature instead indicates that an atraumatic pneumothorax is typically caused by smoking in younger males or is the result of an acute exacerbation of an underlying lung disease in older patients. See December 2024 Correspondence. Moreover, no treating or examining physician of record has attributed the respiratory disorder to herbicide agent exposure or the pneumothorax during service.

The VA examiner in March 2012 opined that the Veteran's respiratory disorder was less likely than not incurred in or directly related to service. The examiner reasoned that the Veteran had no history of diagnosis of a lung disease, but his current pulmonary function test (PFT) and chest X-ray findings suggested COPD. The examiner opined that the COPD was at least as likely as not due to the history of smoking as COPD findings on X-ray and obstructive PFT findings are common complications of tobacco abuse. As such, the VA examiner concluded that it is less likely than not that the COPD was related to the pneumothorax during service. See March 2012 VA Examination Report.

In a September 2024 opinion, the VA examiner opined that it is less likely than not that the COPD with emphysema is directly related to military service. The VA examiner explained that the spontaneous pneumothorax occurred in 1970, and the COPD/emphysema was first documented in 2012, 42 years later. Additionally, the examiner indicated that the medical literature did not support that the spontaneous pneumothorax or toxic exposures during service caused COPD and emphysema. The examiner opined that COPD and emphysema are more likely etiologically related to a post-service event, illness, or injury. See September 2024 VA Examination Report.

In a February 2025 addendum VA examination report, the VA examiner opined that it is less likely than not that the COPD and emphysema are related to the spontaneous pneumothorax during service. The VA examiner considered the medical articles submitted by the Veteran, but noted that the submitted literature speaks to a spontaneous pneumothorax in a person with COPD as due to an acute exacerbation, and notes that SSP is a medical emergency where the lung collapses in the presence of an underlying chronic lung disease, which does not support the Veteran's contention that the respiratory disorder is caused by a spontaneous pneumothorax. The examiner also noted that the submitted article speaks to COPD being highly prevalent in the ageing population exposed to tobacco smoke and airborne pollutants. The examiner indicated that a review of medical literature shows tobacco smoking, a direct inhalation of chemicals into the lungs, as a known risk factor for COPD and emphysema; however, the general medical literature did not show COPD, to include emphysema, as caused by a pneumothorax. See February 2025 VA Examination Report.

The VA examiner explained that the Veteran has been shown to be a multi-pack year smoker for over 40 years, which is a known risk factor for COPD to include emphysema. Moreover, a November 1970 Report of Medical Examination documented a negative chest x-ray and a history of pain in the right chest associated with the August 1970 spontaneous right pneumothorax. The VA examiner noted that the pneumothorax was successfully treated, and the evidence indicated that the Veteran was asymptomatic for two months thereafter. Moreover, review of the November 1970 separation report of medical examination documented shortness of breath and chest pain in reference to the spontaneous pneumothorax. The examiner explained that a residual shortness of breath and/or pain as related to the pneumothorax and/or the chest tube insertion in the months following the condition is within reason; however, the examiner indicated that pneumothorax does not cause COPD, so a nexus is not established. Id.

With regard to toxic exposures as an Aircraft Loadmaster and due to herbicide agent exposure, the VA examiner opined that it is less likely than not that the COPD with emphysema is related to such toxic exposures during service. The VA examiner explained that COPD is a term that includes emphysema. However, review of the medical literature showed inadequate or insufficient evidence of an association between exposure to herbicide agents or acetylene used in the flame for welding and the COPD, to include emphysema. The VA examiner noted that the medical literature identified the most important risk factor for noncancerous respiratory disorders, including COPD, as the inhalation of cigarette smoke. The examiner reiterated the evidence shows the Veteran was a multi-pack year smoker for greater than 40 years. As such, the examiner found no nexus between the COPD with emphysema and toxic exposures during service, to include herbicide agent exposure and toxins associated with duties as an Aircraft Loadmaster.

When considering the VA medical opinions in light of the evidence as a whole, the Board finds the VA medical opinions to be more probative on the question of causation of COPD with emphysema. The VA examiners considered the herbicide agent exposure during service, as well as the onset and course of the spontaneous pneumothorax during service but identified the remote post-service onset of COPD/emphysema 42 years after service separation as a factor that weighs against a nexus between the COPD/emphysema and service. The VA examiner in February 2025 also considered the medical literature submitted by the Veteran but noted that the submitted literature does not support a causal relationship between COPD with emphysema and spontaneous pneumothorax or herbicide agent exposure in this case. Moreover, the VA examiners considered the other prevalent risk factor in this case, namely the 40-year longitudinal history of smoking tobacco, which has been identified as a primary risk factor for the development of COPD and emphysema in medical literature, including literature submitted by the Veteran.

In this case, both treating and examining VA clinicians have attributed the Veteran's COPD with emphysema to the longitudinal history of smoking tobacco. See October 2020 VA treatment record; March 2012, February 2025 VA Examination Reports. The Board has considered the Veteran's lay testimony that he was provided with cigarette rations and encouraged to smoke basic training. However, during a May 2014 VA outpatient clinic encounter the Veteran reported a history of smoking since high school, prior to service entrance. See May 2014 VA treatment record, see also April 2022 Board Hearing Transcript. Moreover, to the extent that the Veteran was provided cigarette rations during basic training, for claims filed after June 9, 1998, Congress has prohibited the grant of service connection for a disability due to the use of tobacco products during active service. 38 U.S.C. §§ 1103(a), 1110; 38 C.F.R. § 3.300(a). The Veteran filed the current claim in 2014; therefore, this assertion of in-service smoking is against the claim for service connection as it suggests a nonservice-related etiology (prohibited as a matter of law and policy) for the claimed respiratory condition.

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether a respiratory disorder, to include COPD with emphysema, was incurred in or otherwise caused by or etiologically related to service, to include as directly related to herbicide agent exposure or the spontaneous pneumothorax during service. Rather, the evidence persuasively weighs against service connection for a respiratory disorder, including COPD and emphysema; therefore, the benefit of the doubt doctrine, see 38?U.S.C. §?5107(b), is not for application as to this claim. Lynch v. McDonough, 21 F.4th 776, 781-82 (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).

E. Blowers

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board S. Moore

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.

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