Citation Nr: 1741745 Decision Date: 09/22/17 Archive Date: 10/02/17 DOCKET NO. 11-32 570 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for anxiety and depressive disorder, not other specified (NOS), prior to September 24, 2015. 2. Entitlement to a disability rating in excess of 70 percent for post-traumatic stress disorder (PTSD) with alcohol use disorder (previously rated as anxiety and depressive disorders, NOS), from September 24, 2015. 3. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to service-connected PTSD. REPRESENTATION Appellant represented by: Sean Kendall, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and T.T. ATTORNEY FOR THE BOARD G. Johnson, Associate Counsel INTRODUCTION The Veteran had honorable active service in the United States Army from September 1969 to May 1972, and served in the Republic of Vietnam from July 1970 to July 1971. The Veteran received multiple awards and medals including the Army Commendation Medal, and the Vietnam Service Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which granted service connection for anxiety and depressive disorders, not otherwise specified (previously denied as mental disorder to include PTSD) and denied service connection for chronic obstructive lung disease (COPD). In November 2011, the RO issued a rating decision, which increased the rating to 10 percent for anxiety and depressive disorders. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in September 2013. A transcript of the hearing has been associated with the claims file. The case was previously before the Board in August 2014, at which time the Board referred the Veteran's informal claim to reopen the previously disallowed issue of entitlement to service connection for PTSD to the RO for its consideration. The Board also remanded the case for a VA psychiatric examination to determine the current severity of his anxiety and depressive disorders, and to obtain relevant Social Security Administration (SSA) records. There has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In February 2016, the RO issued a rating decision, which granted service connection for PTSD with alcohol use disorder (previously rated as anxiety and depressive disorders), with an evaluation of 70 percent effective September 24, 2015; the 10 percent rating for anxiety and depressive disorders was maintained from March 2, 2010 to September 24, 2015. This issue remains on appeal; the staged rating and recharacterization of the disability are noted in the Issue section above. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that the Veteran has a pending claim for an earlier effective date for total disability rating based on individual unemployability (TDIU) prior to September 24, 2015, that was certified to the Board for review in August 2017. However, in a June 2017 VA Form 9 Substantive Appeal, the Veteran requested a videoconference hearing before the Board. An August 2017 Form 8 Certification to the Board reflects that the Agency of Original Jurisdiction (AOJ) is still taking action on this issue to schedule the Veteran's requested Board hearing. As such, the Board will not accept jurisdiction over the issue at this time, and it will be the subject a subsequent Board decision, if otherwise in order. FINDINGS OF FACT 1. Prior to January 26, 2011, the Veteran's service-connected psychiatric disorder, has more nearly approximated occupational and social impairment with reduced reliability and productivity. 2. From January 26, 2011, the Veteran's service-connected psychiatric disorder has more nearly approximated occupational and social impairment with deficiencies in most areas. 3. There is competent and credible evidence of record that the Veteran's post-service tobacco use was proximately due, at least in part, to his service-connected PTSD. 4. The Veteran's use of tobacco products as a result of PTSD was a substantial factor in causing COPD. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 50 percent for the Veteran's service-connected psychiatric disorder (characterized as anxiety and depressive disorder, NOS) prior to January 26, 2011 have been met. 38 U.S.C.A. § 1110 (West 2016); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2016). 2. The criteria for a 70 percent rating for the Veteran's service-connected psychiatric disorder (now recharacterized as PTSD) from January 26, 2011, have been met. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. The criteria for entitlement to service connection for chronic obstructive lung disease as secondary to service-connected PTSD are met. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.310, Diagnostic Code 6604; VAOPGCPREC 6-2003. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A. In light of the favorable disposition of the claim for service connection for chronic obstructive lung disease, the Board finds that any deficiencies with regard to the duty to notify or assist are non-prejudicial. Thus, no further discussion of VA's duties to notify and assist is necessary with regards to the Veteran's claim for service connection for chronic obstructive lung disease. With regards to the Veteran's claim for an initial increased rating for the Veteran's service-connected psychiatric disorder (now characterized as PTSD), VA has met the requirements of 38 U.S.C.A. §§ 5103 and 5103A. By correspondence dated in March 2010, VA notified the Veteran of the information and evidence needed to substantiate and complete the claim. The letter also notified the Veteran as to how VA assigns disability ratings and effective dates. The Veteran bears the burden of demonstrating any prejudice from defective (or nonexistent) notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). That burden has not been met in this case. Neither the Veteran nor his representative alleges such prejudice in this case. Therefore, no further notice is required. VA has also satisfied the duty to assist. The Veteran's service treatment records, VA treatment records, Social Security Administration (SSA) records pertaining to the Veteran's claim for disability benefits have been obtained and associated with the claims file. The Veteran has been medically evaluated in conjunction with his claim for an initial increased rating for PTSD on two occasions, in August 2010 and September 2015. The VA examiners recorded the Veteran's current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. As noted in the introduction, the claim had been remanded for further development. In reviewing the record, the Board finds substantial compliance with the remand directives as concerns the issues on appeal. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Finally, the Veteran testified at a Board hearing. The hearing was adequate as the Veterans Law Judge who conducted the hearing explained the issues and identified possible sources of evidence that may have been overlooked. 38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488, 496-497 (2010). In summary, the Board finds that it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence should be submitted to substantiate the claim. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). II. Initial Rating for PTSD The Veteran seeks a higher initial rating in excess of 10 percent for his service-connected psychiatric disorder (characterized as anxiety and depressive disorders prior to September 24, 2015, and recharacterized as PTSD from September 24, 2015) prior to September 24, 2015, and in excess of 70 percent as of September 24, 2015. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119, 127 (1999). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In other words, where the evidence contains factual findings that demonstrate distinct periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran's service-connected psychiatric disorder is currently assigned an initial rating of 10 percent prior to September 24, 2015, and a rating of 70 percent as of September 24, 2015 pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 and the General Rating Formula for Mental Disorders. Pursuant to the General Rating Formula, a 10 percent evaluation is warranted where there is occupational and social impairment due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. Id. A 30 percent evaluation is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficultly in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. VA shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). A Veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the presence of the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-118 (Fed. Cir. 2013). In addition to requiring the presence of the enumerated symptoms, 38 C.F.R. § 4.130 also requires that those symptoms have caused the specified level of occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-118 (Fed. Cir. 2013). However, the factors listed in the rating schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating, so the determination should not be limited solely to whether a Veteran exhibited the symptoms listed in the rating scheme, but should also be based on all of a Veteran's symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-443 (2002); Amberman v. Shinseki, 570 F.3d 1377, 1380 (Fed. Cir. 2009); see also 38 C.F.R. § 4.126(a); compare Massey v. Brown, 7 Vet. App. 204, 208 (1994) It is error where the Board fails to assess adequately evidence of a sign or symptom experienced by the Veteran, misrepresents the meaning of a symptom, or fails to consider the impact of the Veteran's symptoms as a whole. However, the presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria, including suicidal ideation, is not necessarily dispositive of any particular disability level. Bankhead v. Shulkin, 29 Vet. App. 10, 25 (2017). For instance, the scores assigned under the Global Assessment of Functioning (GAF) scale may be a relevant consideration. See e.g., Bowling v. Principi, 15 Vet. App. 1, 14 (2001). However, the American Psychiatric Association has since determined that the GAF score has limited usefulness in the assessment of the level of disability. Noted problems include lack of conceptual clarity and doubtful value of GAF psychometrics in clinical practice. 79 Fed. Reg. 45093 (Aug. 4, 2014). The Board notes that effective August 4, 2014, the regulations governing the rating of mental disorders were updated to replace all references to the DSM-IV with references to the DSM-V, which no longer utilizes the GAF score system. 80 Fed. Reg. 14308 (Mar. 19, 2015). However, this change does not apply to claims that were certified for appeal to the Board, even if such claims were subsequently remanded. Id. As the Veteran's claim had been certified to the Board, the DSM-IV is still applicable to his claim. A Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing DSM-IV. The DSM-IV contains a GAF scale, with scores ranging from zero to 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. The Board notes that an examiner's classification of the level of psychiatric impairment, by words or by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned. See VAOPGCPREC 10-95. GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th. ed., 1994). At the September 2013 videoconference hearing, the Veteran testified that he had been taking medication for his depression and anxiety since 2010. The Veteran testified that he has had passive suicidal ideation when things were not going well, and when he was aggravated or depressed. The Veteran and his wife testified that he had long term and short-term memory problems, trouble sleeping and nightmares. The Veteran testified that he was easily frustrated, and that his temper had worsened since he got out of service. The Veteran testified that he had four friends that he had known his whole life, or from Vietnam. He testified that he and his wife did not have a social life. They usually stayed home, or went out to eat. The Veteran and his wife testified that the Veteran had to sit where he could see what was going on in a restaurant. The Veteran testified that he used to be an active member of the church, however, he stopped going. He testified that he stayed away from people because of his temper, and he had gotten in trouble at work for losing his temper and correcting supervisors in front of customers. The Veteran served in the United States Army from September 1969 to May 1972. The Veteran's service treatment records are silent for any complaint, treatment, or diagnosis of posttraumatic stress disorder, anxiety or depression. Post-service treatment records reflect treatment for depression, anxiety, and PTSD. A March 2008 VA treatment record reflects that the Veteran was currently undergoing treatment for depression. VA treatment records in May 2006 and July 2009 reflect that the Veteran had a positive PTSD screening test. The July 2009 treatment provider noted that the Veteran also had depression, and declined a referral to mental health. A VA treatment record in April 2010 reflects a diagnosis of depression and generalized anxiety disorder. The Veteran reported feeling down for the previous two weeks, trouble sleeping, and feeling tired. He reported that he felt his depression symptoms had been noticeable to him for the past three years, and that he was worried almost every day over the past 6 months. The Veteran reported that his anxiety caused him to feel on edge, tense, and have trouble sleeping. He reported that he was bothered by disturbing memories, reliving experiences, physical reactions and emotional reactions when reminded. The Veteran reported that his depressive symptoms made it somewhat difficult to do his work, take care of things at home, and get along with others. The Veteran was afforded a VA examination in August 2010, which reflects a diagnosis of mild symptoms of anxiety disorder, not otherwise specified, and depressive disorder, not otherwise specified. The Veteran reported general sadness with crying bouts, sleep disturbance, difficulties with concentration, and a sense of hopelessness. The Veteran denied any homicidal or suicidal ideation. The Veteran reported that for the last 18 years, he worked for the same employer and he enjoyed his job immensely. The Veteran reported being married for 37 years with two grown children. He reported his relationship with his wife was good and supportive, and he and his wife lived in his daughter's basement. The examiner noted that the Veteran had normal cognitive functioning, and his orientation, long-term memory, arithmetic, attention, concentration, visual motor, visual spatial, language skills and general concentration were grossly intact. The Veteran had a Global Assessment of Functioning (GAF) score of 56. VA treatment records in January 2011, August 2011, December 2011, and March 2012 reflect that the Veteran reported passive suicidal ideation. On January 26, 2011, the Veteran reported that he felt irritable and worthless since he was laid off from his job as a casino card dealer, and acknowledged some fleeting and passive suicidal ideation. The treatment provider noted that the Veteran's concentration and memory had been impacted since he had brain surgery, and the Veteran's mood was mildly dysphoric. An October 2013 medical opinion reflects a diagnosis of PTSD. The Veteran reported that he had been struggling with nightmares, suicidal thoughts, and survivor's guilt. He also reported that he had memory impairment. The Veteran reported that he developed addictive attachments to alcohol and chain smoking to cope with his anxiety and depression. The Veteran also reported that he was able to reduce his drinking to five to eight shots, most evenings, and though it left him mildly inebriated, he was able to remain civil and control his behavior. The treatment provider noted that the Veteran exhibited a flattened affect because of his heavy drinking. The Veteran reported that he had positive relationships with his wife, children and a few friends. The Veteran reported that he frequently changed jobs because of constant problems with authority. The October 2013 treatment provider noted that since the Veteran was laid off from his last job a few years prior, the Veteran's depression, preoccupation with violent fantasies, his drinking, and his inability to sleep and awaken rested had rendered him unemployable. The treatment provider opined that the Veteran's difficulty in establishing and maintaining effective work relationships was evident in his employment history. The treatment provider noted that even with a Master's degree, the Veteran was unable to pursue a career in education. The treatment provider also noted that the Veteran has worked at several different occupations and changed jobs frequently. A September 2015 PTSD Disability Benefits Questionnaire (DBQ) reflects a diagnosis of PTSD, persistent adjustment disorder (PAD), and mild alcohol use disorder. In regards to his PTSD, the Veteran reported anxiety, sleep disturbances, nightmares, difficulties with concentration and attention, feeling detached and estranged from others, irritability, avoidance of crowds, persistent negative emotional state, and negative cognitions. The Veteran denied any homicidal or suicidal ideation. The Veteran's wife reported that his symptoms had worsened over the past few years. The examiner noted that the Veteran's primary affect was depressed, and his short-term memory and long-term memory were moderately impaired. The Veteran reported good relationships with his wife and children. He reported that he had very few friends, and tended to isolate himself. The Veteran reported he had been unemployed since 2010 due to medical conditions. The Veteran reported that when he was working, he engaged in multiple verbal altercations, which resulted in his termination from one position. In regards to his alcohol use disorder, the Veteran reported that he used alcohol in order to manage his mental health symptoms. The examiner opined that the Veteran's alcohol use was associated with his current diagnosis of PTSD, as the Veteran had indicated that he used alcohol in order to cope with his mental health symptoms. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the symptoms of the Veteran's psychiatric disorder have more nearly approximated the criteria for a higher initial 50 percent rating, but not higher, prior to January 26, 2011, the date of VA mental health triage/mental health crisis intervention notes. 38 C.F.R. § 4.7. Prior to January 26, 2011, the Veteran's psychiatric disorder symptoms were manifested primarily by depressed mood, anxiety, and chronic sleep impairment, disturbance of motivation and mood; and difficultly in establishing and maintaining effective work and social relationships. The Veteran also had a GAF score of 56, which reflects moderate difficulty in social, occupational, or school functioning. The Board finds that the Veteran's symptomatology prior January 26, 2011 have been consistent with and more nearly approximated occupational and social impairment with reduced reliability and productivity, the criteria for a 50 percent rating. The Board finds that the symptoms associated with the Veteran's service-connected psychiatric disorder do not meet the criteria for a 70 percent rating prior to January 26, 2011. A 70 percent rating requires occupational and social impairment with deficiencies in most areas. The Board finds that neither the delineated symptoms nor comparable symptoms are shown to be characteristic of the Veteran's PTSD prior to January 26, 2011. The evidence of record does not indicate that prior to January 26, 2011, the Veteran exhibited suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or an inability to establish and maintain effective relationships. During the August 2010 VA examination, the Veteran reported that for 18 years, he worked for the same employer and he enjoyed his job immensely. He also reported being married for 37 years with two grown children, and reported he had a good and supportive relationship with his wife. The Veteran has also reported that he has had a few friends that he has either known most of his life or from his time in Vietnam. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the symptoms of the Veteran's psychiatric disorder have more nearly approximated the criteria for a higher 70 percent rating, but not higher, from January 26, 2011. 38 C.F.R. § 4.7. Since January 26, 2011, the Veteran's psychiatric symptoms were manifested primarily by flattened affect; impairment of short and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficultly in establishing and maintaining effective work and social relationships; and suicidal ideation. The Board finds that the Veteran's symptomatology from January 26, 2011 have been consistent with and more nearly approximated occupational and social impairment with deficiencies in most areas, the criteria for a 70 percent rating. However, the Board finds that the symptoms associated with the Veteran's PTSD do not meet the criteria for a 100 percent rating at any period of this appeal. A 100 percent rating requires total occupational and social impairment due to certain symptoms. The Board finds that neither the delineated symptoms nor comparable symptoms are shown to be characteristic of the Veteran's PTSD. The evidence of record does not indicate that the Veteran has exhibited persistent delusions; grossly inappropriate behavior; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Throughout the record, the Veteran was consistently found to be oriented. The Veteran has maintained relationships with his wife, children, and a few friends. Therefore, he was shown to be able to maintain social interactions with other people. He has never displayed grossly inappropriate behavior, any sort of delusions, or had the intermittent inability to perform activities of daily living. Therefore, the Board finds that total occupational or social impairment has not been shown. In sum, the Board finds psychiatric symptoms shown do not support the assignment of the maximum 100 percent schedular rating. Accordingly, the Board finds that the criteria for an initial 50 percent rating prior to January 26, 2011, and a rating of 70 percent from January 26, 2011, but not higher, for the Veteran's service-connected psychiatric disability are met. However, the Board finds that the preponderance of the evidence is against the assignment of a rating higher than 70 percent prior to January 26, 2011, and rating in excess of 70 percent at any period of this appeal. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). III. Service Connection for Chronic Obstructive Lung Disease The Veteran asserts that chronic obstructive lung disease is related to service or to service-connected PTSD. The Veteran asserts that COPD was caused by his service connected PTSD or was caused by exposure to Agent Orange and other chemicals. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 38 C.F.R. § 3.303. 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). Establishing 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. Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). Service connection is expressly precluded for any disability related to chronic tobacco use (smoking), for a claim, which was received by VA after June 9, 1998, See 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300. This statute and regulation, however, do not preclude the establishment of service connection based upon a finding that a disease or an injury (even if tobacco-related) became manifest or was aggravated during active service or became manifest to the requisite degree of disability during any applicable presumptive period specified in 38 C.F.R. §§ 3.307, 3.309, 3.313, or 3.316. Further, VA's Office of General Counsel has held that neither 38 U.S.C.A. § 1103 (a), nor its implementing regulations at 38 C.F.R. § 3.300, bar a finding of secondary service connection for a disability related to use of tobacco products after service. VAOPGCPREC 6-2003 (October 28, 2003). The questions that adjudicators must resolve with regard to a claim for service connection for a tobacco-related disability alleged to be secondary to a disability not service-connected on the basis of being attributable to the Veteran's use of tobacco products during service are: (1) whether the service-connected disability caused the Veteran to use tobacco products after service; (2) if so, whether the use of tobacco products as a result of the service-connected disability was a substantial factor in causing a secondary disability; and (3) whether the secondary disability would not have occurred but for the use of tobacco products caused by the service-connected disability. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013). COPD is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 do not apply to the claim. Walker v. Shinseki, 708 F.3d 1331, 1337-1338 (Fed. Cir. 2013). Service connection may also be established on a presumptive basis for certain disabilities, including respiratory cancers (cancer of the lung, bronchi, larynx, or trachea), resulting from exposure to an herbicide agent. 38 C.F.R. § 3.309(e). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). In this case, the Veteran served in Vietnam during the Vietnam era, and is therefore presumed to have been exposed to herbicides. However, COPD is not a condition subject to presumptive service connection based on herbicide exposure. Id. Even if service connection is not warranted under one of the presumptive regulations, this does not preclude a claimant from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Service connection may also be granted for a disability proximately due to or the result of a service-connected disability and where aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 446-449 (1995) (en banc). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence, which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). At the September 2013 videoconference hearing, the Veteran testified that he started smoking in basic training, and he smoked a pack a day in basic training. He testified that every C-ration packet came with four or five cigarettes. When he got to Vietnam, his smoking increased to a pack and a half to two packs a day. He smoked more while he was in Vietnam to try to alleviate the tension and the fear. He continued to smoke after service because it had become a habit and it was a way to relieve tension. He also testified that he smoke when he was depressed. He stopped smoking in approximately 2000. The Veteran had honorable active service in the United States Army from September 1969 to May 1972. Service treatment records are silent as to any complaints, treatment or clinical diagnosis for any lung disease. A March 1972 Report of Medical Examination reflects a normal finding for the Veteran's lungs and chest, and a chest x-ray was negative for any findings. Post-service treatment records reflect a diagnosis of chronic obstructive pulmonary disease (COPD) in 2006. VA treatment records in February 2006 reflect that the Veteran complained of wheezing with stress or exertion. He reported that although he never had his lungs evaluated, he was told after a chest x-ray he had COPD. May 2006 VA treatment records reflect that the Veteran had mild-moderate COPD. VA treatment records in July 2009 reflect that the Veteran reported that he quit smoking in September 2000 after he had been smoking for 30 to 35 years. In an October 2013 medical opinion, a treatment provider opined that the Veteran developed addictive attachments to alcohol and chain smoking to cope with the anxiety and depression that were part of his daily life. The treatment provider noted that the Veteran's addictive attachments to alcohol and chain smoking were a prominent part of the Veteran's life for several years after his discharge from service. The treatment provider noted that the Veteran developed a serious case of COPD, and was able to quit smoking after thirteen years. The October 2013 medical opinion establishes that COPD, at least in part, is due to his service-connected psychiatric disorder, now characterized as PTSD. Therefore, the Board must find that his currently diagnosed COPD is secondary to self-medication for a service-connected disability. That evidence is competent, credible and probative, and coupled with the other medical evidence of record including the Veteran's testimony, supports a conclusion that service connection for COPD is warranted. ORDER Entitlement to an initial rating of 50 percent, but no higher, for anxiety and depressive disorder, not other specified (NOS), is granted, prior to January 26, 2011, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating of 70 percent, but no higher, for PTSD with alcohol use disorder (previously rated as anxiety and depressive disorders, NOS) is granted, effective January 26, 2011, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to service connection for chronic obstructive pulmonary disease, as secondary to service-connected PTSD, is granted. S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs