Citation Nr: 1300345 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 07-10 101 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a respiratory disability. 2. Entitlement to service connection for a sinus disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from September 1989 to November 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which denied service connection for a respiratory/sinus condition. In October 2009, the appellant and his spouse testified at a Board hearing at the RO. In March 2012, the Board remanded the matter for additional evidentiary development. In a November 2012 letter, the Board advised the appellant that the Veterans Law Judge before whom he had testified in October 2009 had been designated by the Secretary of VA to serve as Acting Chairman of the Board, pursuant to 5 U.S.C. § 3345. Under 38 U.S.C.A. § 7102(b), proceedings before the Board may not be assigned to the Chairman as an individual member. The Board advised the appellant that he therefore had a right to participate in another Board hearing should he so desire. Later that month, however, the appellant responded that he did not wish to appear at an additional hearing and asked the Board to proceed with consideration of his appeal based on the evidence of record, including the transcript of the October 2009 Board hearing. During an April 2012 VA medical examination, the appellant indicated that he wished to submit a claim of service connection for bilateral hearing loss and tinnitus. It is not clear whether this has been done. Appellant is free to do so with application to the RO. The matter is not currently before the Board. Finally, the Board notes that the record on appeal reflects that additional evidence relevant to the appeal has been received which has not yet been considered by the RO, including an entire volume of private clinical records as well as an April 2012 addendum to a VA medical examination report. In light of the favorable decision below regarding the claim of service connection for a respiratory disability, the Board finds that this procedural deficiency has not prejudiced the appellant and a remand is not necessary with respect to that issue. See 38 C.F.R. § 20.1304 (2012) (providing that additional pertinent evidence must be referred to the RO for review and preparation of a Supplemental Statement of the Case, unless the benefit sought on appeal may be allowed without such referral). As set forth in more detail below, however, a remand is necessary with respect to the issue of entitlement to service connection for a sinus disability. This issue 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 evidence is in equipoise as to whether the appellant's currently diagnosed chronic respiratory disability, asthma, is causally related to his exposure to smoke from oil fires during his service in the Southwest Asia theater of operations during the Gulf War. CONCLUSION OF LAW Affording the appellant the benefit of the doubt, asthma was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate a claim. See 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating that claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c). In light of the favorable decision below, the Board finds that any deficiency in VA's VCAA notice or development actions is harmless error. Background The appellant's service treatment records show that at his January 1989 military enlistment medical examination, he denied having or ever having had asthma. His lungs and chest were normal on clinical evaluation. In-service treatment records show that in July and August 1990, the appellant was treated for a possible upper respiratory infection. His symptoms included a productive cough and a sore throat. The remaining service treatment records are entirely silent for any indication of respiratory complaints or abnormalities. At his August 1991 military discharge medical examination, the appellant described himself as being in good health. He denied having or ever having had asthma. On clinical evaluation, his lungs and chest were examined and determined to be normal. The appellant's personnel records reflect that he served in the Southwest Asia theater of operations from January 1991 to May 1991. He is the recipient of the Southwest Asia Service Medal with 2 bronze service stars, the Kuwait Liberation Medal, and the Army Commendation Medal for meritorious achievement in combat operations. In November 2002, the appellant submitted claims of service connection for multiple disabilities, including "Gulf War symptoms" such as respiratory problems. He contended that during his tour of duty in the Gulf War, he was exposed to smoke from oil fires and such exposure caused him to develop respiratory problems. Records received in support of the appellant's claim include VA and private clinical records dated from August 2001 to November 2011. In pertinent part, these records show that the appellant was treated during this period for multiple complaints, including a productive cough and shortness of breath. The appellant's history was notable for smoking. He was described as a pack per day smoker with a low motivation for quitting. Diagnoses included acute bronchitis and tobacco use disorder. During his October 2009 Board hearing, the appellant testified that during his tour of duty in the Persian Gulf, the Iraqi soldiers were burning the oil fields of Kuwait. He recalled the sky being black and filled with smoke. The appellant testified