Citation Nr: 1318865 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 10-11 666 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to service connection for asthma. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1968. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision that, in pertinent part, denied service connection for asthma. The Veteran timely appealed. In November 2011, the Veteran testified during a video conference hearing before the undersigned. In February 2012 and in January 2013, the Board remanded the matter for additional development. 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). Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file. FINDING OF FACT Asthma was not present during active service, and is not otherwise related to the Veteran's period of active service, including his presumed exposure to Agent Orange herbicides therein, or to a service-connected disability. CONCLUSION OF LAW Asthma was not incurred in or aggravated by service, may not be presumed to have been so incurred, and is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1131, 1112, 1113, 1116, 1131, 1153, 1154, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.311 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). Through an April 2007 letter, the RO notified the Veteran of elements of service connection and the evidence needed to establish each element. This document served to provide notice of the information and evidence needed to substantiate the claim. VA's letter notified the Veteran of what evidence he was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed him that it would make reasonable efforts to help him get evidence necessary to support his claim, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them. In the April 2007 letter, the RO specifically notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Defects as to the timeliness of the statutory and regulatory notice are rendered moot because the Veteran's claim on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO or VA's Appeals Management Center (AMC) has obtained copies of the service treatment records and outpatient treatment records, and has arranged for VA examinations in connection with the claims on appeal, reports of which are of record and appear adequate. The opinion expressed therein is predicated on a substantial review of the record and consideration of the Veteran's complaints and symptoms. The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2). II. Analysis Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C.A. §§ 1110, 1131. Service connection requires 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). With respect to the showing of chronic disease, there must be a combination of sufficient manifestations to identify the disease entity and sufficient observation at the time, as distinguished from isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303 (2012). The Veteran contends that his asthma had its onset in active service, or is secondary to service-connected disabilities, including PTSD specifically. Any disability which is proximately due to, or results from, another disease or injury for which service connection has been granted, shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2012). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service-connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b) (2012); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. A disease listed at 38 C.F.R. § 3.309(e) will be considered to have been incurred in or aggravated by service under the circumstances outlined in this section, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307(a). The term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 U.S.C.A. § 1116(a)(4) (West 2002); 38 C.F.R. § 3.307(a)(6)(i). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no evidence of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). Service treatment records do not reflect any findings or complaints of asthma or breathing problems. On a "Report of Medical History" completed by the Veteran at the time of his separation examination in April 1968, he checked "no" in response to whether he ever had or now had asthma. Private treatment records show that the Veteran quit smoking in 1985, and that he used to smoke one pack per day for about twenty years. Records indicate the onset of asthma in 1987, and show an impression of active asthma in June 1998. More recent records show ongoing treatment for asthma in 2008. In a July 2008 statement, a former service member recalled that the Veteran developed a severe cough during field training for Vietnam; and that the Veteran was taken back to the company headquarters because of his cough. The report of a December 2009 VA examination reflects that the Veteran was concerned about losing his breath because of chronic obstructive pulmonary disease and asthma, and that he could not mow his lawn anymore. He also could not shovel snow from his driveway because of his breathing, and he became shortness of breath when the tried cleaning the house. Pulmonary function testing in March 2011 was consistent with some degree of emphysema. In November 2011, the Veteran testified that he was taken off of patrol duty at night in Vietnam because of his cough. He testified that he was exposed to Agent Orange and other chemicals in Vietnam, and had ingested a lot of smoke from the fuel tank fires on base. The Veteran also testified that he was within a quarter mile from an area hit with napalm. He is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). In March 2012, the Veteran reported that exposure to smoke and fumes from the burning of JP4 fuel in big tanks during enemy attacks in Vietnam also caused him to cough and choke. One of the Veteran's treating physicians, in March 2012, noted an increased risk of respiratory disorders with Agent Orange exposure; and noted the Veteran's long history of smoking. In February 2012, the Board issued a Remand requesting a medical opinion describing whether it is at least as likely as not that the Veteran has an asthma disorder incurred in service or due to or aggravated by active service or any other service-connected disorder, to include PTSD. In response to the Board's remand, a VA respiratory examination was conducted in May 2012. In the report of the May 2012 VA examination, the examiner noted that the Veteran's predominant respiratory disability was chronic obstructive pulmonary