Citation Nr: 1330105 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 08-08 736 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to service connection for an upper respiratory disorder, inclusive of a sinus disorder, nasal polyps, and nosebleeds. 2. Entitlement to service connection for a lower respiratory disorder, inclusive of asthma and bronchitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty for training from May 1984 to August 1984 and on active duty, to include service in the Southwest Asia Theatre of Operations, from May 1985 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in July 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota, denying the Veteran's claims for service connection for upper and lower respiratory disorders. This matter was previously before the Board in February 2012, when it was remanded to permit the Veteran to provide testimony at a hearing before the Board, sitting at the RO, in June 2013. A transcript of that hearing is of record. At such hearing, additional documentary evidence was submitted along with a written waiver for its initial consideration by the RO. Notice is taken that the Board by its February 2012 remand styled the issues before the Board as those involving claims to reopen for each disability at issue. Further review of the record indicates otherwise, notably that while service connection for upper and lower respiratory disorders was denied by the RO in rating action undertaken in July 2005, the Veteran in January 2006 requested the RO to reconsider its July 2005 decision, based on a lay statement from his mother and his request for VA to obtain and/or review certain medical records. The RO then did just that by way of its rating decision of March 2006, without adjudicating any question of finality or as to the newness and materiality of the evidence permitting reopening of a final determination. Notwithstanding language utilized by the Veteran and his representative in the January 2006 reconsideration request arguably indicating an intent to reopen, the Board finds that the appellate issues herein presented are those based on original claims for service connection received by VA in February 2005. The issues of the Veteran's entitlement to service connection for bronchitis and for an upper respiratory disorder are addressed in the REMAND portion of this decision below and are REMANDED to the RO via the VA's Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran's asthma originated in or is otherwise the result of military service and environmental exposures to burning oil, smoke, sand, or dust. CONCLUSION OF LAW Asthma was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As the disposition of this matter is wholly favorable to the Veteran in terms of the issue addressed herein on its merits, the need to discuss the VA's compliance with its duties to notify and assist is obviated. Applicable law provides that service connection will be granted when a veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service treatment records are negative for documented complaints, findings, or diagnoses of asthma, although the Veteran credibly indicates that he utilized an over-the-counter inhaler to assist his breathing at about the time of his service discharge or shortly thereafter and was diagnosed with asthma during 1993 through the Indian Health Service (IHS). He further credibly reports having environmental exposures when serving in Southwest Asia involving fine dust and sand from vehicle movements, as well as smoke and oil from open burn pits. Of record is a report of a VA examination in January 1993 which in, pertinent part, indicated that the Veteran had no residuals of smoke exposure. IHS records identify a diagnosis of asthma in or about 1995 based on complaints of shortness of breath, with some lung involvement involving coughing and bilateral rhonchi as early as January 1994. A VA Persian Gulf examination in June 1997 yielded a diagnosis of asthma and VA outpatient treatment reports through June 2005 identify the presence of asthma. VA examination in April 2008 indicated findings which were consistent with moderate and persistent asthma. Pulmonary function testing showed moderate reversible airways obstruction and air trapping. As to the onset of the Veteran's asthma, the VA examiner concluded that the Veteran's asthma began about three years after service, noting that a treatment note of June 1996 referenced a one-year prior history of asthma. The VA examiner found that the Veteran's asthma was not due to an undiagnosed illness or any inservice environmental exposure. The Veteran provided sworn testimony at a Board hearing conducted in June 2013, indicating that attending medical professionals, including those from VA, had previously instructed him that his asthma was related to his military service. In support of that testimony the Veteran submitted a VA treatment record compiled in April 2013 from a treating VA physician, a board-certified pulmonologist, in which it was set forth that the Veteran had asthma. Also, that physician offered his medical opinion that, given the lack of any symptoms prior to service and the lack of any family history of respiratory disease, the Veteran's asthma was probably related to his service abroad. Medical data were noted to confirm an increased incidence of reactive airways disease beyond what would be expected among expected Veterans having served in the Middle East. There is, as noted, evidence both in support of and contraindicating entitlement to the benefit sought. The Veteran indicates and the IHS records verify that lung difficulties were present at service discharge in 1992 or shortly thereafter, although the VA examiner in 2008 determined that the Veteran's asthma was not present until three years after service discharge and was unrelated to undiagnosed illness or environmental hazards. Equally persuasive evidence is provided by the Veteran's attending pulmonologist that his asthma was likely service related. Given that the evidence is qualitatively and quantitatively equal, a grant of service connection for asthma is warranted. To that extent, alone, the appeal is granted. ORDER Service connection for asthma is granted. REMAND The Board declines to address any of the remaining issues so that additional treatment records, referenced in the VA treatment note of April 12, 2013, but not now in file, may be obtained. In addition, the Veteran indicated at his June 2013 that he was at that time scheduled to see his VA pulmonologist again in August 2013, but that record too is not now on file. Following the AMC's efforts to associate all outstanding VA treatment records and to obtain any additional IHS record available, further VA examination is found to be necessary to ascertain whether other current disability of the upper and lower respiratory system is present and, if so, whether any such disability bears a nexus to the Veteran's military service. Accordingly, this portion of the appeal is REMANDED for the following actions: 1. Obtain all pertinent records of VA medical treatment, not already on file, for inclusion in the Veteran's VA claims folder. This should include those records compiled since June 20, 2005. 2. Obtain any and all pertinent IHS records not already on file for inclusion in the Veteran's VA claims folder. 3. Thereafter, afford the Veteran a VA examination for the purpose of determining the nature and etiology of his claimed bronchitis, if present, as well as his claimed upper respiratory disorders involving sinus pathology, nasal polyps, and nosebleeds, if present. His VA claims file should be made available to the examiner in conjunction with the examination. That examination should entail a complete medical history, a thorough clinical evaluation, and any diagnostic testing deemed necessary by the examiner. All pertinent diagnoses should then be set forth. The VA examiner is asked to address the following questions, offering a complete rationale for each opinion provided, with citation to pertinent items of evidence in the record: Is it at least as likely as not (50 percent or greater probability) that any existing bronchitis and/or upper respiratory disorder, including but not limited to sinus pathology, nasal polyps, and nosebleeds, had its onset in service or is otherwise attributable to service or any event therein, to include as an undiagnosed illness originating in or the result of service in the Southwest Asia Theatre of Operations? Use by the VA examiner of the at least as likely as not language in responding is required. The examiner is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of a nexus or service incurrence as to find against such matters. More likely and as likely support the contended relationship; less likely weighs against the claim. 4. Lastly, readjudicate the remaining issues on appeal based on all the evidence of record and all governing legal authority. If any benefit sought on appeal continues to be denied, provide the Veteran with a supplemental statement of the case outlining all pertinent evidence and legal authority, in addition to reasons and bases for the adverse action taken, and afford him a reasonable period in which to respond. The case should then be returned to the Board for further review. 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 MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs