Citation Nr: 21012675 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-53 139 DATE: March 4, 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, 1131, 5107; 38 C.F.R. §§ 3.102, 3.300, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1956 to March 1976 in the U.S. Air Force. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in February 2019, at which time the issue on appeal was remanded for further development. This case has now returned to the Board for appellate consideration. This case has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). The Veteran contends that his COPD had its onset during active service. Alternatively, he contends that his COPD is related to tobacco use during and after service and that his tobacco use is related to his service-connected generalized anxiety disorder with major depressive disorder. See January 2021 Correspondence. 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 bronchitis, chest pain, left pneumothorax, emphysema, coughing, and shortness of breath, and a March 1963 chest x-ray shows possible pleural cap or granulomatous disease. Accordingly, the Board finds that the first two elements of service connection are established. Regarding the third element, nexus, an addendum opinion was obtained in July 2020. The physician opined that the Veteran’s COPD was at least as likely as not incurred in or caused by service. The rationale stated that while the Veteran may not have been formally diagnosed with COPD until 1980, he had a long history of smoking, COPD typically takes years to develop, and the Veteran was seen by multiple providers and treated for chronic bronchitis during service, which is an older term for COPD, as is emphysema. Therefore, the physician concluded that the Veteran clearly was developing respiratory problems consistent with the diagnosis of COPD during service. The Veteran was afforded another VA examination in December 2020. The examiner opined that the claimed condition was less likely than not incurred in or caused by the in-service injury, event, or illness. The rationale stated that the Veteran’s COPD was likely caused by his long history of smoking during and after military service because his military history shows no excessive chronic exposures to dusts, vapors, fumes, and/or gases, which could cause occupational COPD. However, the examiner also opined that it is possible that the Veteran could have had symptoms of emphysema and COPD during service because his service treatment records document complaints of shortness of breath and he was treated for bronchitis several times during service. (Continued on the next page)   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 T. Kernen, 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.