Citation Nr: 1110295 Decision Date: 03/15/11 Archive Date: 03/30/11 DOCKET NO. 04-07 930 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for asthma, obstructive lung defect, to include as due to chemical exposure in service. 2. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Theodore C. Jarvi, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1977 to February 1979. She was a full-time Air National Guard civilian employee from September 1983 to March 1998 and from November 1990 to July 2000. She had Active Duty for Training (ACDUTRA) in the Air National Guard on the following dates: February 9 to 10, 1984; August 27 to 31, 1984; January 21 to 25, 1985; January 28 to February 1, 1985; March 5 to 9, 1995; May 22 to 24, 1995; July 11 to 14, 1995; July 18 to 21, 1995; August 10 to 11, 1995; June 2 to 6, 1996; July 22 to 29, 1996; August 5 to 10, 1996; August 30, 1996, to September 7, 1996; December 14 to 18, 1996; February 3 to 4, 1997; February 23 to 28, 1997; April 21 to 25, 1997; April 28, 1997, to May 1, 1997; May 3 to 9, 1997; October 18 to 20, 1997; November 2 to 6, 1997; January 25 to 28, 1998; March 8 to 12, 1998; July 26, 1998, to August 1, 1998; September 1 to 2, 1998; September 21, 1998; September 28, 1998; October 5 to 8, 1998; November 4 to 6, 1998; March 28, 1999, to April 2, 1999; June 26, 1999; August 16 to 20, 1999; August 23, 1999; August 30, 1999; September 20, 1999; September 27, 1999; October 3 to 8, 1999; October 31, 1999, to November 1, 1999; January 4 to 7, 2000; January 11 to 13, 2000; January 19 to 21, 2000; and January 24, 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2002 decision by the Department of Veterans Affairs (VA) Regional Office in Phoenix, Arizona. In August 2005, the Veteran testified before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims file. This case was previously before the Board in February 2006 when it was remanded for further development. This case was previously before the Board in April 2010 when it was referred to the Veterans Health Administration (VHA) for a medical expert opinion. An opinion was obtained in October 2010 and a copy of this opinion was sent to the appellant and her representative in November 2010. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The competent medical evidence shows that the Veteran's asthma, obstructive lung defect, is proximately due to exposure to jet exhaust and 1,1,1 trichloroethane in service. CONCLUSION OF LAW Asthma, obstructive lung defect, was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks entitlement to service connection for asthma, obstructive lung defect, to include as secondary to chemical exposure in service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604(Fed.Cir.1996). The term "Veteran" is defined in 38 U.S.C.A. § 101(2) as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." The term "active military, naval, or air service" includes active duty, and "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a); see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). Active duty for training (ACDUTRA) is defined, in part, as "full-time duty in the Armed Forces performed by Reserves for training purposes." 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). The term inactive duty training (INACDUTRA) is defined, in part, as duty, other than full-time duty, under sections 316, 502, 503, 504, or 505 of title 32 [U. S. Code] or the prior corresponding provisions of law. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Thus, with respect to the Veteran's National Guard service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110; 38 C.F.R. §§ 3.6, 3.303, 3.304. Service connection is generally not legally merited when a disability incurred on INACDUTRA results from a disease process. See Brooks v. Brown, 5 Vet. App. 484, 487 (1993). Certain evidentiary presumptions, such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service--are provided by law to assist Veterans in establishing service connection for a disability or disabilities. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.304(b), 3.306, 3.307, 3.309. The advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve Veteran status for purposes of that claim."). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the Veteran. In a March 1998 Department of the Air Force Memorandum, the Veteran was noted to have been exposed to 1,1,1 trichloroethane. In a private treatment note, dated in November 1998, the Veteran was noted to be diagnosed with exercise induced asthma, by history. In a March 1999 Department of the Air Force Indoor Air Quality Investigation Memorandum, the Environmental Office was noted to have completed an indoor air quality investigation of the Contracting Office on February 2, 1999. It was reported that the investigation revealed high readings for carbon dioxide, including a high reading of 1780 parts per million during the February drill. It was noted that 800 parts per million of carbon dioxide indicates sufficient ventilation and that there is "no implication of health effects associated with this level of carbon dioxide, or any implication of a permissible exposure limit." In August 1999, the Veteran was examined by Dr. N.G. The Veteran indicated that she had, among other complaints, breathing problems. Dr. N.G. noted that memorandums in the Veteran's records indicated that the Veteran had been exposed to high levels of carbon dioxide and to trichloroethane. Dr. N.G. concluded that there were multiple reasons for the Veterans symptomology as it related to the environment of her workplace and indications are that the Veteran was suffering from toxic exposures resulting in a definite symptomology. Dr. N.G. stated that since the Veteran moved to a new building her symptoms had begun to resolve. In November 1999, the Veteran underwent a private examination by Dr. J.S. The Veteran reported that she began experiencing wheezing and shortness of breath in 1991 and that she had used a 1,1,1 trichloroethane spray to clean her computer. Dr. J.S. noted that the Veteran complained of shortness of breath and that the Veteran did not report any past history of asthma or wheezing. Dr. J.S. commented on the results of the February 1999 indoor air quality investigation. Dr. J.S. indicated in his impression that "individuals with pre-existing reactive airways are more susceptible to these low levels of volatile organic chemicals." Dr. J.S. concluded that poor indoor air quality is the basic cause of the Veteran's respiratory and irritancy symptoms. In a November 1999 Department of the Air Force Memorandum the Veteran was noted to have been a member of the 161st Air Refueling Wing for the prior 6 years. In a December 1999 Department of the Air Force Memorandum the Veteran was noted to be a full time Air Technician in the Base Contracting Office of the 161st Air Refueling Wing during exposure to chronic solvent fumes. In a private examination letter addressed to the United States Department of Labor, dated in February 2000, Dr. B.S. indicated that the Veteran had a multitude of medical complaints and commented that Dr. J.S. "felt that it was likely that she had respiratory irritation from poor air quality in the building that she worked." Dr. B.S. did not provide a diagnosis of any pulmonary disorder. In a statement submitted by Dr. J.W., dated in March 2000, the Veteran was noted to be diagnosed with modest reactive airway disease in September 1999. In private treatment notes, dated since March 2001, the Veteran has been diagnosed with restrictive airway disease. In a letter, dated in August 2001, Dr. T.F. reported that the Veteran worked in the purchasing office at the 161st Air Refueling Wing of the Arizona Air National Guard in a building approximately 75 feet from the runway exposing the Veteran to jet engine exhaust associated with take-offs and landings. Dr. T.F. further noted that an indoor air quality investigation completed at the building in February 1999 discovered inadequate ventilation with carbon dioxide levels up to more than twice the recommended limit. In a statement submitted by Dr. J.W., dated in February 2002, the Veteran was noted to have a "chronic disability from environmental pathogens which have left her with chronic lung changes and a chronic cough." In March 2002, Dr. C.N.B. submitted a statement regarding the Veteran's claim. Based upon a review of the claims folder, Dr. C.N.B. rendered the opinion that the Veteran's pulmonary problems developed during the Veteran's service time and that they were caused by her service related toxic exposures. In May 2002 the Veteran was afforded a VA Compensation and Pension (C&P) examination regarding her claim. After examination the Veteran was diagnosed with mild reactive airway disease. The physician noted that "there is no evidence (despite the letter in file) to document or support environmental toxins as the cause of her respiratory problem and complaints." During an August 2005 Travel Board hearing, the Veteran testified that during active military service and periods of ACDUTRA and INACDUTRA she was exposed to JP-8 jet fuel exhaust. She also claims that during the aforementioned types of service that she was also exposure to trichlorethane. Based on the Veteran's service duties and records, the Board finds credible her claimed exposure to jet fuel exhaust and trichlorethane during active military service, and periods of ACDUTRA and INACDUTRA. The Veteran has submitted a study produced by Dr. D.H. regarding the risks of exposure to JP-8 jet fuel. In a letter dated in October 2005, Dr. M.M. stated that after reviewing further information regarding exposure to JP-8 jet fuel he felt that the Veteran's "respiratory complaints can be accounted for due to her exposure to the JP-8 jet fuel exhaust." The Veteran's treatment records reveal that the Veteran has been variously diagnosed with exercise induced asthma, asthma, and reactive airway disease. In October 2010 a VA medical specialist reviewed the claims file. The specialist stated that a March 1998 Air Force Memorandum documented that the Veteran was exposed to 1,1,1 trichloroethane and that the Veteran developed multiple complaints during and after completion of her reserve service. The examiner stated that although pulmonary function tests performed in June 1999 and May 2001 were normal, a full pulmonary function test performed in June 2002 revealed moderate airway obstruction with improvement after inhaled albuterol and lung volume measurements that suggested air trapping, all of which suggested that the Veteran suffered from asthma. The specialist rendered the opinion that he agreed with all of the physicians who evaluated the claimant and felt she had asthma and agreed with the majority of the physicians who related the Veteran's asthma with the Veteran's exposures during active duty. The specialist indicated that he disagreed with the opinion of the VA C&P examiner who felt the Veteran's asthma was not due to the Veteran's exposure to environmental toxins. The specialist provided the rationale that jet fuel and 1,1,1 trichloroethane have been proven to induce asthma and that the Veteran had documented exposures to these toxins and subsequent development of asthma. The specialist stated that although the Veteran's pulmonary function tests were normal in 1999, they were significantly abnormal in 2002. The specialist stated that although this represented a one and a half year period where there could have been another factor to induce asthma, it was more likely that the exposures during the last dates of the Veteran's active duty induced asthma. The Board finds that entitlement to service connection for asthma, obstructive lung defect, to include as due to chemical exposure in service, is warranted. The Veteran's service records reveal that the Veteran was exposed to jet exhaust and 1,1,1 trichloroethane. Drs. M.M. and C.N.B. related the Veteran's asthma to the Veteran's exposure to jet exhaust in service. A VA specialist, after review of the claims file, rendered the opinion in October 2010 that the Veteran's asthma was more likely induced by the Veteran's exposure to chemicals during her last dates of active duty service. As such, entitlement to service connection for asthma, obstructive lung defect, to include as due to chemical exposure in service, is granted. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER Entitlement to service connection for asthma, obstructive lung defect, to include as due to chemical exposure in service, is granted. REMAND The Veteran also seeks entitlement to a TDIU. As the Board is granting entitlement to service connection for asthma in the above decision, the Veteran's claim of entitlement to a TDIU may be affected by the initial disability evaluation assigned for her now service-connected asthma. Therefore, the Board finds these issues to be inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Because the issues are inextricably intertwined, the Board is unable to review the issue of entitlement to a TDIU until an initial disability evaluation is assigned for the Veteran's now service-connected asthma. Id. In addition, the evidence of record reveals that the Veteran is not currently employed and there is an indication that the Veteran may be unable to work due to her service-connected disabilities. As such, the Board has no discretion and must remand the claim of entitlement to TDIU for the Veteran to be afforded a VA medical examination taking into consideration all of the Veteran's service-connected disabilities. Accordingly, the case is REMANDED for the following action: 1. Arrange for the Veteran to undergo an appropriate VA examination regarding her claim of entitlement to a total disability rating based on individual unemployability due to the service-connected asthma, obstructive lung disease and the service-connected bilateral peripheral vestibular loss. The claims folder should be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted. Thereafter, the examiner should address the following: a) State all impairment due to the service connected bilateral peripheral vestibular loss and the service-connected asthma/obstructive lung disease. b) For each impairment found, state the severity. c) For each impairment found, state the occupational impact on the Veteran. In this regard, what functions would be difficult or impossible to do as a result of the associated symptom/impairment. A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 2. Thereafter, readjudicate the Veteran's claim. If the benefit sought on appeal is not granted, the RO should issue the Veteran and her representative a supplemental statement of the case and provide the Veteran an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs