Citation Nr: 1327800 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 10-08 504A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to the service-connected scar, spontaneous right pneumothorax. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from December 1961 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the VA Regional Office (RO) in Portland, Oregon. FINDING OF FACT The Veteran has COPD that is as likely as not related to his active duty. CONCLUSION OF LAW The criteria for service connection for COPD have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the fully favorable determination in this case, no discussion of compliance with VA's duty to notify and assist is necessary. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Furthermore, any disability that is proximately due to or the result of a service-connected disease or injury is considered service connected, and when thus established, this secondary condition is considered a part of the original condition. 38 C.F.R. § 3.310(a). Additionally, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). The Veteran's service treatment records (STRs) show that he had a spontaneous right pneumothorax in May 1965. His October 1966 release from active duty examination showed clinically normal lungs and chest. The Veteran was afforded a VA examination in May 2008. He reported an eight to ten year history of progressive shortness of breath with exertional dyspnea and wheezing. He reported that he smoked cigarettes, one pack per day up until ten years ago. Apparently, he had no chronic cough or shortness of breath up to when he quit. He had smoked one pack per day since the age of 17. The Veteran was diagnosed with severe COPD. After reviewing diagnostic tests, the examiner opined that from the severe appearance of the bullous emphysema and the bilateral apical pleural thickening, it certainly suggested that the Veteran had a form of bullous emphysema at the time of his military service. At least it appeared that more likely than not that that was so, making his current severe COPD service-connected. At a VA examination in December 2008, a negative nexus opinion was provided. The examiner opined that it was at least as likely as not that the Veteran's severe COPD was primarily related to his cigarette smoking and not related to spontaneous pneumothorax nor the scar resulting from the chest tube. The Veteran was afforded another VA examination in November 2011. The examiner noted that there was at least 50 pack years of tobacco usage. He had quit smoking 14 years go. The Veteran reported having increasing shortness of breath around 2004. The examiner opined that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that smoking was a risk factor for spontaneous pneumothorax and for COPD. The correlation of developing COPD after smoking 50 pack years of tobacco was high, while it was unlikely that the previous pneumothorax in 1965 had little, if anything, to do with the development of COPD around 2004. Based on a review of the evidence, the Board concludes that service connection for COPD is warranted. The Veteran has a post-service diagnosis of COPD. When affording the Veteran the benefit-of-the-doubt, the evidence of record supports a finding that the Veteran's COPD is related to his service. In this case, the May 2008 VA examiner provided a positive nexus opinion. Even with the Veteran reporting his smoking history at that examination, the examiner still opined that the Veteran's COPD was related to his military service and not to his smoking history. The Board acknowledges the negative nexus opinions from the December 2008 and November 2011 examiners. However, neither of those examiners addressed the May 2008 examiner's finding regarding the severe appearance of the bullous emphysema and the bilateral apical pleural thickening, which that examiner opined certainly suggested that the Veteran had a form of bullous emphysema at the time of his military service, thereby rendering his COPD service related. Since the negative nexus opinions did not address that finding, the Board finds them less probative than the May 2008 examiner's positive opinion. Thus, after considering all of the evidence of record, the Board concludes that a finding of service connection is warranted. Service connection for COPD is, therefore, granted. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for COPD is granted. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs