Citation Nr: 1335545 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-46 235 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a pulmonary disorder, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a total rating based upon individual unemployability (TDIU) due to a service-connected disability, prior to September 7, 2010. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran had active service from July 1977 to July 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In a May 2012 Decision, the Board denied a separate claim for service connection for a low back disorder and fully adjudicated a claim for an increased rating for PTSD. Therefore, those issues are no longer in appellate status. In the same document, the Board remanded the Veteran's claims for service connection for a pulmonary disorder and entitlement to a TDIU to the Appeals Management Center (AMC) for development. The Veteran requested a hearing before the Board in his November 2009 Substantive Appeal. Subsequently, the Veteran requested a hearing at the RO, before a Decision Review Officer (DRO hearing). A DRO hearing was held in July 2010. A transcript of that hearing has been procured for the record. In June 2011, the Veteran submitted a statement indicating that he no longer wanted a hearing before the Board. Therefore, the Board considers the Board hearing request cancelled, and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R.§ 20.704 (2012). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT The evidence does not show that the Veteran's currently diagnosed pulmonary disorder, specifically chronic obstructive pulmonary disorder (COPD), is related to military service or to his service connected PTSD. CONCLUSION OF LAW The Veteran's pulmonary disorder was not incurred or aggravated in service, and was not due to, or the result of, or chronically aggravated by a service connected disability. 38 U.S.C.A. §§ 1101, 1103, 1110, 1112, 1113, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.300(a), 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Introductory Matters In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."), and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d) (West 2002 & Supp. 2012); see also 38 C.F.R. § 19.7 (2012) (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify a veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must be provided to the veteran prior to the initial adjudication of his or her claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). VA mostly satisfied its duty to notify the Veteran by issuing a notice letter in June 2008. In that letter, VA informed the Veteran about the information and evidence not of record that was necessary to substantiate the claim; the information and evidence that VA would seek to provide; the information and evidence the Veteran was expected to provide; and the information regarding disability ratings and effective dates required by Dingess. The June 2008 letter did not advise the Veteran of how to substantiate a claim for secondary service connection. Although he was not service connected for PTSD at the time of the July 2010 DRO hearing, he demonstrated actual knowledge of the requirements of a secondary service connection claim because he testified that his PTSD caused his claimed pulmonary disorder. Specifically he asserted that his PTSD caused him to abuse tobacco and that his tobacco usage caused a current pulmonary disorder. He has shown that he is aware that he must show a link between his currently diagnosed pulmonary disorder and a service-connected disability. Notwithstanding this content error, the Veteran has neither alleged nor proven that prejudice resulted from lack of formal notice of the requirements for substantiating a secondary service connection claim and, therefore, the Board determines that none resulted. See Shinseki v. Sanders, 129 S. Ct. 1696, 1704, 1705, 1706 (2009) (noting that "the party that seeks to have a judgment set aside because of an erroneous ruling carries the burden of showing that prejudice resulted"). The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records, reports of post-service medical treatment, Social Security Administration (SSA) records, and a report of a VA medical examination provided in May 2012. In the May 2012 VA medical examination report, a VA examiner, after a review of all evidence, lay and medical, provided an opinion regarding the etiology of the claimed pulmonary disorder. Therefore, the Board finds that the VA medical examination report has probative value in this matter. See Prejean v. West, 13 Vet. App. 444, 448 (2000) (indicating that the Board may determine the probative value of medical opinions based on their detail, the persuasiveness of their opinions, and the physicians' access to a veteran's medical records). The record indicates that the AMC complied with the May 2012 Remand requests, by issuing a requested notice letter asking the Veteran about outstanding medical records, and providing the May 2012 VA medical examination. VA has fulfilled its duty to assist the Veteran by providing the Veteran with proper notice, procuring the required medical records, and providing the Veteran with a proper VA medical examination. Therefore, the Board finds that the AMC complied with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has not made VA aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655 (2012), all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). 