Citation Nr: 21070652 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 18-45 111 DATE: November 24, 2021 REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to herbicide agent exposure and tobacco use disorder, is remanded. Entitlement to service connection for tobacco use disorder, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran had active duty service in the United States Army from January 1968 to January 1971. The Veteran died in December 2020. The Agency of Original Jurisdiction (AOJ) RO granted the appellant's request to be substituted (under 38 U.S.C. § 5121A ) in the Veteran's appeal and informed her of the decision by a letter dated in May 2021. Accordingly, the appellant has been substituted as the claimant for the purposes of the issues on appeal. This matter stems from a May 2018 rating decision that denied service connection for COPD with lung nodules and tobacco use disorder due to service-connected PTSD because neither condition occurred in nor was caused by service. The Veteran appealed in June 2018; however, the issues were again denied in a September 2018 statement of the case. The Veteran then submitted a substantive appeal in September 2018. In July 2019, the Board of Veterans' Appeals (Board) remanded the issue of service connection for COPD to obtain an addendum medical opinion to address the nature and etiology of the Veteran's COPD. The Board also denied entitlement to service connection for tobacco use disorder as secondary to service-connected PTSD, noting that tobacco use is not a disability for which service connection can be granted. The Veteran appealed the Board's decision pertaining to service connection for tobacco use disorder to the United States Court of Appeals for Veterans Claims (Court). In a May 2020 Order, the Court entered a Joint Motion for Partial Remand of the parties, vacating the portion of the Board's decision that denied entitlement to service connection for tobacco use disorder as secondary to service-connected PTSD and remanding the matter to the Board for readjudication. The JMPR entered by the Court noted that the Board erred when it failed to provide an adequate statement of reasons or bases when it denied service connection for tobacco use disorder as secondary to service-connected PTSD. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). In a May 2020 supplemental statement of the case, the AOJ denied again service connection for COPD, to include as due to herbicide agent exposure. In November 2020, the Board remanded the Veteran's appeal to obtain VA treatment records since June 2020 to the present and to associate with the claims file any outstanding scanned private pulmonary records in VA's possession related to treatment in August and April 2019 that were referenced in treatment records dated August 21, 2019 and April 10, 2019. Once all available relevant medical records were received and associated with the claims file, the AOJ was directed to obtain an addendum medical opinion to address the nature and etiology of the Veteran's COPD. The examiner was asked to determine whether the Veteran's service-connected PTSD caused or aggravated the use of tobacco products after service; whether his use of tobacco products as a result of service-connected PTSD was a substantial factor in causing COPD; and whether the Veteran's COPD would not have occurred but for the use of tobacco products caused by the service-connected PTSD. The Board specifically referenced studies that the Veteran's representative submitted in May 2020, which indicate a link between PTSD and smoking, that the Board wanted the examiner to consider when forming their opinions. 1. Entitlement to service connection for COPD, to include as due to herbicide agent exposure and tobacco use disorder, is remanded. 2. Entitlement to service connection for tobacco use disorder, to include as secondary to service-connected PTSD, is remanded. Pursuant to the November 2020 Board remand directives, an addendum medical opinion was obtained in September 2021. The September 2021 examiner opined that the Veteran's COPD was "unequivocally not due to nor has it been aggravated beyond its natural course by the Veteran's PTSD, depression, and anxiety." He explained that there is no physiologic or anatomic mechanism by which psychological conditions can impact COPD as to cause or aggravate. He further explained that there was no evidence of aggravation of the Veteran's COPD beyond its natural course. He stated that although the Veteran's course was severe and aggressive, it was less likely than not that the Veteran's course was aggravated beyond the nature course due to any cause. While the examiner did generally cite to Cecil's and/or Harrison's textbooks of internal medicine, he did not actually explain how he determined that Veteran's COPD was not aggravated beyond natural progression by any cause, to include PTSD. The examiner then explained that the Veteran's COPD was caused by the Veteran starting to smoke at an early age in combination with a long history of heavy smoking. He stated that the predictors of continued smoking addiction are smoking itself, early onset of smoking, and a significant pack per year history, all of which the Veteran had well before he was diagnosed with PTSD. He restated that there was no evidence of aggravation beyond the natural course of COPD, which is naturally progressive. He then noted that there was no evidence of aggravation of the Veteran's smoking addiction due to PTSD, but then stated that any amount of smoking would propagate ongoing COPD. The examiner elaborated on his opinion by stating that the Veteran's addiction to cigarettes/tobacco began prior to service, noting that the Veteran had an over forty year history of heavy smoking. He explained that there was no indication in the mental health records that the Veteran's smoking addiction was made worse by PTSD or related psychological comorbidities. The examiner stated that it was almost certain that the Veteran would have gotten COPD with or without PTSD and related comorbidities. He explained that the single greatest cause of COPD is related to smoking, especially early, heavy smoking as exhibited by the Veteran. He therefore concluded that it was less likely than not that the Veteran's COPD was related to heavier smoking exhibited due to PTSD. He stated that there was no evidence to suggest that the Veteran smoked more due to PTSD. He further stated that the Veteran was already addicted to smoking by the time he was diagnosed with PTSD. He surmised that the Veteran early and heavy smoking history was the reason for his COPD, not his PTSD. The Board finds that the rationale provided by the September 2021 VA examiner is inadequate for decision-making purposes. Although the examiner noted that the Veteran had a long history of smoking which began prior to service, and a history of heavy smoking that began prior to his PTSD diagnosis, the examiner did not discuss how the Veteran's smoking changed throughout the years. Throughout his post-service treatment records the Veteran reported that he had been smoking since the 1960s; however, the exact year he started differs. In a February 2009 smoking cessation group note, the Veteran reported that his smoking originated in Vietnam. While this statement may not be entirely accurate because the Veteran's entrance examination noted that he smoked, he may have been reporting the period of time during which he started smoking more heavily. An August 2007 pulmonary consultation record notes that the number of cigarettes the Veteran smoked per day increased when he experienced stressors. See Medical Treatment Record Non-Governmental Facility, received August 2011. Further, although the September 2021 VA examiner noted that the Veteran's smoking did not increase after his PTSD diagnosis, the examiner did not address whether the Veteran's smoking increased following his reported in-service PTSD stressors, specifically the stressor of being stationed near a morgue in Vietnam where he would see bodies in body bags. As it is documented in the Veteran's post-service treatment records that the Veteran smoked more cigarettes due to stressors, the examiner should discuss whether the Veteran's in-service PTSD stressors led him to start smoking more heavily than before experiencing those stressors. Additionally, the VA examiner did not address the studies submitted by the Veteran's representative in May 2020 that suggest that some people with PTSD smoke because they believe smoking helps alleviate their PTSD symptoms. Consequently, a new medical opinion should be remanded to obtain a new medical opinion that addresses whether the number of cigarettes the Veteran smoked increased as a result of his in-service PTSD stressor, and if so, whether that increase was sufficient to make it a substantial factor in causing the Veteran's COPD. There is also some question as to whether the AOJ fully complied with the November 2020 Board remand directives to associate the outstanding scanned private pulmonary records in VA's possession related to treatment in August and April 2019 treatment records (titled "Pulmonary Outside Medical Record Note" and referencing scanned documents) with the Veteran's electronic claims file prior to obtaining an addendum medical opinion. These records were associated with the electronic claims file after the addendum medical opinion had been obtained, so the September 2021 VA examiner was unable to review and consider these treatment records when he provided his addendum opinion. Accordingly, upon remand, the VA examiner should review these treatment records prior to providing a new medical opinion. The matter is REMANDED for the following action: Forward the claims file, including a copy of this remand, to a qualified examiner to obtain an addendum opinion as to the nature and etiology of the Veteran's COPD. All pertinent evidence of record must be made available to and reviewed by the examiner. After reviewing the record, the examiner is asked to provide opinions as to the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's service-connected PTSD caused the Veteran's use of tobacco products during and/or after service? (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's tobacco use disorder underwent any incremental increase in disability, regardless of its permanence, due to any service connected disability, to include PTSD. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. (c.) If it is determined that the Veteran's tobacco use disorder was caused or aggravated by his PTSD, is it at least as likely as not (50 percent or greater probability) that the use of tobacco products was a substantial factor in causing COPD? (d.) If it is determined that the Veteran's tobacco use disorder was caused or aggravated by his PTSD, is it at least as likely as not (50 percent or greater probability) that the Veteran's COPD underwent any incremental increase in disability, regardless of its permanence, due the tobacco use disorder. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. The examiner is asked to consider the studies referenced in the May 2020 submission by the Veteran's/Appellant's representative that suggest that some people with PTSD smoke because they believe smoking helps alleviate their PTSD symptoms. The examiner is also asked to consider the August 2007 pulmonary consultation record which notes that the number of cigarettes the Veteran smoked per day increased when he experienced stressors. Based on these studies and the aforementioned August 2007 treatment record, the examiner is asked to address whether the Veteran's in-service PTSD stressors caused him to smoke more tobacco per day or per year than he did prior to experiencing those stressors, and if so, whether that increase in tobacco use caused or aggravated his COPD. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fairlie, 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.