Citation Nr: 1338543 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 07-35 122 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) (claimed as lung bullae) as secondary to a service-connected disability. 2. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty from March 1970 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In April 2009, the Veteran testified during a video conference hearing before the undersigned. A copy of the hearing transcript is associated with the claims folder and has been reviewed. In September 2009, the case was remanded for additional development. The requested development has been completed, and the appeal has been returned to the Board for further appellate review. The Veteran was previously represented by a private attorney. The attorney withdrew her representation by way of an August 2010 letter. In a September 2012 VA Form 21-22, the Veteran appointed the Veterans of Foreign Wars (VFW) as his representative. An October 2012 statement raises a informal claim of entitlement to specially adapted housing or special home adaption. This issue has not been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue, and it is referred to the RO for appropriate development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran's current COPD is aggravated by his service-connected PTSD. 2. The Veteran's service-COPD renders him unable to care for his daily needs without requiring the regular aid and attendance of another person. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.310 (2013). 2. The criteria for SMC based on the need for regular aid and attendance have been met. 38 U.S.C.A. §§ 1114(l) (West 2002); 38 C.F.R. §§ 3.350, 3.352 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the fully favorable determinations in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. Service Connection The Veteran contends that his lung disease is a result of a cigarette-smoking habit developed or aggravated as a result of his PTSD symptoms. Specifically, he maintains that the stress of working as a body handler in Vietnam caused him to start smoking, and that he smoked to cover the smell of remains. The DD 214 shows that his military occupational specialty (MOS) was that of memorial activities specialist. During the Veteran's April 2009 hearing, he testified that he had tried to quit smoking for "months" but that his uncontrolled anxiety and nightmares caused him to resume smoking. For secondary service connection to be granted, generally there must be (1) medical evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). 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 (2012); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995). Generally, claims for service-connection directly based on the effects of tobacco products are barred. See 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300(a). However, if the disease can be service-connected on a basis other than the direct use of tobacco products the claim may be granted. 38 C.F.R. § 3.300(b)(1). Service connection would also be permissible, if the smoking was caused by a service-connected disability and the smoking caused or aggravated another disability. See, e.g., El-Amin v. Shinseki, 26 Vet. App. 136 (2013). The evidence of record reflects a current diagnosis of COPD. There is evidence which generally links the COPD to smoking. The Veteran is also service-connected for PTSD. What remains to be established is whether the Veteran's COPD was caused or aggravated by his service-connected PTSD. A September 2007 statement from B.K.B., M.D. opines that the Veteran's PTSD was "made worse synergistically and protentiated significant by post traumatic stress disorder." A February 2009 statement from Dr. B.K.B. opines that the Veteran developed COPD from smoking, and that he took up smoking to cover the smell of bodies. A March 2009 statement from Dr. B.K.B. opines that the Veteran's heavy smoking was "caused by his PTSD" and was "a substantial factor in causing or aggravating his COPD." In contrast, a March 2008 VA examiner opined that a relationship between the Veteran's COPD and his service-connected PTSD was "unlikely." Similarly, a September 2010 VA examiner opined that "there is no evidence to suggest that the Veteran's use of cigarettes and tobacco was caused or exacerbated by his posttraumatic stress disorder symptoms." Accordingly, the Board sought an outside medical opinion (OMO) from a psychiatrist. The opinion was completed in October 2013. The psychiatrist noted that medical research literature has "repeatedly showed that nearly half of the patients with PTSD diagnosis are cigarette smokers" and that PTSD is "highly associated with unsuccessful smoking attempts." The psychiatrist also noted that individuals with PTSD "smoke more heavily than smokers without PTSD and tend to use tobacco to regulate depressive and anxiety symptoms." The psychiatrist reviewed the file and opined that "it is at least as likely as not" that the Veteran's smoking was aggravated by the service-connected PTSD. It was further noted that the Veteran continued to smoke after discharge while suffering from untreated PTSD symptoms; that his impaired pulmonary function was first noted in 1984; and that the Veteran's COPD has become severe and permanent since 2006. The Board recognizes that the OMO opinion does not specify the degree to which the Veteran's PTSD has aggravated his COPD. The Veteran's claim for service connection for COPD as secondary to PTSD was filed after the October 2006 revision to 38 C.F.R. § 3.310. The language in the revised version of 38 C.F.R. § 3.310 referencing baseline levels of disability potentially serves to bar compensation if such levels have not been demonstrated. However, the question of the baseline level of disability is deemed to be a rating issue and does not preclude the grant of secondary service connection in this decision. While it may impact whether a compensable evaluation may be awarded, this is not the question presently before the Board. See Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms "compensation," "rating," and "service connection" as, although related, each having a distinct meaning as specified by Congress). Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for COPD as secondary to service-connected PTSD is warranted. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). SMC SMC is payable in addition to the basic rate of compensation otherwise payable on the basis of degree of disability for service-connected disability. See 38 U.S.C.A. § 1114 (West Supp. 2012); 38 C.F.R. § 3.350 (2013). The Veteran seeks SMC based on the need for regular aid and attendance of another person. Increased compensation at the aid and attendance rate is payable when a veteran is helpless or so nearly helpless as the result of service-connected disability that he requires the regular aid and attendance of another person. 38 U.S.C.A. § 1114(l) (West 2002 & Supp. 2013); 38 C.F.R. § 3.350(b) (2013). To establish a need for regular aid and attendance, the veteran must, as a result of service-connected disability, (1) be blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; (2) be a patient in a nursing home because of mental or physical incapacity; or (3) show a factual need for aid and attendance. Id. A factual need for aid and attendance includes the inability to dress, undress, keep ordinarily clean and presentable, feed oneself through loss of coordination of the upper extremities or through extreme weakness, or attend to the wants of nature. It includes the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid. A need for aid and attendance also includes either physical or mental incapacity that requires care or assistance on a regular basis to protect against the hazards or dangers incident to the daily environment. Additionally, an individual who is bedridden meets the criteria for aid and attendance. 38 C.F.R. § 3.352(a) (2013). As discussed above, the Board has determined that service connection is warranted for COPD. VA treatment records establish that the Veteran has been wheelchair-bound due to his COPD for several years. He requires oxygen and becomes short of breath with minimal exertion. In December 2007, a VA physician recommended that the Veteran consult with a social worker to initiate the process of obtaining nursing care at home. A March 2008 VA examiner noted that the Veteran could feed himself, but had been unable to dress himself without help for several years. He also noted that the Veteran required assistance to tend to the needs of nature. After reviewing the claims file, it is clear that the Veteran's service-connected COPD affects his ability to ambulate and attend to his daily needs. As a result, he is unable to complete activities of daily living such as dressing and bathing. Thus, the Board concludes that the criteria for aid and attendance benefits have been met. 38 U.S.C.A. § 5107(b). ORDER Service connection for COPD as secondary to service-connected PTSD is granted. Entitlement to SMC benefits based on the need for regular aid and attendance is warranted. The appeal is granted to this extent, subject to laws and regulation applicable to payment of VA monetary benefits. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs