Citation Nr: 21002473 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 18-04 776 DATE: January 13, 2021 ORDER Service connection for a respiratory disability, to include emphysema, chronic obstructive pulmonary disease (COPD), and mixed restrictive and obstructive lung disease, is granted. FINDING OF FACT The competent and probative evidence shows that the Veteran’s respiratory disability, to include emphysema, COPD, and mixed restrictive and obstructive lung disease, is at least as likely as not related to his active service. CONCLUSION OF LAW The criteria for service connection for a respiratory disability, to include emphysema, COPD, and mixed restrictive and obstructive lung disease, are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1963 to August 1967. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has previously been before the Board. In April 2019 the Board rendered a decision denying the Veteran’s claim. Thereafter, the Veteran appealed to the United States Court of Appeals for Veteran’s Claims (Court). In an April 2020 Joint Motion for Partial Remand (JMPR), the parties agreed to vacate and remand the part of the April 2019 Board decision that denied the Veteran’s claim for service connection for emphysema, asthma, and COPD. The Board relied on the September 2013 VA examination to render its decision. The examiner quoted from a medical treatise that smoking is the leading cause of COPD; however, he omitted the sentence “however, up to 25 percent of people with COPD never smoked.” The parties agreed to remand the claim to determine whether the qualification in the quoted medical treatise diminishes the probative value of the medical opinion or if further development is warranted. The Court granted the JMPR in an April 2020 Order, vacated the April 2019 Board decision, and remanded the appeal back to the Board. As per the April 2020 JMPR, a September 2020 Board remand requested a VA examination and for the examiner to specifically address the medical treatise in which the September 2013 VA examination relied upon, with particular interest in the above-mentioned omitted sentence. The record showed that the Veteran was afforded a VA examination in October 2020. The Board finds that there has been substantial compliance with its September 2020 remand directives. The Board has recharacterized the Veteran’s claims for asthma, emphysema, and COPD more broadly to a respiratory disability, to include emphysema, COPD, and mixed restrictive and obstructive lung disease, in order to clarify the nature of the benefit sought and ensure complete consideration of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for a respiratory disability, to include emphysema, COPD, and mixed restrictive and obstructive lung disease. The Veteran contends service connection for a respiratory disability. Specifically, the Veteran contends that while he was aboard the USS Oriskany, he breathed smoke and gasses for a couple of hours and spent several hours coughing toxins. See 8/22/2012 VA Form 21-4138. At the outset, the Board notes that the Veteran has a current diagnosis of emphysema, COPD, and mixed restrictive and obstructive lung disease. See 8/20/2013 Medical Treatment Record – Non-Government Facility, at page 3; see also 10/13/2017 CAPRI, at page 2; 8/20/2020 Disability Benefits Questionnaire – Veteran Provided, at page 1. As such, the first element of service connection is met. The Board will now analyze whether service connection is warranted by analyzing the second and third elements of service connection. As to the second element of service connection, the record showed that the Veteran was aboard the USS Oriskany in 1966 and that during that time, a magnesium flare accidentally ignited. See 9/30/1968 Military Personnel Record, at page 7 and 8; see also 6/21/2013 Correspondence, at page 5. Thus, the second element of service connection is also met. The question before the Board therefore becomes whether there is a so-called “nexus” between the Veteran’s respiratory disability, to include emphysema, COPD, and mixed restrictive and obstructive lung disease and service. During a VA examination in August 2013, the examiner provided a negative nexus opinion. The examiner relied on a medical treatise to render his opinion that the Veteran’s respiratory disability was due to the Veteran’s 45 years of smoking. See 9/26/2013 C&P Examination. The Board finds this opinion to have some probative value; however, as mentioned above, the examiner did not discuss relevant information in the cited treatise evidence. Additionally, the examiner did not examine the longitudinal medical record. In an addendum opinion from October 2020, the examiner opined that the Veteran’s current respiratory disability is not likely related to service. See 10/5/2020 C&P Examination. The Board finds this opinion to have some probative value; however, the examiner used the incorrect standard when he rendered his negative opinion. However, the Veteran provided a positive nexus opinion. The physician stated that inhalational exposure of combustible materials, such as smoke, is a risk factor for COPD. See 8/20/2020 Medical Treatment Record – Non-Government Facility. The examiner had access to more up to date medical information. For these reasons, the Board finds this opinion to have increased probative value. (Continued on the next page)   When resolving reasonable doubt in favor of the Veteran, and after review of the competent and probative evidence, the Board finds that service connection for a respiratory disability, to include emphysema, COPD, and mixed restrictive and obstructive lung disease, is warranted. 38 C.F.R. § 3.102. There is a positive medical statement that links the Veteran’s respiratory disability to his time in active service. As such, the Board finds that service connection for a respiratory disability, to include emphysema, COPD, and mixed restrictive and obstructive lung disease, is warranted. 38 C.F.R. § 3.303. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fuentes, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.