Citation Nr: 1647762 Decision Date: 12/22/16 Archive Date: 01/06/17 DOCKET NO. 12-13 206 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a chronic respiratory/pulmonary disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran served on active duty from July 1974 to July 1978 and from June 1982 to February 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In September 2010, the Veteran testified before a Decision Review Officer (DRO) at the RO. In April 2013, he testified at a Travel Board hearing before the undersigned. The Board remanded this issue for further development in a March 2014 decision. The Board's March 2014 decision also granted entitlement to service connection for posttraumatic stress disorder (PTSD). The RO effectuated the grant in a June 2014 rating decision, which was mailed to the Veteran in October 2014. The Veteran responded with a September 2015 Notice of Disagreement, attempting to disagree with the removal of 10 percent ratings for varicose veins of each leg which, in his estimation, resulted in an incorrect calculation of his combined rating. Review of the record reflects that the June 2014 rating decision did not alter his ratings for varicose veins in any respect. Because the Notice of Disagreement does not disagree with an adverse determination made in the June 2014 rating decision, the Board concludes that remand for issuance of a Statement of the Case is not warranted as there is no case or controversy to resolve. Cf. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Additional evidence has been received following the issuance of a January 2015 Supplemental Statement of the Case. In December 2015, the Veteran submitted additional records in conjunction with an October 2015 claim for a total disability rating due to individual unemployability based on service-connected disabilities. These include a 1999 neurophysiologic evaluation, a 2011 Social Security Administration (SSA) decision, and an authorized release for records related to the neurophysiological evaluation and SSA filing. The Board notes that the neurophysiological evaluation is pertinent only to a back disability, not currently on appeal. Furthermore, the SSA records, to the extent they show a current diagnosis of COPD, are cumulative of evidence previously considered by the agency of original jurisdiction. The Veteran also underwent additional VA examinations in 2016 in connection with the unemployability claim; however, neither COPD nor any other non-service-connected respiratory condition was discussed. The Board concludes that a waiver of RO consideration is not required. See 38 C.F.R. § 20.1304 (2015). Following the return of the case to the Board in January 2015, the Board determined that an opinion from a medical expert in the Veterans Health Administration (VHA) was necessary to address the complex medical question raised in this case. 38 C.F.R. § 20.901(a) (2015). The requested opinion was received in July 2016. The Veteran was provided a copy of the opinion and an opportunity to submit additional evidence or argument. The Veteran indicated in July 2016 that he waived consideration of the evidence by the agency of original jurisdiction. He requested the Board proceed to adjudicate his appeal. His representative has submitted a brief in support of his appeal. These actions comply with the requirements of the fair process doctrine. See, e.g., Thurber v. Brown, 5 Vet. App. 119, 123 (1993). FINDINGS OF FACT 1. The Veteran filed the application to reopen a claim for service connection from which this appeal arises after June 9, 1998. 2. The Veteran has current respiratory disabilities diagnosed as chronic obstructive pulmonary disease (COPD), asthma, and pleural scarring/nodules. 3. The Veteran's COPD, asthma, and pleural scarring/nodules are due to in-service use of tobacco products and were manifest during service. CONCLUSION OF LAW The criteria for service connection for COPD, asthma, and pleural scarring/nodules have been met. 38 U.S.C.A. §§ 1103, 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.300, 3.303, 3.304, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks service connection for a chronic respiratory/pulmonary disorder as due to exposure to noxious fumes and chemicals during service. For the reasons that follow, the Board finds that the Veteran filed the underlying claim after June 9, 1998, that he has a current disability of COPD, asthma, and pleural scarring/nodules, and that these disabilities were manifest during service. As a result, the Board concludes that service connection is warranted on a direct basis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that he has a respiratory or pulmonary disorder. The claims file reflects three potential diagnoses: COPD, asthma, and scarring. The Veteran underwent pulmonary function tests at the Wilmington VAMC, which were interpreted to show "severe obstructive airways disease with significant bronchodilator response consistent with COPD [with] Asthma." See December 2006 Pulmonary Function Studies Consultation Report; see also February 2007 addendum. The Veteran also underwent a CAT scan in June 2009 at Wilmington VAMC. The reason was a chest x-ray and chest CT resulted in a rule out pulmonary nodule. The Veteran also had pulmonary function tests with abnormal result with a diagnosis of COPD and he was evaluated for home oxygen. The July 2009 CAT scan results narrative indicates that an area of linear infiltrate and nodularity at the right lung base may represent atelectasis, focal pneumonitis, or scarring. Based on the foregoing, the evidence demonstrates three current respiratory and pulmonary disabilities. The first element of service connection is satisfied. Shedden, 381 F.3d at 1167. The Veteran has alleged a variety of in-service events as the potential cause of his current respiratory disability. The Board will only address one, in-service use of tobacco products. The Veteran submitted a July 2009 statement in support of this claim in which he alleged that he smoked cigarettes during service, which was encouraged, and that he became "helplessly addicted." The Veteran was evaluated in service for shortness of breath and coughing in 1987; however, COPD, asthma, and scarring in the right lower lung were not diagnosed. A December 1988 chest x-ray was interpreted to show a possible scar of the pleural peripheral right lung. March 1987 and December 1989 Reports of Medical History note the Veteran's complaints of shortness of breath and chronic morning cough. The March 1987 report of medical history indicates he reported smoking one to two packs per day for fifteen years. The Board obtained a June 2016 VHA opinion in July 2016. That opinion found that the in-service complaints of shortness of breath and coughing were manifestations of his current respiratory disabilities. The Board notes that this opinion is competent, credible, and the only medical opinion on this point of record. 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 the Veteran's use of tobacco products during service. 38 C.F.R. § 3.300(a). The provisions of § 3.300(a), however, do not prohibit service connection if, in relevant part, the disability became manifest during service. 38 C.F.R. § 3.300(b)(1). The instant claim arises from an October 2008 filing. As the evidence of record shows both use of tobacco products during service and complaints that are in-service manifestations of diseases related to that tobacco use, the Board finds the second, in-service incurrence element of service connection has been satisfied. Shedden, at 1167. The Board finds that the Veteran's current disabilities are those manifest during service. The medical evidence dated from 2008 attributes the Veteran's respiratory disabilities to tobacco use. Although COPD, asthma, and the pleural scarring/nodule were not specifically diagnosed during service, the statutes and regulations do not require diagnosis, they require manifestations. Given that the only medical opinion on point finds the current respiratory disabilities to have been manifest during service, the prohibition on service connection for disabilities related to in-service tobacco use does not apply in this case. As such, the third, nexus element of service connection is satisfied. The evidence is at least in equipoise and the benefit of the doubt applies. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.The Board concludes that the criteria for service connection for COPD, asthma, and pleural scarring/nodules have been met and that entitlement to the benefit sought is warranted. 38 U.S.C.A. §§ 1103, 1110, 1131; 38 C.F.R. §§ 3.300, 3.303. ORDER Entitlement to service connection for COPD, asthma, and pleural scarring/nodules, is granted. ____________________________________________ James D. Ridgway Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs