Citation Nr: 22018934 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 16-30 330 DATE: March 30, 2022 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is granted on a direct basis. FINDING OF FACT The probative evidence weighs in favor of finding that the Veteran's COPD was at least as likely as not caused by her in-service pneumonia. CONCLUSION OF LAW The criteria for entitlement to service connection for COPD have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service from June 1964 to March 1966. In October 2018, the Veteran testified at a Travel Board Hearing before the undersigned Veterans Law Judge. In a May 2019 Decision, the Board remanded the issue herein. In a January 2021 Decision, the Board denied the issue herein. In a November 2021 Joint Motion for Remand (JMR), the U.S. Court of Appeals for Veterans Claims (Court) vacated and remanded the May 2019 Board Decision. 1. Entitlement to service connection for COPD Direct service connection generally requires evidence showing: (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 (also known as "nexus"). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In some circumstances, lay evidence can be competent and sufficient to establish nexus when lay testimony describing lay-observable symptoms during service supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The March 1964 enlistment examination noted, in pertinent part, childhood pertussis; however, the provider wrote that there was no complications and no sequelae and the clinical evaluation of the lungs and chest was normal. In October 1964, service records note an upper respiratory infection (URI) with cough and cold for three days before being admitted to the hospital on October 28, 1964, for pneumonia of the lingular segment of the left upper lobe, requiring specialized treatment. In November 1964, in-service hospital records note, in pertinent part, viral pneumonitis that was "treated cured." The March 1966 separation examination did not indicate any respiratory symptoms or diagnoses (apart from the history of pertussis) and the clinical evaluation of the lungs and chest was normal. Private and VA records document recurring respiratory infections and problems (bronchitis, URI's, COPD) after separation, including, but not limited to: URI in November 1978; URI in February 1989; bronchitis in January 1991; URI in October 1991; URI in December 1993; URI in November 1994; URI in February 1995; URI in September 1996; bronchitis in November 2003; bronchitis in February 2005; URI in November 2009; emphysema/COPD in March 2013; and bronchitis in January 2016. See November 1978 Huntington VAMC record; November 1996 Emergi-Care record; November 2003 Huntington VAMC record; February 2005 Huntington VAMC record; November 2009 St. Johns Medical Center record; March 2013 Huntington VAMC record; January 2016 Huntington VAMC record. In the April 2015 VA Form 21-4138, the Veteran contended that her COPD was due to the pneumonia that was contracted and treated in service. In the December 2015 Notice of Disagreement (NOD), the Veteran contended that: (a) despite the notation of "cured" in the service records, she did not believe the pneumonia was ever cured because she has had recurring respiratory infections and problems ever since, especially bronchitis; (b) she has never smoked; (c) she was unaware of occupational exposures (dental assistant, nurse's aid, sewing and making cornices at drapery shop) increasing her risk of COPD; and (d) after the in-service pneumonia, the in-service providers did not check for residual scar tissue in the lungs. In the June 2016 VA Form 9, the Veteran contended that: she has had recurring respiratory infections and problems since the in-service pneumonia; the scarring on her lung (fibrosis) was never addressed; and the COPD was diagnosed as a generic term to encompass the changes to her lungs associated with the chronic bronchitis and pneumonia. In the July 2016 VA Form 646, the Veteran further contended that the in-service pneumonia was the onset for the recurring, related respiratory infections and lung and breathing issues. During the October 2018 Board Hearing, the Veteran testified that: she has experienced bronchitis once or twice a year since service, usually in the wintertime; she used her allergy medication/inhaler year-round to try to prevent bronchitis and pneumonia; and she has never smoked. In a January 2020 VA examination, the Veteran reported the in-service hospitalization for pneumonia (which took her 4 to 6 weeks to recover) and continued problems with bronchitis, pneumonia, and colds ever since. The January 2020 VA examiner rendered an unfavorable etiological opinion; however, the Board will not discuss it because the Court found it inadequate in the November 2021 JMR. Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007); Ardison v. Brown, 6 Vet.App. 405, 407 (1994); Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008). In a September 2020 addendum opinion, a VA examiner also rendered an unfavorable etiological opinion; however, the Board will not discuss it because the Court also found it inadequate in the November 2021 JMR. Stefl, supra; Ardison, supra; Nieves-Rodriguez, supra. (Continued on the next page) The Court's November 2021 JMR and the Veteran's March 2022 Brief requested a new etiological opinion by a qualified examiner (pulmonologist or related expertise) that properly considered and addressed the Veteran's treatment history, including the private and VA records reflecting complaints of respiratory disorders other than allergic rhinitis, and her lay statements that she uses her inhaler and allergy medication to prevent bronchitis and pneumonia. However, the Board finds that other probative evidence already of record weighs in favor of finding that the Veteran's COPD was at least as likely as not caused by her in-service pneumonia. Specifically, the Board highlights that the evidence fails to show any pertinent abnormalities upon entrance to service but recurring respiratory infections since separation (including, but not limited to, chronic bronchitis, which is a type of COPD). Further, the Veteran's competent and consistent reports of lay-observable respiratory symptoms since the in-service pneumonia buttress the conclusion that the chronic bronchitis (in this case, non-smoking related COPD) repeatedly diagnosed after separation was at least as likely as not caused by the restrictive or obstructive lung function deficits beginning during the October 1964 pneumonia. Thus, the Board grants the claim on a direct basis, resolving the claim in full. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Daus, 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.