that he did not have any respiratory problems during active duty but that after his separation from service, he began to develop sinus and respiratory problems, including bronchitis. In March 2012, the Board remanded the matter for the purpose of obtaining a VA examination to determine the nature and etiology of any currently diagnosed respiratory disability, to include whether the appellant exhibited respiratory symptoms due to an undiagnosed illness. The Board also directed the RO to assist the appellant in obtaining private clinical records in support of his claim. In April 2012, the appellant underwent a VA Gulf War general medical examination and a VA respiratory examination at which he reported that during his tour of duty in the Persian Gulf, he had been exposed to oil fires, burn pits, and smoke. He described the environment there as being black from smoke day and night. The appellant indicated that after his separation from service, he developed bronchitis multiple times. The examiner noted that the record currently available documented that the appellant had been treated for bronchitis three times between November 2002 and August 2004. The appellant reported that he was in the process of obtaining additional private clinical records and would submit them shortly. After examining the appellant and reviewing the available record, the examiner diagnosed the appellant as having acute bronchitis, recurrent. The examiner concluded that it was less likely than not that such condition had been incurred in or was otherwise causally related to the appellant's service, including his exposure to smoke from oil fires. The examiner explained that number of times the appellant had developed acute bronchitis since service was no greater than of the general population, particularly given that he was a smoker. The appellant thereafter submitted additional private clinical records showing that he had been diagnosed as having asthma. In an April 2012 addendum to the VA respiratory examination report, a VA physician indicated that she had reviewed the additional records provided by the appellant and noted that he had been diagnosed as having asthma in addition to recurrent acute bronchitis. She again concluded that the appellant's recurrent acute bronchitis was less likely than not incurred in or causally related to the appellant's active service or any incident therein, including exposure to oil fires. The examiner explained that the episodes of acute bronchitis for which the appellant had been treated since 2002 were typical of the incidence of bronchitis in the general population, particularly given that the appellant was a smoker. The examiner explained, however, that the condition predominately responsible for the appellant's respiratory symptoms was asthma. She indicated that the medical literature was conflicting as to whether exposure to oil fires in the Persian Gulf was associated with the development of asthma. She therefore concluded that it was at least as likely as not, or a 50 percent or greater probability, that the appellant's current asthma was incurred in service, including as a result of his exposure to oil fires. Applicable Law Service connection may be established for disability resulting from injury suffered or disease contracted in line of duty; or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection for chronic, undiagnosed illness (or a medically unexplained chronic multisymptom illness such as fibromyalgia, chronic fatigue syndrome, or irritable bowel syndrome) arising from service in Southwest Asia during the Gulf War may be established under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. Under those provisions, service connection may be established for objective indications of a chronic disability resulting from an undiagnosed illness or illnesses, provided that such disability (1) became manifest in service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016; and (2) by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. 38 U.S.C.A. § 1117, 38 C.F.R. § 3.317. Signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The appellant seeks service connection for a respiratory disability. After carefully reviewing the record on appeal, the Board concludes that the evidence is in equipoise with respect to the claim. As a preliminary matter, the Board notes that the appellant has reported that he was exposed to smoke from oil fires during his tour of duty in the Southwest Asia theater of operations. He has further reported that after his separation from active service, he developed respiratory symptoms such as coughing and shortness of breath. The Board finds that the appellant is competent to describe his in-service exposure to environmental hazards as well as his post-service respiratory symptoms. The Board has no reason to question his credibility in either regard. In order to establish service connection for an undiagnosed illness manifested by respiratory symptoms resulting from service in the Southwest Asia theater of operations, however, the law requires that the symptoms in question not be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). In this case, the record reflects that the appellant's chronic respiratory symptoms have been attributed to asthma. He has also been treated for several episodes of acute bronchitis. Under these circumstances, service connection pursuant to section 3.317 is not warranted. Because the appellant's respiratory complaints have been attributable