CHRONIC OBSTRUCTIVE PULMONARY DISEASE (COPD)

Summary

The Veteran, an Air Force Veteran who served from January 1954 to January 1974, including service in Vietnam, Thailand, and Guam, appeals the denial of service connection for Chronic Obstructive Pulmonary Disease (COPD). The Veteran claims his COPD is due to in-service exposure to Agent Orange. The Board found that new and relevant evidence was submitted, warranting readjudication. The Veteran was diagnosed with COPD in November 2003, over 25 years after service. Service treatment records from active duty showed normal lung evaluations, though he reported a chronic cough and had upper respiratory infections. Post-service examinations in 1974 and 2021 also noted normal respiratory findings or offered negative etiological opinions regarding service connection. A private PA's 2023 statement diagnosed COPD and noted Agent Orange exposure but did not link it to the condition. The Board found the evidence persuasively weighed against a service connection for COPD, noting the significant time lapse between service and diagnosis, the negative findings in service and post-service examinations, and the lack of a nexus opinion from the private PA. The Board acknowledged the Veteran's lay assertions and presumed herbicide exposure but concluded the evidence did not support service connection. Therefore, service connection for COPD was denied.

Rationale

Evidence persuasively against service connection; COPD diagnosed over 25 years after service; Negative etiological opinion from VA examiner; Private PA statement lacked nexus to service

Full Decision Text

Citation Nr: A26040728
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 240429-435858
DATE: April 30, 2026

ORDER

New and relevant evidence having been received, the petition for readjudication of the claim of service connection for service connection for chronic obstructive pulmonary disease (COPD) is granted.

Entitlement to service connection for COPD is denied.

FINDINGS OF FACT

1. New evidence was received after the February 2021 denial that is relevant to the issue of entitlement to service connection for COPD.

2. It is presumed that the Veteran was exposed to herbicides during active service.

3. 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 and weighs against a finding that COPD is due to in-service exposure to herbicides.

CONCLUSIONS OF LAW

1. The criteria for readjudicating the claim of service connection for COPD have been met.  38 C.F.R. § 3.156(d).

2. The criteria for service connection for COPD have not been met.  38 U.S.C. §§ 1110, 1113, 1116, 1131; 38 C.F.R. §§ 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service in the United States Air Force from January 1954 to January 1974.

In an April 2024 rating decision, the Agency of Original Jurisdiction (AOJ) determined that new and relevant evidence had not been received to reopen the claim of entitlement to service connection for COPD.  In the April 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.  Therefore, the Board could only consider the evidence of record at the time of the April 2024 AOJ decision on appeal.  38 C.F.R. § 20.301.  Any evidence submitted after the AOJ decision on appeal could not be considered by the Board.  38 C.F.R. §§ 20.300, 20.301, 20.801.  

In a December 2024 decision, the Board determined that new and relevant evidence had not been received to reopen the claim of entitlement to service connection for COPD.  The Veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court).  Pursuant to a November 2025 Joint Motion for Remand (JMR) and December 2025 Court Order, the Board's decision was vacated and remanded for action consistent with the JMR.  As will detailed below, this Board has determined that new and relevant evidence has been received to reopen the claim of service connection for COPD.  As the Board is remanding the claim of service connection on the merits, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claim.  38 C.F.R. § 3.103(c)(2)(ii). 

New & Relevant Evidence

Evidence has been received in support of the claim of service connection for COPD that is new and relevant and warrants readjudication of the issue.  

VA will readjudicate a claim if new and relevant evidence is presented or secured.  38 C.F.R. § 3.156(d).  "Relevant evidence" is evidence that tends to prove or disprove a matter in issue.  38 C.F.R. § 3.2501(a)(1)).

The question in this case is whether the Veteran submitted evidence after the prior final denial of the claim of service connection for COPD and if so, whether that evidence is new and relevant to the claim.  

