Citation Nr: 1308541 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 05-16 668 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to the service-connected histoplasmosis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran had active military service from June 1960 to June 1968 and from July 1969 to July 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran did not appear at a scheduled for a video conference hearing before a Veterans Law Judge in July 2010 and provided no explanation for his failure to appear. Accordingly, his request for a hearing is considered to be withdrawn and adjudicate of the case will proceed based on the evidence of record. See 38 C.F.R. § 20.704 (d), (e) (2012). The case was remanded by the Board in August 2010 and July 2012 for further evidentiary development. That development having been completed, the issue is properly before the Board for adjudication. FINDING OF FACT Medical evidence of record indicates that the Veteran's COPD was incurred during his second period of active service. CONCLUSION OF LAW COPD was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board notes that regulations require VA to notify claimants and their representatives of any information that is necessary to substantiate a claim for benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159(b), 3.326(a) (2012). As the Veteran's claim for entitlement to service connection for COPD is granted herein, any deficiencies with regard to notice for this issue are harmless and non-prejudicial. In this case, the Veteran alleges that he has a current diagnosis of COPD which was either incurred during active service, or causally-related to his service-connected histoplasmosis. In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). The Court held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See generally Hickson v. West, 12 Vet. App. 247, 253 (1999). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). It is also significant to note that for claims received by VA after June 9, 1998, a disability or death will not be considered service-connected on the basis that it resulted from injury or disease attributable to a veteran's use of tobacco products during service. 38 C.F.R. § 3.300(a) (2012). The provisions of § 3.300(a), however, do not prohibit service connection if the disability resulted from a disease that can be service-connected on some basis other than a veteran's use of tobacco products during service, or if the disability became manifest during service. 38 C.F.R. § 3.300(b)(1). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2012). At the outset, the Board notes that the Veteran has a current diagnosis of COPD. See VA examination report, September 2010. Thus, element (1) of Hickson has been satisfied for the claim on appeal, in that the Veteran has demonstrated that he has current diagnoses for his claimed disorder. Turning to the question of in-service disease or injury, service treatment records include a November 1980 pulmonary function test (PFT). The interpretation of the November 1980 report suggested combined restrictive and obstructive airway disease. The Board notes that the Veteran's post-service medical history is replete with complaints of respiratory difficulty. Private treatment reports demonstrate that the Veteran was diagnosed with COPD in January 2003, though no etiological opinion was provided at that time. In conjunction with his claim, the Veteran was afforded a VA examination in May 2003. At that time, it was noted that his initial COPD diagnosis was provided two years prior. The Veteran further reported that he had experienced trouble breathing while stationed at McChord Air Force Base, and that while he was found to have histoplasmosis his breathing difficulty at that time may have been related to undiagnosed COPD. The examiner indicated that the Veteran was a smoker of 1-2 packs of cigarettes per day for more than 25 years, and that he had quit 10-15 years prior. After a review of the Veteran's medical record, as well as his service treatment history, the examiner determined that there was no evidence of a COPD diagnosis in the service medical records. Following this examination, additional service medical records were associated with the claim file, to include the November 1980 PFT. Based on this new evidence, the Veteran's claim was remanded by the Board in August 2010 for a new VA examination, conducted the following month in September 2010. Following an examination and a review of the record, the examiner determined that it was less likely than not that the Veteran's COPD was caused by his service-connected histoplasmosis. Instead, per the examiner, his COPD was most likely the result of cigarette smoking. In July 2012, the Veteran's claim was remanded by the Board a second time because the September 2010 examiner failed to address the November 1980 PFT, and also failed to state whether COPD may have been aggravated by histoplasmosis. As such, an addendum opinion was authored in July 2012. The examiner noted that the November 1980 PFT demonstrated obstruction without evidence of restriction, and again simply stated that the Veteran's COPD was most likely the result of smoking and not histoplasmosis. The Appeals Management Center (AMC) correctly found that this addendum opinion was also deficient in September 2012, and returned the claim file to the examiner for an additional addendum. In October 2012, the examiner determined that the Veteran had manifestations of COPD while in the service, based on complaints of shortness of breath, and that PFTs from May 1980 supported this diagnosis. It was further noted that the Veteran's COPD was most likely the result of cigarette smoking, and that histoplasmosis most likely had no effect on the Veteran's respiratory status. Based on this opinion, the AMC continued the denial of the Veteran's claim in October 2012, finding that because COPD was linked to cigarette smoking, service connection was not permitted pursuant to 38 C.F.R. § 3.300. However, in its analysis, the AMC failed to include a discussion of 3.300(b)(1) which, as indicated above, does not prohibit service connection if the disability became manifest during service. 38 C.F.R. § 3.300(b)(1). Here, the October 2012 addendum opinion clearly indicated that COPD was manifest during the Veteran's second period of active duty, based on numerous in-service complaints and supported by pulmonary testing at that time. Although linked to a long history of cigarette smoking, because COPD originated during active service, 3.300(b)(1) is for application in this instance. As such, the Board affords the Veteran all reasonable doubt and finds that at the very least, there exists, at the least, an approximate balance of evidence for and against the Veteran's claim. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the appellant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). Accordingly, with resolution of doubt in the Veteran's favor, the Board concludes that a grant of service connection for a COPD is warranted based on in-service occurrence of this disability. Because service connection is granted on a direct basis, a discussion of the Veteran's additional theory of entitlement is not necessary. ORDER Entitlement to service connection for COPD is granted. ____________________________________________ T. L. Douglas Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs