Citation Nr: 21009675 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-11 878 DATE: February 23, 2021 ORDER Service connection for a lung condition, to include chronic obstructive pulmonary disease (COPD), is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, he is shown to have a lung condition diagnosed as COPD that is reasonably shown to be related to his military service. CONCLUSION OF LAW The criteria for service connection for a lung condition, to include COPD, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1972 to August 1992. A videoconference hearing was held before the undersigned Veterans Law Judge in May 2018. A hearing transcript is of record. In August 2018, the Board issued a decision that, in pertinent part, denied service connection for a lung condition associated with pneumonia. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In May 2019, the Court vacated the Board’s August 2018 decision and remanded the matter on appeal for adjudication consistent with the instructions outlined in a Joint Motion for Partial Remand (JMR) by the parties. In December 2019, the case was remanded for additional development. Service Connection The Veteran testified at a hearing before the Board in May 2018 that he believed he had a lung condition that was either related to the pneumonia he experienced in service or to the asbestos he was exposed to in service. See Hearing Transcript. The Board concludes that the Veteran has a current diagnosis of COPD that is reasonably shown to be related to his exposure to his military service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In this regard, the record shows that at the time of the Board’s August 2018 decision, the Veteran was not found to have a current diagnosis of pneumonia or a lung condition, including COPD. It was further noted that at the May 2018 Board hearing, the Veteran had also testified that he did not have a current disability related to the lung. He had, however, testified that he used a breathing machine on a regular basis and carried a pocket inhaler, and that he believed his need for the breathing device was related to his military service because he did not have a past history for smoking cigarettes. In the May 2019 JMR, it was pointed out that in addition to the Veteran’s characterization of his disability at the hearing, his VA treatment records also included diagnoses of unspecified sleep apnea or obstructive sleep apnea and dyspnea. The Board was, therefore, asked to consider whether these disabilities were reasonably encompassed within his claim of service connection for a lung condition associated with pneumonia. In December 2019, the Board remanded the claim for a VA examination that considered the nature and etiology of any lung condition, including obstructive sleep apnea and dyspnea, as well as symptoms that included fatigability, chest discomfort, and lightheadedness. As a result of the additional VA examinations conducted in April 2020, the Veteran was not shown to have a diagnosis of chronic fatigue syndrome; however, he was shown to have diagnoses of obstructive sleep apnea (diagnosed in 2007) and COPD (diagnosed in 2017). Thus, the question becomes whether the currently diagnosed disabilities are related to service. On this question there are probative opinions in favor of and against the claim. Regarding the COPD, the examiner opined it was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran had no issues with COPD prior to his military service and that the onset of the condition was during service when he was serving as an infantry soldier. The examiner noted that during missions, the Veteran would have been exposed to multiple toxins, including asbestos and paint fumes in the 1970s when materials did not have the Occupational Safety and Health Administration (OSHA) compliance requirements. The examiner further stated that scarring in the bilateral lungs had led to COPD, and that there was evidence of a current, chronic, and continuous treatment and care since 2007; therefore, a nexus was established. Regarding the sleep apnea, an addendum medical opinion was obtained in September 2020 because the examiner did not provide one in April 2020. It was opined that the Veteran’s sleep apnea was less likely than not proximately due to or the result of an in-service injury, event, or disease, including his exposure to asbestos and/or the in-service treatment of pneumonia. The examiner explained that sleep apnea was not caused by pneumonia or asbestos exposure. Rather, it was characterized by the narrowing or collapse of the pharyngeal airway during sleep, and the anatomical variations in the craniofacial features and/or neck. The examiner then concluded that as the Veteran’s sleep apnea did not occur until years after his separation from service, and because it was not caused by pneumonia or asbestos exposure, these conditions were not responsible for his current condition. Upon review of the record, the Board finds that while the evidence does not support a finding that the Veteran’s obstructive sleep apnea is related to his military service, the evidence is at least in equipoise as to whether his current COPD is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for COPD is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Churchwell, 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.