Citation Nr: 18150919
Decision Date: 11/16/18	Archive Date: 11/15/18

DOCKET NO. 18-22 408
DATE:	November 16, 2018
ORDER
Service connection for a pulmonary disability is denied.
FINDING OF FACT
The preponderance of the evidence is against finding that the Veteran has lung nodules due to a disease or injury in service, to include Agent Orange exposure.
CONCLUSION OF LAW
The criteria for service connection for a pulmonary disability are not met.  38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active service in the U.S. Army from September 1969 to April 1971.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision.
Service connection for a pulmonary disability
The Board concludes that, while the Veteran has a diagnosis of lung nodules, the preponderance of the evidence is against finding that this condition began during active service, or is otherwise related to an in-service injury, event, or disease.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d).
Service treatment records are negative for any complaints, treatment or diagnoses relating to a pulmonary condition, and the Veteran’s April 1971 separation examination was normal.  Moreover, although the Veteran has filed for service connection for his lung nodules, he has not asserted that they are related to any specific in-service event, injury or disease.
His VA treatment records show he complained of shortness of breath in March 2013.  X-rays taken at that time were normal.  Based on an abnormal pulmonary function test in June 2013, he underwent a CT scan in August 2013 which revealed the lung nodules.  Follow-up scans in May 2014, April 2015 and June 2016 showed these nodules were stable and he was discharged from lung nodule tracking.  Prior to March 2013, there is no evidence of a pulmonary disability.
The Veteran had active service in the Republic of Vietnam and is presumed to have been exposed to herbicide agents, including Agent Orange.  The Board has considered whether his lung nodules could be associated with that exposure.  However, lung nodules are not among the conditions listed under 38 C.F.R. § 3.309(e) as presumed to be associated with herbicide agents, and the Veteran has not presented any evidence to suggest such a connection.
The only other evidence suggesting these nodules are related to service is in his June 2013 VA records, which show he reported a history of smoking from adolescence to age 34.  Additional records from December 2014 show that the Veteran’s smoking history, as well as his age, were risk factors for lung nodules.
However, to the extent that the Veteran’s smoking history includes smoking during service, this is not a valid basis for service connection.  For claims filed after June 9, 1998, like this case, a disability will not be considered service-connected on the basis that it resulted from injury or disease attributable to a veteran’s use of tobacco products, including use during service.  38 U.S.C. § 1103; 38 C.F.R. § 3.300.
The preponderance of the evidence is against finding that the Veteran has lung nodules etiologically related to active service.  The appeal is accordingly denied.  In making this determination, the Board has considered the provisions of 38 U.S.C. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran’s claim. 
 
JOHN Z. JONES
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Shamil Patel, Counsel