Citation Nr: 21064365
Decision Date: 10/19/21	Archive Date: 10/19/21

DOCKET NO. 11-08 497
DATE: October 19, 2021

ORDER

Service connection for chronic obstructive pulmonary disease (COPD) is granted.

FINDING OF FACT

Resolving reasonable doubt in the Veteran's favor, his COPD had its onset during active service.

CONCLUSION OF LAW

The criteria for service connection for COPD are met. 38 U.S.C. §§ 1103, 1110, 5107; 38 C.F.R. §§ 3.102, 3.300, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service in the United States Army from September 1961 to August 1963 and from September 1963 to September 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision. The Board remanded the claims in April 2021 to obtain a medical opinion. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998).

The Veteran contends that his COPD had its onset during active service. 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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 disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Notwithstanding any other provision of law, for claims filed after June 9, 1998, a veteran's disability or death shall not be considered service-connected on the basis that it resulted from injury or disease attributable to the veteran's use of tobacco products during service. 38 U.S.C. § 1103(a); 38 C.F.R. § 3.300(a). This provision does not preclude the establishment of service connection for a disability or death from a disease or injury which is otherwise shown to have been incurred or aggravated in military, naval, or air service or which became manifest during service or to a requisite degree of disability during any applicable presumptive period. 38 U.S.C. § 1103(b); 38 C.F.R. § 3.300(b).

The Veteran's medical records show a current diagnosis of COPD. Additionally, his service treatment records show treatment for chest pains and chronic cough. Accordingly, the Board finds that the first two elements of service connection are established.

Regarding the third element, nexus, an opinion was obtained in July 2021 regarding the etiology of the Veteran's diagnosed COPD. The physician opined that the Veteran's COPD was at least as likely as not incurred in or caused by service. Specifically, the examiner found that the Veteran's COPD had its onset during his active military service because the Veteran's COPD is due to smoking tobacco since he was 24 while in the military, and the Veteran's COPD symptoms started before he retired from the military. Further, the examiner noted the Veteran's COPD symptoms began around 1978, while the Veteran was still in the military, and has gradually worsened over subsequent years. 

Based on the foregoing, after resolving reasonable doubt in the Veteran's favor, the Board finds that it is at least as likely as not that his COPD symptoms arose during service. While a current disability cannot be linked to service through in-service use of tobacco, a disability caused by tobacco that arises in service is still eligible for service connection. See 38 C.F.R. § 3.300 (b). Accordingly, service connection for COPD is granted. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

 

 

JOHN Z. JONES

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Jorge Barroso, 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.