In June 2020, the Veteran filed a claim of service connection for COPD.  Service treatment records and VA treatment records were associated with the claims folder, and the Veteran was afforded a C&P examination in January 2021 wherein a negative etiological opinion was proffered.  In a February 2021 rating decision, it was determined that while a diagnosis of COPD was shown, specifically in July 2013, his COPD was not due to service.  The Veteran did not file a notice of disagreement, and no new evidence was received within a year of submission of the rating decision.  38 U.S.C. § 7105.  The February 2021 rating decision is final.  

In March 2024, the Veteran filed a supplemental claim to reopen service connection for COPD.  The Veteran asserts his COPD is due to in-service exposure to herbicides.
 Veteran was afforded a C&P examination in January 2021 wherein a negative etiological opinion was proffered.  In a February 2021 rating decision, it was determined that while a diagnosis of COPD was shown, specifically in July 2013, his COPD was not due to service.  The Veteran did not file a notice of disagreement, and no new evidence was received within a year of submission of the rating decision.  38 U.S.C. § 7105.  The February 2021 rating decision is final.  

In March 2024, the Veteran filed a supplemental claim to reopen service connection for COPD.  The Veteran asserts his COPD is due to in-service exposure to herbicides.  

In support of his claim, the Veteran submitted a September 2023 statement from a private Physician's Assistant (PA) which reflects that the Veteran has diagnoses of COPD and hypoxemia.  The examiner noted that he served in Thailand, Vietnam and Guam and was repeatedly exposed to Agent Orange.  The examiner stated that he was diagnosed with COPD in November 2003 and became oxygen dependent in April 2022.  He now has pulmonary cachexia with comparable weight loss.  09/27/2023 Medical Treatment Record-Non-Government Facility.  

Such medical evidence reflects a diagnosis of COPD in November 2003, rather than in July 2013, as reflected in the February 2021 rating decision, thus approximately 10 years prior.  Also, the Veteran has asserted that he has COPD due to exposure to herbicides and his exposure is presumed.

Given the above, new and relevant evidence has been received and the petition for readjudication of the claim of service connection for COPD is therefore granted.

  

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.  The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).  Service connection may also be granted for a disease first 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).  

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96.  

Regarding service connection due to Agent Orange exposure, VA laws and regulations provide that if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected.  38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.309 (e).  A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to Agent Orange.  38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii).  The evidence of record reflects that the Veteran had service in the Republic of Vietnam, thus it is presumed that he was exposed to Agent Orange during active service.  08/17/2020 DD 215 Corrected DD Form 214 Certificate of Release or Discharge From Active Duty; 04/02/2024 other.  

If a veteran was exposed to a herbicide agent during active military, naval, or air service, certain 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
3.307 (a)(6)(iii).  The evidence of record reflects that the Veteran had service in the Republic of Vietnam, thus it is presumed that he was exposed to Agent Orange during active service.  08/17/2020 DD 215 Corrected DD Form 214 Certificate of Release or Discharge From Active Duty; 04/02/2024 other.  

If a veteran was exposed to a herbicide agent during active military, naval, or air service, certain 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; 38 C.F.R. § 3.307 (d) are also satisfied.  38 C.F.R. § 3.309 (e).  Such diseases include, among others, respiratory cancer, including cancer of the lung.  38 C.F.R. § 3.309 (e).  As will be detailed below, however, a respiratory cancer has not been diagnosed.

In a 2010 update on possible relationships between Agent Orange exposure and diseases as determined by the National Academy of Sciences (NAS), VA wrote, "NAS noted that two new studies reported statistically significant evidence of association between herbicide exposure and chronic obstructive pulmonary disease (COPD)."  See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47924, 47,927 (Aug. 10, 2012).  In the Veterans and Agent Orange: Update 2014, however, the NAS concluded that there is "inadequate or insufficient evidence of an association between exposure to the COIs and the prevalence of respiratory diseases, such as wheeze or asthma, COPD, and farmer's lung."  See Veterans and Agent Orange: Update 2014 (March 10, 2016).  Notably, the NAS reports are "based on general statistics and used for purposes of determining whether there is sufficient nexus between a disease and Agent Orange to warrant placing the disease on the list of presumptive diseases."  Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009).

Notwithstanding the foregoing, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  The rationale employed in Combee also applies to claims based on exposure to Agent Orange.  Brock v. Brown, 10 Vet. App. 155, 160 (1997).

The Veteran asserts that he has COPD directly due to his military service, specifically exposure to Agent Orange. 

An April 1961 service treatment record reflects viral pharyngitis.  June 1961, April 1963, June 1964, and July 1965 Reports of Medical Examination reflect that his 'lungs and chest' were clinically evaluated as normal.  A July 1965 electrocardiograph was normal.  A December 1965 service treatment record reflects treatment for an upper respiratory infection.  A June 1966 service treatment record reflects pharyngitis, acute, bacterial.  June 1966, June 1967, September 1968, July 1969, July 1970 Reports of Medical Examination reflect that his 'lungs and chest' were clinically evaluated as normal.  October 1970 and November 1970 service treatment records reflect acute, diffuse upper respiratory infection, organism unknown.  A November 1970 service treatment record reflects upper respiratory infection resolved.  March and April 1971 service treatment records reflect acute, diffuse, upper respiratory infection, organism undetermined.  June 1971, June 1972, and October 1972 Reports of Medical Examination reflect that his 'lungs and chest' were clinically evaluated as normal.  January 1972, October 1972, and June 1973 electrocardiographs were normal.  A June 1973 chest x-ray was within normal limits.  A June 1973 Report of Medical Examination conducted for retirement purposes reflects that his 'lungs and chest' were clinically evaluated as normal.
 reflect acute, diffuse upper respiratory infection, organism unknown.  A November 1970 service treatment record reflects upper respiratory infection resolved.  March and April 1971 service treatment records reflect acute, diffuse, upper respiratory infection, organism undetermined.  June 1971, June 1972, and October 1972 Reports of Medical Examination reflect that his 'lungs and chest' were clinically evaluated as normal.  January 1972, October 1972, and June 1973 electrocardiographs were normal.  A June 1973 chest x-ray was within normal limits.  A June 1973 Report of Medical Examination conducted for retirement purposes reflects that his 'lungs and chest' were clinically evaluated as normal.  On a June 1973 Report of Medical History, the Veteran checked the 'No' box for 'shortness of breath' and the 'Yes' box for 'chronic cough.'  The examiner noted that this was first noted in 1968 with no treatment required and no complications, no sequelae (NCNS).  

Post-service, a May 1974 VA Examination reflects that the Veteran's respiratory system was clear to percussion and auscultation throughout with normal contour of chest with expansion free and equal bilaterally.  05/09/1974 VA Examination.

A March 2020 VA Agent Orange Registry Exam reflects a report of that he has shortness of breath and believed that it is related to Agent Orange exposure.  He was diagnosed with COPD about 20 years ago.  The impression was COPD, and the examiner noted diagnoses with possible association with Agent Orange exposure: None. 07/07/2020 CAPRI.

In January 2021, the Veteran underwent a C&P examination wherein the examiner diagnosed COPD, diagnosed in July 2013, and emphysema, diagnosed in March 2018.  The Veteran reported that he had been dealing with shortness of breath and cough since active duty.  He reported that his capacity to breathe had decreased.  He had shortness of breath at rest and with mild exertion.  He had a history of smoking for 30 years.  His primary care conducted a breathing test.  He reported taking breathing treatments daily.  The examiner proffered a negative etiological opinion.  The examiner opined that the Veteran has a diagnosis of COPD that is less likely than not (50 percent or greater probability) incurred in or caused by (the) cough and chest pain during service.  The examiner acknowledged that a July 2013 treatment record reflects complaints of shortness of breath with exertion and reported medications of Spiriva, Combivent and Asthmax; and a March 2020 lateral chest x-ray shows hyperinflation compatible with COPD and/or bronchospasm.  The examiner also acknowledged the March 2020 Agent Orange registry exam with regard to the diagnosis of COPD and the examiner stated there is no diagnosis related to Agent Orange that would have affected the lung condition.  He had a 1.5 pack per day/ 30-year history of smoking.  There are no treatment records during active duty.