disease; and that its likely etiology was cigarette smoking. The examiner also noted that asthma is not caused by cigarette smoking, but that asthma could be aggravated temporarily by smoking. The examiner noted that the Veteran had quit smoking, and that the Veteran's asthma now flared due to environmental exposures such as grass, pollens, etc. which was noted to be a common occurrence. The examiner opined that the Veteran's breathing problems "are not secondary to any service-connected disabilities but are connected to his non-service disability of cigarette smoking history and seasonal allergies promoting asthma." The examiner also noted that service treatment records are silent as to any respiratory problems and that the Veteran's respiratory problems didn't arise until 2007. Following the Board's January 2013 remand, the May 2012 examiner provided an addendum opinion in March 2013, stating that it was not likely that the Veteran's current asthma is a result of exposures to smoke, fumes, chemicals, or Agent Orange while serving in Vietnam; or related to any other episodes in active service. In support of the opinion, the examiner referenced the Veteran's medical charts which document elements of asthma, such as wheezing and decreased DLCO, as more likely secondary to a combination of chronic obstructive pulmonary disease and obesity. Likewise, any element of obstructive sleep apnea is not secondary to any intrinsic lung abnormalities, and, rather, is an anatomical abnormality of the posterior pharynx. Initially, given the Veteran's presumed exposure to Agent Orange herbicides in the Republic of Vietnam, consideration must be given as to whether service connection may be granted on a presumptive basis. Asthma, however, is not one of the listed disabilities presumed to be caused by exposure to Agent Orange herbicides. Notwithstanding the preclusion of the establishment of service connection on a presumptive basis, the Veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To the extent the Veteran contends he has current asthma, his statements are competent and credible. However, he is not shown to have the medical expertise to diagnose or determine the etiology of any respiratory disease. Again, this is not something that would be readily apparent to a lay person. Physicians must rely on examination, medical history, and special diagnostic testing to render a diagnosis and determine etiology. In this case, the Board finds credible, competent and probative the Veteran's reports of coughing during active service. However, the March 2013 addendum opinion indicates that the Veteran's chronic obstructive pulmonary disease with elements of asthma are more likely than not related to his long-standing tobacco abuse; and not a result of other exposures to smoke, fumes, chemicals, or Agent Orange. This is highly probative evidence against finding a nexus between any present asthma and active service. With regard to secondary service connection, including by way of aggravation, the Board first notes that service connection is not in effect for chronic obstructive pulmonary disease. [Parenthetically, service connection is prohibited for disability or death resulting from disease or injury attributable to the use of tobacco products during the Veteran's active service. See 38 U.S.C.A. § 1103(a) (West 2002).] Service connection is in effect, however, for post-traumatic stress disorder (PTSD), diabetes mellitus, type II, and for several disabilities found to have been secondarily associated with service-connected diabetes mellitus type II, including congestive heart failure, retinopathy and glaucoma, bilateral lower extremity peripheral neuropathy, hypertension, and erectile dysfunction. The Veteran has specifically argued that his asthma is aggravated by his service-connected disabilities, to include PTSD. Based on that assertion, the Board's February 2012 Remand requested a medical opinion describing whether it is at least as likely as not that the Veteran has an asthma disorder incurred in service or due to or aggravated by active service or any other service-connected disorder, to include PTSD. The May 2012 VA respiratory examination was conducted in direct response to the questions posed by the Board in it's February 2012 Remand. The examiner reviewed the claims file, including the question posed in the remand. Addressing the question of secondary service connection, to include aggravation, presented therein, the May 2012, VA examiner noted that the Veteran had quit smoking, and that the Veteran's asthma now flared due to environmental exposures, which is common. The examiner opined that the Veteran's breathing problems "are not secondary to any service-connected disabilities but are connected to his non-service disability of cigarette smoking history and seasonal allergies promoting asthma. (emphasis added)" Significantly, none of the Veteran's service-connected disabilities, including PTSD, were mentioned as either causative or aggravating factors. In support of the opinion, in the March 2013 addendum, the examiner referenced the Veteran's medical charts which document elements of asthma, such as wheezing and decreased DLCO, as more likely secondary to a combination of chronic obstructive pulmonary disease and obesity. Accordingly, secondary service connection for asthma, including by way of aggravation, is not warranted. The Board finds the May 2012 examiner's opinion and March 2013 addendum to be probative for resolving the matter on appeal. As noted above, the examiner has the medical knowledge to express a competent opinion; and found no evidence of respiratory disease in active service, or any relationship between asthma and a service-connected disability. The opinions appears accurate, and are fully articulated and contain sound reasoning. In this case, the competent evidence is against finding that the Veteran's current asthma is linked to service or to any service-connected disability. A preponderance of the evidence is therefore against a finding that the Veteran's asthma either had its onset during service or is related to coughing or to exposures in active service, or is secondarily related to a service-connected disability. The reasonable doubt doctrine is not for application. Thus, service connection for asthma is not warranted. See 38 U.S.C.A. § 5107(b) (West 2002). ORDER Service connection for asthma is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs