Citation Nr: 1513240 Decision Date: 03/27/15 Archive Date: 04/03/15 DOCKET NO. 08-37 082 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a respiratory disorder. REPRESENTATION Appellant represented by: Daniel Krasnegor, Attorney ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran had active service from August 1965 to December 1968, and from January 1970 to February 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board denied the Veteran's claim for service connection for COPD in an April 2010 decision. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In an October 2011 Joint Motion for Remand (JMR), the Secretary of VA and the Veteran (the parties) moved the Court to vacate the April 2010 decision as to that issue. The Court granted the JMR in an October 2011 Order. The Board subsequently remanded the claim in October 2011. The issue returns to the Board for further consideration. In May 2013, August 2013, and December 2013, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). The requested opinions were received in June 2013, October 2013, and January 2014, respectively. FINDING OF FACT The Veteran's intermittent bronchitis at least as likely as not had its onset during active duty. CONCLUSION OF LAW The criteria for service connection for intermittent bronchitis are met. 38 U.S.C.A. §§ 1101, 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces, or if preexisting such service, was aggravated therein. Establishing direct service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). After reviewing the record, the Board finds that the most probative evidence supports a grant of service connection for intermittent bronchitis. The Veteran has a current diagnosis of intermittent bronchitis, including from the VHA physician's January 2014 report. The Veteran had in-service diagnoses of respiratory disorders. Specifically, he was diagnosed with pneumonia in 1973 and 1980, and with upper respiratory infections in 1972, 1981, 1982, and 1986. The Veteran also has a positive nexus opinion linking his intermittent bronchitis to his in-service exposure to second-hand smoke. Specifically, the January 2014 VHA physician opined that: The claimant's history is consistent with intermittent bronchitis which appears to have been precipitated by exposure to pollen, dust, cold air and the exposures to cigarette smoke [in service] also likely contributed on occasion....Although passive exposure to cigarette smoke may have [been] detrimental, it was only one of several factors that may have contributed to his intermittent episodes of bronchitis. The opinion from the January 2014 VHA physician is competent because he is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Also, his opinion is credible based on its internal consistency and its consistency with the in-service and post-service diagnoses. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board has considered the other medical opinion reports in this case, including VA examination reports dated November 2007 and June 2012; private physicians' opinions from Dr. Adekunle Omotayo, dated November 2010, and from Dr. Ian Newmark, dated August 2013 and October 2014; and VHA physicians' opinions dated June 2013, October 2013, and January 2014. These reports include different and often conflicting opinions as to the nature and etiology of the Veteran's respiratory disorder, the validity and probative weight accorded to his spirometry results, the impact of non-service-related factors on his restricted airways, the link between second-hand smoke and other respiratory disorders, and the impact of the length of time between his separation from service and the onset of additional respiratory disorders on the etiology thereof. Under the circumstances, and taking into consideration the totality of the evidence, the Board is persuaded that the criteria for a grant of service connection for intermittent bronchitis have been satisfied. The evidence, at a minimum, gives rise to a reasonable doubt on the question. 38 C.F.R. § 3.102 (2014). Therefore, the claim is granted. ORDER Service connection for intermittent bronchitis is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs