Citation Nr: 18140683 Decision Date: 10/05/18 Archive Date: 10/04/18 DOCKET NO. 16-15 401 DATE: October 5, 2018 ORDER Service connection for a respiratory condition is denied. FINDING OF FACT The Veteran’s respiratory condition diagnosed as emphysema was not shown to have had onset in or to have been causally related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory condition have not been met. 38 U.S.C. 1110, 1131, 5107 (2012); 38 C.F.R. 3.300, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the Army from August 1970 to February 1972. This matter is on appeal to the Board of Veterans’ Appeals (Board) from a June 2013 rating decision of a regional office of the Department of Veterans Affairs (VA). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Initially, the Board acknowledges the Veteran’s assertion, and sole theory of entitlement, that his emphysema was caused from smoking cigarettes that were given to him in service. Essentially, the Veteran contends that because he became “addicted” to smoking cigarettes Min the military, he therefore should be compensated for his current respiratory condition that was caused from smoking. See Notice of Disagreement dated August 2013 and Statement in VA Form 9 dated March 2016. Objective medical evidence clearly indicates that the Veteran had an extensive history of smoking. VA treatment records reflect long-term tobacco use prior to quitting in January 2011 where he smoked more than one pack per day for over 40 years. See VA treatment records dated October 2012. He was diagnosed with emphysema in April 2010, approximately 38 years after separation from service. Id. In this regard, to the extent that the Veteran claims his emphysema is related to smoking in service, service connection may not be granted on the basis of tobacco use, even if such tobacco use began in service. See 38 U.S.C. § 1103; 38 C.F.R. § 3.300. The Veteran is competent to report smoking tobacco products during service; however, for claims filed after June 9, 1998, Congress has prohibited the grant of service connection for disability due to the use of tobacco products during active service. 38 U.S.C. §§ 1103(a), 1110, 1131. Thus, service connection cannot be warranted on this basis as a matter of law. Additionally, the Board concludes that the preponderance of the evidence is against the finding that the claimed respiratory condition began during active service, or is otherwise related to service. The Board notes that no VA examination or medical opinion was obtained in relation to the claimed respiratory condition on appeal. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran’s claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The third factor, in particular, is a low threshold. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds no reasonable possibility that a VA examination would aid in substantiating the service connection claim for a respiratory condition. The Veteran’s service treatment records are absent of any treatment, findings, or diagnosis of a respiratory condition, with normal clinical evaluation on separation. See Report of Medical Examination dated December 1979. As indicated above, the earliest medical notation of findings related to emphysema was with a CT chest scan in April 2010, approximately 38 years after separation from service. See Temple VA treatment records and Social Security records. This gap in time supports a finding that the Veteran’s disability is not related to service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (allowing the Board to consider “evidence of a prolonged period without medical complaint”). There is simply no competent evidence of record even suggesting that current respiratory condition claimed as emphysema may be associated with service. In the absence of required elements above, the Board observes that VA has no duty to provide an examination or obtain an opinion in this case. See 38 U.S.C. § 5103A(a). Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that service connection for emphysema as a result of the Veteran’s tobacco use is barred by regulation. As the preponderance of the evidence is against the Veteran’s claim for service connection for a respiratory condition, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. See 38 U.S.C § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. An, Associate Counsel