to a known clinical diagnosis, the Board has also considered whether service connection may be established for the diagnosed disorder. As noted, in order to establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). As set forth above, VA examiners have concluded that the appellant's episodes of acute bronchitis are not causally related to his active service and there is no other probative evidence suggesting otherwise. The record shows that the appellant has also been diagnosed as having asthma in addition to recurrent acute bronchitis. Indeed, the record shows that his asthma is the condition predominately responsible for his respiratory symptoms. The record further reflects that the medical literature is conflicting as to whether exposure to oil fires in the Persian Gulf is associated with the development of asthma. Given this fact, in April 2012, a VA medical examiner concluded that it was therefore at least as likely as not that the appellant's current asthma was incurred in service, including as a result of his exposure to oil fires. The Board further notes that there is no other probative evidence suggesting an alternative etiology for the appellant's current asthma. Given the record on appeal, the Board finds that the evidence is in relative equipoise as to whether the appellant's asthma is causally related to his active service. Although the examiner was unable to state with certainty that the appellant's asthma was related to his exposure to oil fires during the Gulf War, certainty is not required in claims for VA benefits. Rather, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert, 1 Vet. App. at 54. Given the evidence set forth above, such a conclusion certainly cannot be made in this case. Under these circumstances, the record is sufficient to award service connection for asthma. ORDER Entitlement to service connection for asthma is granted. REMAND The appellant also seeks service connection for a sinus disability which he contends is causally related to his exposure to smoke from oil fires in Kuwait. In March 2012, the Board remanded the matter for additional evidentiary development, including assisting the appellant in obtaining private clinical records, as well as obtaining a VA medical opinion in connection with his claims of service connection for a respiratory disability and a sinus disability. Pursuant to the Board's remand instructions, in April 2012, the RO sent the appellant a letter asking him to complete authorization forms allowing VA to obtain private clinical records in support of his claims. The appellant did not return the authorization forms. Also in April 2012, the appellant underwent VA sinus and respiratory examinations. At the VA sinus examination, he reported a history of chronic sinusitis and allergic rhinitis. He indicated that he was under the treatment of private physicians and was in the process of obtaining additional records from those providers. The examiner concluded that given the evidence currently of record, it seemed less likely rather than more likely that the appellant's current problem with occasional sinusitis was the result of exposures that occurred while he was in service. Thereafter, the appellant submitted a large quantity of private medical records containing notations of acute ethmoidal sinusitis, acute pansinusitis, and allergic rhinitis. He explained that he had elected to submit the records himself rather than return the authorization forms to ensure they all records were obtained. These additional records were apparently provided to the VA respiratory examiner who provided an addendum to his April 2012 examination report. An addendum, however, was not obtained from the VA sinus examiner. Additionally, a review of the May 2012 Supplemental Statement of the Case indicates that the RO failed to consider the additional evidence submitted by the appellant as well as April 2012 addendum obtained from respiratory examiner. Under these circumstances, a remand is necessary to ensure that the appellant is not prejudiced by procedural and evidentiary development deficiencies. Accordingly, the case is REMANDED for the following action: 1. The RO should return the claims folder, with the additional records, to the VA examiner who conducted the April 2012 sinus examination, if available or a similarly situated examiner. If necessary, the appellant should be scheduled for a VA medical examination to determine the nature and etiology of his claimed sinus disability. In either case, the examiner should be asked to review the claims folder and provide an opinion, with supporting rationale, as to whether it is at least as likely as not that any current sinus disability identified on examination is causally related to the appellant's active service or any incident therein, including his exposure to smoke from oil fires during his tour of duty in the Southwest Asia theater of operations. 2. Following completion of the actions delineated above, and after conducting any additional evidentiary development necessary, the RO/AMC should readjudicate the remaining claim on appeal, considering all the evidence of record. If the benefit sought by the appellant remains denied, he and any representative must be provided a Supplemental Statement of the Case (SSOC) and an opportunity to respond. The case should then be returned to the Board, if in order. 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. 2012). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs