Citation Nr: 21025634 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-24 372 DATE: April 28, 2021 ORDER Entitlement to service connection for a pulmonary disability, claimed as residuals of double pneumonia, to include as secondary to asbestos exposure, is granted. FINDING OF FACT 1. The Veteran’s pulmonary disability clearly and unmistakably existed prior to service. 2. The Veteran’s pre-existing pulmonary condition was aggravated beyond its natural progression by his military service. 3. The Veteran’s current pulmonary disability is related to the aggravation of his pre-existing pulmonary condition during service. CONCLUSION OF LAW The criteria for entitlement to service connection for a pulmonary disability, claimed as residuals of double pneumonia, to include as secondary to asbestos exposure, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.3.04, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1969 to April 1971, to include service in Vietnam. In March 2019, the Board remanded the above issue to obtain a VA opinion on the etiology of the Veteran’s lung condition, which was obtained in December 2019. Therefore, the Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a pulmonary disability, claimed as residuals of double pneumonia, to include as secondary to asbestos exposure, is granted. The Veteran contends that his pulmonary disability is related to his military service, to include as due to asbestos exposure while in service. At the outset, the Board notes that, having served in Vietnam during the applicable time period, the Veteran is presumed to have been exposed to Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). VA laws and regulations provide that if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation. The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32, 395-32, 407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21, 260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). The Board notes that 38 C.F.R. § 3.309(e) specifically lists those diseases covered by the provision, and the list does not include a pulmonary condition for which the Veteran is currently diagnosed. Therefore, service connection cannot be granted on a presumptive basis. Therefore, the Board will consider whether the Veteran’s service connection claim for a pulmonary disability may be granted on a direct basis. First, the Board notes that the Veteran has diagnoses of chronic obstructive pulmonary disease (COPD) and emphysema. See December 2019 VA examination. In addition, VA treatment records show that the Veteran has reticular and cystic changes in the bases of his lung consistent with fibrosis. See January 2018 VA treatment record. Therefore, the first element of service connection, a diagnosis, has been met. The Board notes that the evidence suggests that the Veteran’s pulmonary disability may have preexisted his military service. Specifically, the Veteran’s pre-induction examination indicates that he suffered from shortness of breath. See Pre-Induction Report of Medical History, July 1969. The physician’s summary attributed the Veteran’s shortness of breath to smoking. Id. Therefore, the Board will first consider whether the Veteran’s pulmonary disability preexisted his military service. Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. In the present case, no pulmonary disability was noted at the Veteran’s entry into service, thus the presumption of soundness attaches. VA’s Office of General Counsel has issued a precedent opinion holding that in order to rebut the presumption of soundness in 38 U.S.C. § 1111, VA must demonstrate by clear and unmistakable evidence both that the disease or injury in question existed prior to service and that it was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. As to whether the Veteran’s pulmonary condition preexisted service, the December 2019 VA examiner opined that it did. The examiner reasoned that the Veteran’s entrance examination clearly stated that the Veteran had shortness of breath from smoking. The examiner noted that smoking is the leading cause of COPD and emphysema. The examiner’s opinion is probative, because it discusses the evidence of record, including his service treatment records, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In light of the December 2019 VA examiner’s opinion, the Board finds that clear and unmistakable evidence reflects that the Veteran’s pulmonary disability preexisted the Veteran’s period of active duty service, and the presumption of soundness has been rebutted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Hence, the only remaining question is whether clear and unmistakable evidence indicates that the preexisting disorder was not aggravated by service. In December 2019, the VA examiner opined that the Veteran’s lung condition, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner reasoned that the Veteran’s entrance examination clearly stated that the Veteran had shortness of breath from smoking. The examiner noted that smoking is the leading cause of COPD and emphysema. The Veteran’s service treatment records note that the Veteran had pneumonia while in service, but it was acute. According to the Veteran’s separation exam, no lung issues were noted. Pneumonia cannot cause COPD or emphysema, so the examiner concluded that a progression from this is not possible. However, the examiner noted that exposure to toxins, dust and other environmental factors while deployed in Vietnam would affect the Veteran’s lung function and aggravate his already pre-existing condition beyond natural progression. His history of heavy smoking over several decades is the cause of these lung diseases, but the examiner opined that exposure to toxins while in Vietnam aggravated the condition. COPD is defined as a disease in which inflammation causes a person’s lung to become damaged. Though it is primarily caused by smoking, the examiner noted that about 15 percent of sufferers develop COPD after exposure to chemicals, dust, and fumes. Left untreated, the examiner noted that the COPD sufferer finds that breathing becomes increasingly labored and experiences symptoms such as wheezing, constant coughing and recurring upper respiratory infections. The VA examiner’s opinion with respect to aggravation is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, the Board finds that the evidence of record supports the December 2019 VA examiner’s findings. In light of the above, the Board finds that clear and unmistakable evidence reflects that the Veteran’s pulmonary disorder preexisted the Veteran’s period of active service and such disability was aggravated by such service, and that his current pulmonary problems are related to the aggravation of his pre-existing condition during service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Accordingly, the claim is granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. E. Grossman, 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.