Citation Nr: 18159479 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 17-16 264 DATE: December 19, 2018 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) (also claimed as emphysema), to include as secondary to the service-connected asbestos is granted. FINDING OF FACT The Veteran’s COPD was aggravated by his service-connected asbestosis. CONCLUSION OF LAW The criteria for a grant of service connection for COPD, as secondary to service-connected asbestosis, have been met. 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION On August 16, 2018, the Federal Circuit ordered the appeal of Procopio v. Wilkie, No. 17-1821 (U.S. Fed. Cir.). The order stated that the questions before the Federal Circuit include the following: “Does the phrase ‘served in the Republic of Vietnam’ in 38 U.S.C. § 1116 unambiguously include service in offshore waters within the legally recognized territorial limits of the Republic of Vietnam, regardless of whether such service included presence on or within the landmass of the Republic of Vietnam?” As of the date of this decision, Procopio is pending. As this appeal contains two issues, specifically entitlement to service connection for hypertension and entitlement to service connection for coronary artery disease, that may be affected by the resolution of Procopio, the Board will “stay” or postpone action on these matters. The remaining COPD issue on appeal is not affected and will be considered below. Chronic Obstructive Pulmonary Disease (COPD) The Veteran is seeking service connection for COPD. He contends that this disability is a result of his service connected asbestos. In general, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 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 or injury was incurred in service. See 38 C.F.R. § 3.303 (d). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection may be established on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. As an initial matter, the Board notes that the Veteran was diagnosed with COPD in 2013 and a current disability has therefore been demonstrated. With respect to the question of whether COPD is due to service, the Veteran’s service treatment records show no in-service complaints, treatment, or diagnosis for any lung or chest issues. During his January 1972 separation examination, the Veteran’s lungs and chest were examined and no abnormalities were identified. Therefore, element II for direct service connection, evidence of in-service incurrence or aggravation of a disease or injury, has not been met. With respect to the question of whether the Veteran’s COPD is secondary to his service-connected asbestosis, he was afforded a VA examination in August 2015. The examiner opined that the Veteran’s COPD is less likely than not (less than 50% probability) proximately due to or the result of his service-connected asbestosis. He reasoned that “overwhelmingly the most important risk factor for COPD is cigarette smoking and the amount and duration of smoking and that the Veteran smoked one pack of cigarettes per day from 1949 until 1989. He further provided that the medical literature shows that pulmonary disorders associates with asbestos exposure include asbestosis, pleural disease, and malignancies such as carcinoma and malignant mesothelioma, but medical literate shows no link between asbestosis and the development of COPD. In an February 2017 VA medical opinion, after reviewing the Veteran’s claims file, a VA physician was unable to determine a baseline of severity of the Veteran’s COPD based upon medical evidence prior to aggravation or the earliest medical evidence following aggravation by asbestosis. He reasoned that the Veteran was not diagnosed with COPD until 2013. He further provided that the Veteran was diagnosed with service-connected asbestosis in 2009, and the Veteran reported having asbestos findings dating back to the 1990’s. Based on the record a baseline level of severity could not be established. Nonetheless, the physician opined that the Veteran’s COPD was at least as likely as not aggravated beyond its natural progression by the service-connected asbestosis. He pointed out that cigarette smoking is the most important risk factor associated with COPD land that the Veteran smoked one pack of cigarettes per day for 40 years. However, the VA physician also cited peer reviewed medical journal article, (“Parenchymal and Airway Disease is Caused by Asbestosis” in Current Opinion in Pulmonary Medicine 2010, 16:155-161), that concluded that smoking was the number one cause of COPD, but occupational exposure to asbestos may lead to further worsening. Therefore, he found that it was reasonable to conclude that the Veteran’s COPD is at least as likely as not aggravated beyond its natural progression by his service-connected asbestosis. The Board finds the February 2017 VA physician’s opinion very probative as it was supported adequate rationale including cited medical literature. (Continued on the next page) In conclusion, for these reasons, the Board finds that the evidence favors a finding the Veteran’s COPD was aggravated beyond natural progression by his service connected asbestosis and service connection for COPD on a secondary basis is granted. M. Donohue Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Davis, Associate Counsel