Citation Nr: 21071407 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-24 656A DATE: November 30, 2021 ORDER Entitlement to service connection for a respiratory disorder, diagnosed as chronic obstructive pulmonary disease (COPD), is granted. FINDING OF FACT Resolving any reasonable doubt in his favor, the Veteran has COPD related to his military service. CONCLUSION OF LAW COPD was incurred in active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1973 to December 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The Board remanded the case for additional development in September 2019 for additional development. That development was completed, and the case has since been returned to the Board for appellate review. The Board notes that the appeal had also originally included the issues of entitlement to service connection for a right shoulder disorder, a left shoulder disorder, a left foot disorder, a left elbow disorder, and gastroesophageal reflux disease (GERD). However, in a March 2021 rating decision, the agency of original jurisdiction (AOJ) granted service connection for those disabilities. The grant of service connection for those issues constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, those matters are no longer in appellate status. See Grantham, 114 F.3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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 was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is entitled to service connection for a respiratory disorder. The service treatment records are negative for any complaints, treatment, or diagnosis of a chronic respiratory disorder. However, during the June 2019 hearing, the Veteran asserted that exposures in service caused him to develop a respiratory disorder. In this regard, he testified that his duties required him to run a machine that used oil to produce a smokescreen and that he operated gas chambers for training purposes. The Veteran also indicated that he did not wear a protective mask and inhaled the smoke and gas. A layperson is competent to report on matters of which he or she has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Moreover, the Veteran's service personnel records show that he served as a smoke and flame specialist with the 46th Chemical Company in Fort Hood, Texas, and a smoke operations specialist with the 172nd Chemical Company in Fort Riley, Kansas. He also served as a platoon sergeant with the 25th Chemical Company in Germany and a chemical operations specialist with the 82nd Airborne Division at Fort Bragg, North Carolina. Thus, his service records corroborate his hearing testimony regarding in-service exposures. During a November 2012 VA examination, the Veteran was noted to have a diagnosis of COPD. The examiner found that there was no evidence that the Veteran had any recurrent pulmonary condition during service and that the diagnosis of COPD was likely due to his history of cigarette smoking. However, the examiner did not address the Veteran's exposures in service. A March 2020 VA examiner also opined that that the Veteran's COPD was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. She noted that he was diagnosed with COPD after service in 2012 and the Veteran's history of tobacco use and exposure to secondhand smoke as a child, which medical literature indicates is the most common cause of COPD. The examiner also found that the intermittent days of occupational exposure in service is measurably less compared to the daily tobacco exposure over his lifetime. Thus, she found that the Veteran's COPD was instead at least as likely as not caused by decades of tobacco exposure. A March 2021 VA examiner later acknowledged the Veteran's report that he was exposed to fog oil smoke and diesel oil smoke used for smoke screens daily during his military service. It was also noted that the Veteran indicated that he did not wear respiratory protection. The examiner stated that it is likely that the inhalation of those smokes is toxic to the respiratory tract and commented that the Army now requires respiratory protection for soldiers exposed to such smoke. He also noted that the Veteran began smoking at age 17 and reported a history of smoking half a pack per day on average. The Veteran had reported that he started experiencing shortness of breath and respiratory symptoms at age 32 in 1988 age 32, which the examiner indicated is a quite young age to develop COPD from smoking, as most patients are at least 40 and usually older when they develop COPD. He indicated that an exception would be a rare genetic condition (alpha anti-trypsin deficiency). Thus, he believed that the early onset was indicative of lung damage from fog oil smoke and diesel oil smoke in service. The law is clear that it is the Board's duty to assess the credibility and probative value of evidence, and provided that it offers an adequate statement of reasons and bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. App. 488 (1995) (the Board may adopt a particular independent medical expert's opinion for its reasons and bases where the expert has fairly considered the material evidence of record). The Board, of course, is not free to reject medical evidence on the basis of its own unsubstantiated medical conclusions. Flash v. Brown, 8 Vet. App. 332 (1995). As previously noted, the November 2012 VA examiner did not address the Veteran's exposures in service. Therefore, the opinion has limited probative value. The March 2020 and March 2021 VA examiners both reviewed the Veteran's claim file and considered his exposures in service and his tobacco use. However, the March 2020 VA examiner also relied, in part, on speculation that the Veteran had significant exposure to secondhand smoke simply because his father also had COPD. However, the evidence of record does not indicate whether the Veteran actually had secondhand exposure to smoke from his father. Moreover, the March 2020 VA examiner did not address the age of onset, which the March 2021 VA examiner found unusual for COPD caused by tobacco use. Based on the foregoing, the Board finds that there is reasonable doubt as to whether the Veteran's COPD is related to his exposures in service. Accordingly, resolving any reasonable doubt in his favor, the Board concludes that service connection is warranted for a respiratory disorder, diagnosed as COPD. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote 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.