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.A. § 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of 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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a non service-connected disability which is aggravated by a service connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard. See Walker v. Shinseki, 708 F.3d. 1331, 1339 (Fed. Cir. 2013) (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). Of note, the Veteran's claimed pulmonary disorder, diagnosed as COPD, is not one of the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Therefore, the provisions noted for listed chronic diseases do not apply. The law provides that a disability 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. See 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300(a). Service connection for a tobacco-related disability alleged to be secondary to a disability that is not service-connected on the basis of being attributable to a veteran's use of tobacco products during service may be warranted if the following criteria are met: (1) the service-connected disability caused a veteran to use tobacco products after service; (2) if so, the use of tobacco products as a result of the service-connected disability was a substantial factor in causing a secondary disability; and (3) the secondary disability would not have occurred but for the use of tobacco products caused by the service-connected disability. VAOPGCPREC 6-2003. In all cases, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the veteran, the Court holding that medical opinion not required to prove nexus between service-connected mental disorder and drowning which caused veteran's death). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Gober, 125 F.3d 1477, 1481 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert, 1 Vet. App. at 49. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Board has considered all evidence of record as it bears on the question of service connection. See 38 U.S.C.A. § 7104(a) ("Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) ("Secretary shall consider all information and lay and medical evidence of record in a case"). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The U.S. Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's appeal. Service Connection for a Pulmonary Disorder The Board finds that the preponderance of the evidence weighs against a grant of service connection for a pulmonary disorder. The Veteran claims that his pulmonary disorder was caused by his habit of smoking tobacco to cope with his service-connected PTSD symptomatology. The record indicates that the Veteran was diagnosed with PTSD related to an in-service event during which the Veteran witnessed a plane crash aboard the U.S.S. Nimitz, killing 14 crewmen. The Board takes judicial notice that this event occurred on May 26, 1981, approximately one-and-a-half months prior to the Veteran's July 5, 1981 discharge from service. Reviewing the service treatment records, in a July 1977 service entrance medical examination report, a service examiner noted that the Veteran's lungs and chest were normal. The service treatment records contain no notation indicating treatment or diagnosis for pulmonary disorder symptomatology. In the Veteran's June 1981 service discharge medical examination report, a service examiner noted that the Veteran's lungs and chest were normal. Reviewing the post-service evidence, in a January 2008 VA treatment record, a VA examiner noted that a chest X-ray showed upper lobe bullous disease compatible with COPD and evidence of prior granulomatous disease. In a February 2008 VA treatment record, the Veteran stated that he had been diagnosed with emphysema and had stopped smoking since learning of the diagnosis. In a June 2008 VA treatment record, the Veteran reported having an extensive history of substance abuse. The Veteran stated that he first started using alcohol in 1977, the year of his entry into service. The Veteran stated that he drank a six-pack of beer per day and drank whiskey at regular intervals before quitting in December 2007. The Veteran indicated that he started using marijuana during service in 1980. The Veteran indicated that he would smoke a "joint" of marijuana on a regular basis prior to quitting in December 2007. The Veteran stated that he started using cocaine in 1984. The Veteran indicated that he would consume one-quarter of an ounce of cocaine each week prior to quitting in December 2007. The Veteran also reported using hallucinogens from 1981 to 1985. In a May 2008 VA treatment record, the Veteran stated that he had smoked cigarettes for the previous 31 years, smoking a pack per day before quitting in February 2008. The Veteran stated that he had a problem with alcohol abuse during service. In an October 2008 VA psychiatric examination report, the Veteran stated that he began smoking tobacco during service and that he averaged about one-pack of cigarettes per day. The Veteran indicated that he continued to smoke despite the advice of his treating physicians. The Veteran indicated that he also started drinking alcohol during service when he was 18-years-old. The Veteran stated that drinking large quantities of alcohol was "the only way I could cope ... with all the strain and pressure they put you through" in service. The Veteran stated that his alcohol usage increased after the plane crash on the U.S.S. Nimitz. The Veteran indicated that, after that event, he also started using drugs. The Veteran stated that he started smoking crack cocaine in 1984, in part, to self-medicate for the trauma he experienced related to the plane crash. When asked by the examiner when he started using marijuana, the Veteran indicated that he began using that drug "after basic training," but indicated that he did not use it regularly until after the plane crash. The Veteran stated that, after the crash, he started smoking marijuana every day. In a February 2009 VA treatment record, the Veteran stated that he had smoked a half-pack of cigarettes every day for 30 years. In a November 2009 lay statement, the Veteran wrote that he smoked "cigarettes and dope to handle the stress" of service. The Veteran indicated that he had been diagnosed with COPD which was "a disease that gradually gets worse" and service "was where I started smoking so I am asking for service connection ...." At the July 2010 DRO hearing, the Veteran stated that he "started smoking after I was getting over this problem with maybe getting killed" during service. The Veteran said "I wasn't a smoker during service. It just got on my nerves so that, you know, I just started smoking." The Veteran stated that his PTSD caused him to smoke "because that's the way I cope with it." In a September 2010 VA psychiatric examination report, the Veteran stated that he smoked one-pack of cigarettes per day as well as a quarter-ounce of marijuana weekly. The Veteran indicated that he still used cocaine "every once in a while," but would not quantify his usage. The Veteran acknowledged that his usage was aggravating his COPD. In a June 2012 VA medical examination report, the Veteran reported having been diagnosed with COPD and indicated that he was treating the disorder through usage of inhalers and nasal sprays. After the performance of a chest X-ray study and pulmonary functioning testing, the VA examiner diagnosed COPD. Having interviewed the Veteran, performed an examination, and reviewed the claims file, the VA examiner found that the Veteran's diagnosed COPD was less likely than not proximately due to or the result of the Veteran's service-connected PTSD. In explaining this opinion, the VA examiner noted that the Veteran had been diagnosed with PTSD related to the 1981 plane crash aboard the U.S.S. Nimitz. The Veteran was contending that the trauma related to this stressor caused him to smoke after service, resulting in his COPD diagnosis. However, in reviewing the claims file, the VA examiner noted that the claims file contained statements from the Veteran indicating that he started to smoke prior to the 1981 plane crash. The VA examiner noted that, in a recent VA psychiatric admission report, the Veteran stated that he started smoking in 1977 when he was 18 years old, four years prior to the plane crash. The VA examiner also indicated that there was no medical research supporting the Veteran's claim that PTSD caused tobacco abuse and, thereby, caused COPD. The VA examiner noted that many people smoked tobacco to relieve stress, just as many people did not smoke to relieve stress. The VA examiner also indicated that smoking was not the only cause of COPD. Therefore, the VA examiner indicated that the Veteran's PTSD was not the cause of the Veteran's COPD as the PTSD was not related to the Veteran's choice to smoke cigarettes. The VA examiner noted that the Veteran had been offered many opportunities to stop smoking cigarettes, to include assistance from VA examiners, but had refused. The VA examiner again noted that the Veteran started smoking four years before the plane crash which resulted in PTSD. The preponderance of evidence weighs against the Veteran's claim for service connection for a pulmonary disorder. First, the evidence weighs against an award from service connection for a pulmonary disorder on a direct basis. The medical evidence, to include the service treatment records, does not include any notation suggesting pulmonary disorder onset during service. The record does not contain a medical opinion suggesting a direct nexus between the Veteran's currently diagnosed COPD and service. The record contains many statements and treatment records in which the Veteran stated that he started smoking during service. For example, in a May 2008 VA treatment record, the Veteran indicated that he started smoking in approximately 1977, around the time of his entry into service. Subsequently, in a February 2009 VA treatment record, the Veteran indicated that he started smoking in approximately 1979, two years into his four year period of service. In a November 2009 lay statement, the Veteran essentially indicated that he believed that VA should grant his claim for service connection for COPD because he started smoking cigarettes to " to handle the stress" of service. The Veteran indicated that he believed that he should be service connected for COPD because service "was where I started smoking ...." Even if the Veteran began smoking cigarettes as a method of coping with the normal stresses of life during service, VA regulations prohibit the Board from granting service connection for a disorder caused by in-service cigarette smoking. The law specifically provides that a disability 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. See 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300(a). The record does not contain a medical opinion indicating that the Veteran's cigarette habit caused his current COPD disorder. However, even if the Veteran's COPD were found to be related exclusively to in-service tobacco smoking, VA regulations would prohibit the granting of service connection for COPD. Therefore, the evidence weighs against a grant of service connection for a pulmonary disorder on a direct basis. The Board also finds that the evidence weighs against a granting of service connection for a pulmonary disorder, secondary to the Veteran's PTSD. Service connection may be granted for a nonservice-connected tobacco-related disability secondary to a service-connected disability if: (1) the service-connected disability caused a veteran to use tobacco products after service; (2) if so, the use of tobacco products as a result of the service-connected disability was a substantial factor in causing a secondary disability; and (3) the secondary disability would not have occurred but for the use of tobacco products caused by the service-connected disability. VAOPGCPREC 6-2003. At the July 2010 DRO hearing, the Veteran stated that he smoked as a means of coping with his service-connected PTSD. During this testimony, the Veteran tested that he was not "a smoker during service," but that he started smoking after the events that caused his PTSD. The Board finds that the Veteran's July 2010 testimony, indicating that he started smoking cigarettes only as a means of coping with his PTSD, is so inconsistent with the other evidence of record as to lack credibility. See Caluza, 7 Vet. App. at 511-12. The event which caused the Veteran's PTSD occurred in late May 1981, only about a month-and-a-half prior to the Veteran's July 1981 discharge from service. At the July 2010 DRO hearing, the Veteran testified that he started smoking as a means of coping with this incident. However, in a May 2008 VA treatment record, the Veteran indicated that he started smoking in approximately 1977, four years prior to the incident. Subsequently, in a February 2009 VA treatment record, the Veteran indicated that he started smoking in approximately 1979, two years prior to the incident. Moreover, in most of the statements and treatment records in which the Veteran described the impact his PTSD has had on his life, the Veteran did not make any indication that his tobacco smoking was caused or worsened by his PTSD. For example, in an October 2008 VA psychiatric examination report, the Veteran indicated that he started smoking a pack of cigarettes per day during service, but did not indicate any particular reason for his decision to start smoking. By contrast, in that same examination report, the Veteran specifically stated that he started drinking alcohol and smoking marijuana in excessive quantities after the 1981 plane crash incident. The Veteran also stated that he began using crack cocaine in 1984 as a means of coping with the trauma related to that plane crash. In a subsequent November 2009 lay statement, the Veteran specifically stated that his PTSD caused him to be an "alcoholic" and a "big drug user." Yet, in the same statement, the Veteran indicated that he started smoking cigarettes during service to handle the stress of service. The Veteran did not make any indication that the "stress" to which he was referring was in any way related to trauma he experienced due to an event which occurred only a month-and-a-half prior to his discharge from service. Moreover, in most of the statements of record, the Veteran did not indicate that his tobacco smoking even worsened due to his PTSD. With the exception of a single February 2009 treatment record, in which the Veteran claimed to have smoked only half-a-pack of cigarettes per day, the Veteran has claimed to have smoked a pack of cigarettes per day since he started smoking prior to the stressor incident. Outside of the Veteran's statements at the July 2010 DRO hearing, in which the Veteran stated that he was not a smoker during service, the lay evidence of record indicates that the Veteran has smoked consistently at the same rate since some point in service prior to 1981. Therefore, the Board finds that the Veteran's July 2010 testimony, indicating that he started smoking cigarettes only as a means of coping with his PTSD, is so inconsistent with the other evidence of record as to lack credibility. See id. Finally, in the May 2012 VA medical examination report, the VA examiner noted performing a thorough examination and diagnosing COPD. Having interviewed the Veteran, performed an examination, and reviewed the claims file, the VA examiner found that the Veteran's diagnosed COPD was less likely than not proximately due to or the result of the Veteran's service-connected PTSD. In explaining this opinion, the VA examiner noted that the Veteran had stated that he started smoking as a means of coping with the trauma of witnessing the 1981 plane crash. The VA examiner further noted that the Veteran's statements were inconsistent with the Veteran's other statements made to medical professionals in which he maintained that he started smoking prior to the plane crash. The VA examiner also indicated that there was no medical research supporting the Veteran's claim that PTSD caused tobacco abuse and, thereby, caused COPD. The VA examiner noted that many people smoked tobacco to relieve stress, just as many people did not smoke to relieve stress. The VA examiner also indicated that smoking was not the only cause of COPD so a nexus could not even be made for causation. Therefore, the VA examiner found that it was less likely than not that the Veteran's COPD was related to his PTSD. As noted above, the Board finds that this opinion has probative value in this matter. See Prejean, 13 Vet. App. at 448. As noted above, service connection may be granted for a nonservice-connected tobacco-related disability secondary to a service-connected disability if: (1) the service-connected disability caused a veteran to use tobacco products after service; (2) if so, the use of tobacco products as a result of the service-connected disability was a substantial factor in causing a secondary disability; and (3) the secondary disability would not have occurred but for the use of tobacco products caused by the service-connected disability. VAOPGCPREC 6-2003. In this instance, the weight of the evidence of record does not indicate that the Veteran's PTSD caused the Veteran to smoke cigarettes, that the Veteran's smoking habit was a substantial factor in causing the Veteran's COPD, or that the COPD would not have occurred had the Veteran not continued smoking. Therefore, the weight of the evidence is against a granting of service connection for COPD, secondary to tobacco smoking related to the Veteran's service-connected PTSD. For the above reasons, the Board finds that the preponderance of evidence weighs against the claim for service connection for a pulmonary disorder and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a pulmonary disorder, to include as secondary to service connected PTSD, is denied. REMAND In May 2012, the Board granted a TDIU for the period from September 7, 2010, and remanded the issues of service connection for a pulmonary disorder and entitlement to a TDIU, for the period prior to September 7, 2010, for further development by the AMC. In this remand, the Board specifically requested that, even if the AMC did not grant service connection for a pulmonary disorder, the AMC was to refer the Veteran's application for entitlement to a TDIU, for the period prior to September 7, 2010, to the Director, Compensation and Pension Service, for extraschedular consideration. The record contains no indication that the AMC either referred the TDIU claim, as requested by the Board, or re-adjudicated the TDIU claim. Therefore, remand is necessary for compliance with the Board's May 2012 Remand requests. Accordingly, the case is REMANDED for the following action: Refer the Veteran's application for a TDIU, for the period prior to September 7, 2010, to the Director, Compensation and Pension Service, for extraschedular consideration. See 38 C.F.R. §4.16(b) (2012). After a determination is received from the Director, re-adjudicate the Veteran's claim for a TDIU, for the period prior to September 7, 2010. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs