Citation Nr: 18140295 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-47 249 DATE: October 2, 2018 REMANDED Service connection for a respiratory disability is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1959 to October 1962. The Veteran was scheduled for a Board of Veterans’ Appeals (Board) hearing at the Regional Office (RO). In March 2018, the Veteran withdrew his hearing request. Accordingly, appellate review will proceed without a hearing. 38 C.F.R. § 20.704(d). The Veteran asserts that his current respiratory disorder is related to his military service. Specifically, he asserts that he was provided cigarettes in service, and that his in-service smoking caused his current respiratory problems. See May 2016 Statement. Service treatment records reflect that the Veteran was treated for acute bronchitis, bronchitis, and bronchopneumonia. During his May 1961 separation and re-enlistment examination the examiner noted asthmatic bronchitis, acute resolving. The Veteran was afforded a Department of Veterans Affairs (VA) examination in August 2013. The examiner diagnosed emphysema and chronic bronchitis. The Veteran reported that he started smoking cigarettes in the military and was a heavy smoker for many years thereafter. He reported he has numerous illnesses that have been caused by smoking and requires oxygen continuously due to hypoxemia, and he had to stop working. The examiner opined that the Veteran’s current disability is less likely than not related to military service. She explained that the Veteran had respiratory infections and coughs treated in service and his smoking could have contributed to the cause of these at the time; however, one could not conclude that these symptoms were the start of his emphysema from which he suffers four decades later. She reported that the number of illnesses for which smoking is a risk factor is numerous and the lifestyle choice made by smoking Veterans cannot be associated with the military any more than obesity or alcoholism could be. In an undated private opinion the Veteran’s treatment provider reported that cigarette smoking was the major factor in his development of severe chronic obstructive pulmonary disease (COPD) and contributed to his Arteriosclerotic heart disease (ASHD). In November 2016 a different private treatment provider reported that the Veteran’s nicotine began in military service and that there is a sensitivity to nicotine products in his family which have left him with poor lung capacity from COPD. In March 2018 a third private treatment provider reported that the Veteran has COPD and also had difficulty with episodes of acute bronchitis throughout his life, which began during his time in the service. He reported that these episodes continued to occur throughout his adult life however no rationale was provided for this opinion. The Board notes that for claims filed after June 9, 1998, the law precludes VA from granting service connection for a respiratory disorder resulting from nicotine use or addiction. 38 U.S.C. § 1103. Upon review, the Board finds that remand is warranted to obtain a supplemental medical opinion. The record reflects current diagnoses for COPD, emphysema, and chronic bronchitis and in-service treatment for respiratory illnesses. However, the VA examiner only addressed the relationship between the Veteran’s current emphysema and in-service respiratory illnesses. As such, remand is required. The matter is REMANDED for the following action: 1. The claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current respiratory disorder (COPD, emphysema, acute bronchitis) is related to an in-service injury, event, or disease. In offering the opinion, the examiner is asked to consider in-service treatment for acute bronchitis, bronchitis, and bronchopneumonia. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as the Board is precluded from making any medical findings. M. Donohue Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Gonzalez, Associate Counsel