Citation Nr: 21016050 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 16-44 512 DATE: March 19, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD), is granted. FINDING OF FACT VA and private medical opinions have linked the cause of the Veteran’s COPD to his chemical exposures during service. CONCLUSION OF LAW The criteria for entitlement to service connection for COPD have been met. 38 U.S.C. §§ 1110, 1113, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1969 to April 1971 with confirmed service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board in a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter was before the board in October 2019 where it was remanded for further development. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to herbicide exposure is granted. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disability, there must be (1) competent evidence of a current disability; (2) competent evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). VA regulations provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed to herbicides unless there is affirmative evidence to establish that the veteran was not exposed. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6)(iii). Certain diseases are deemed associated with herbicide exposure under current law, although COPD is not included among them. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). A veteran is entitled to the benefit of the doubt standard of proof for benefit claim decisions. 38 U.S.C. § 5107(b). The benefit of the doubt is applicable when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that his COPD was due to Agent Orange exposure and CS gas in service. In his June 2019 hearing he stated that he was exposed to a variety of different chemicals. He stated that in basic training and infantry training he had a difficult time recovering from the CS gas used as a part of the training. He further reported being gassed by the Vietcong while in Vietnam, walking through areas sprayed with Agent Orange, and exposure to smoke grenades on a constant basis. As the Veteran served in Vietnam, he is presumed to have been exposed to herbicide agents. He likewise credibly described his exposure to other chemicals (smoke grenades/CS gas) in both the training and field environments. In December 2019 the Veteran underwent a VA Respiratory Conditions Compensation and Pension Examination (C&P) where he was diagnosed to have COPD. This examiner, as well as an August 2019 private medical opinion linked the Veteran’s COPD to his chemical exposures during service. There are no medical opinions to the contrary. Given these facts, it may not be concluded the evidence preponderates against the claim. Accordingly, a basis upon which to establish service connection for COPD has been presented. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Johnson, 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.