In support of his claim, the Veteran submitted a September 2023 statement from a private PA which reflects diagnoses of COPD and hypoxemia.  The examiner noted that he served in Thailand, Vietnam, and Guam and was repeatedly exposed to Agent Orange.  The examiner stated that he was diagnosed with COPD in November 2003 and became oxygen dependent in April 2022.  He now has pulmonary cachexia with comparable weight loss.  09/27/2023 Medical Treatment Record-Non-Government Facility.  

Based on review of the record, the Board finds that the evidence of record is persuasively against a finding that COPD is due to active service, to include exposure to herbicides.  As detailed above, COPD was not diagnosed during active service, although as detailed the Veteran suffered from upper respiratory infections and pharyngitis.  On retirement, however, his lungs and chest were clinically evaluated as normal, and while he reported a chronic cough the examiner determined that no treatment was provided with no NCNS.  Moreover, on examination in May 1974 his respiratory system was normal.  As detailed, COPD was initially diagnosed on or about 2000 (in March 2020 the Veteran reported that COPD was diagnosed about 20 years ago) although the PA stated that COPD was diagnosed in November 2003.  In any case, COPD was diagnosed over 25 years after separation from service.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim).  Based
 that no treatment was provided with no NCNS.  Moreover, on examination in May 1974 his respiratory system was normal.  As detailed, COPD was initially diagnosed on or about 2000 (in March 2020 the Veteran reported that COPD was diagnosed about 20 years ago) although the PA stated that COPD was diagnosed in November 2003.  In any case, COPD was diagnosed over 25 years after separation from service.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim).  Based on the Veteran's lay assertions, his in-service complaints and treatment, and presumed exposure to herbicides, he was afforded an examination in January 2021 wherein the examiner proffered a negative etiological opinion.  The examiner considered the service treatment records and acknowledged his exposure to herbicides, but proffered a negative etiological opinion which contained a rationale for the medical conclusion.  See Boggs v. West, 11 Vet. App. 334 (1998).  As the opinion was based on a review of the applicable record, the Board finds such opinion is probative and material to the Veteran's claim.  See Owens v. Brown, 7 Vet. App. 429 (1995).

The Board acknowledges the September 2023 statement from the PA.  However, while this examiner indicated his diagnosis of COPD and acknowledged the Veteran's in-service exposure to Agent Orange the examiner did not relate his COPD to his in-service exposure to herbicides.  Thus, such statement does not provide support for an etiological relationship to service. 

The Board acknowledges that the Veteran is competent to describe respiratory symptoms during service and following service and acknowledges his lay statements.  While the Veteran is competent to report having experienced respiratory symptoms and competent to attest to his exposure to herbicides, he is not competent to provide a diagnosis in this case nor determine the etiology of the diagnosed disability.  Based on the Veteran's lay assertions, the in-service complaints and treatment, and presumed exposure to herbicides, an opinion was sought which was negative.  While he may believe that he has COPD due to service, to include exposure to herbicides, the persuasive evidence weighs against finding that his COPD is due to service and such exposures.  The Veteran is not competent to provide a nexus opinion regarding this issue.  The issue is medically complex and requires knowledge of pathology.  Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination.  Jandreau v. Nicholson, 492 F.3d 1372, 1377; see Kahana v. Shinseki, 24. Vet. App. 428 (2011).

In conclusion, the most probative, competent evidence is against a link between COPD and the Veteran's active service.  Accordingly, the evidence is persuasively against the claim.  As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for COPD is not warranted.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 

 

Eric S. Leboff

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Kreindler, Marcy W.

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.