Citation Nr: 1331719 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 12-19 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for asthma to include chronic cough and shortness of breath. ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from May 2005 to June 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the October 2011 decision by the Houston, Texas Regional Office (RO) of the United States Department of Veteran Affairs (VA), which denied service connection for asthma. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure complete review of the evidence of record. FINDING OF FACT Clear and unmistakable evidence demonstrates the Veteran's asthma preexisted active duty service; however, the evidence does not clearly and unmistakably show that the Veteran's pre-existing disability of asthma was not aggravated by military service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for asthma to include chronic cough and shortness of breath have been met. 38 U.S.C.A. §§ 1110, 1111, 1153, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist The VCAA describes VA's duties to notify and assist veterans 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) (2013). In light of the favorable decision herein as to the elbow issue on appeal, the Board finds that any deficiencies in notice were not prejudicial to the Veteran. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection on a direct basis, the record must contain: (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). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Presumption of Soundness and Aggravation Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). In order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258 (1999) (citing definition of "clear and unmistakable error" in Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)). The clear and unmistakable evidence standard is an "onerous" one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)). The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGPREC 3-2003; Jordan v. Principi, 17 Vet. App. 261 (2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). However, where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2013). For Veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran is seeking entitlement to service connection for asthma to include chronic cough and shortness of breath. The Veteran asserts his childhood asthma resolved and he suffered no issues of chronic coughing, asthma, lung capacity or shortness of breath until after two deployments to Camp Taji, Baghdad, Iraq where he was exposed to burning oil, gas, garbage and industrial pollution. He additionally contends aggravation as he submitted additional copies of in-service treatment records with a note highlighting his past history of asthma, which he stated might have "resurfaced" after being exposed to burning materials at Camp Taji, Iraq. It is undisputed the Veteran currently suffers from asthma. Specifically, the July 2010 VA examination diagnosed the Veteran with asthma based on a subjective factor of a history of asthma and objectively that the Veteran was on current medication. In January 2002, the Veteran received a medical waiver for an on campus scholarship program for history of reactive airway disease including asthma, asthmatic bronchitis or exercised induced asthma noting "childhood asthma resolved by age 10." An examination was scheduled in July 2003 in regard to retention in the ROTC program. At that time, it was noted that the Veteran was medically qualified for service with no exam required. There is no specific enlistment examination of record regarding his regular active service. As such, the Veteran will be presumed to have entered service in sound condition with respect to asthma. 38 U.S.C.A. §§ 1111 (West 2002); see also Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). As noted, however, the presumption can be rebutted by clear and unmistakable evidence. First, the Board must address whether the evidence of record clearly establishes the Veteran's asthma pre-existed his military service. The Veteran was afforded a VA examination in August 2011 and the examiner provided an opinion as to whether the Veteran's condition existed prior to service. The 2011 VA examiner noted the Veteran was disqualified from serving in the U.S. Coast Guard Academy and the U.S. Merchant Marine Academy due to his history of reactive airway disease. The VA examiner further discussed the Veteran's history of childhood asthma which he indicated resolved by age 9. However, the examiner pointed out private provider notes dated December 1995 (age 14) where the Veteran presented with upper respiratory complaints, was noted to have decreased air movements, prolonged expiratory phase and was diagnosed as having Reactive Airway Disease (RAD). The physician noted in March 1998 (age 16) the Veteran was seen with upper respiratory complaints to include wheezing and was found to have expiratory rochi, wheezing and was again diagnosed with RAD. The physician stated prolonged expiration and repeated complaints or observations of wheezing are not typically associated with upper respiratory infections or bronchitis in persons with no underlying lung disorder. The VA examiner stated that although the physician who had diagnosed the Veteran with RAD later wrote a letter on behalf of the Veteran indicating the asthma had resolved, it was apparently to assist the Veteran to enter the military and the documented observations noted "clearly indicate the Veteran's asthma had not resolved in early childhood" as indicated. He later opined the Veteran's asthma was at least as likely as not active or existed prior to service based on documentation from private provider progress notes. The VA examiner carefully reviewed the Veteran's claims file and service medical records, conducted a thorough examination and provided a detailed rational linking evidence to his conclusions. Given the pre-service medical records documenting childhood asthma, and the VA examiner's conclusions, the Board finds that the medical evidence of record clearly and unmistakably demonstrates that the Veteran's asthma pre-existed his active duty service. Although the records prior to and contemporaneous to entry indicated that the asthma had essentially resolved, the VA examiner thoroughly discussed the Veteran's medical history and explained how the evidence demonstrated that such disorder had not actually resolved. While the examiner may have expressed his conclusion in terms of being as likely as not, the Board finds that the overall evidence, including pre-service medical evidence as well as the conclusion of the 2011 VA examiner, establishes clearly and unmistakably that asthma pre-existed his entry into service. Having found that asthma preexisted service, the Board must also address the matter of whether the presumption of aggravation has been rebutted by clear and unmistakable evidence. In essence, the Board must determine if there is clear and unmistakable evidence that the disorder was not aggravated during service. See VAOPGCPREC 3-2003. As noted, the Veteran separated from service in June 2010. Post deployment health assessments were filled out by the Veteran in December 2007, January 2008, December 2009, March 2010 and January 2010 where he indicated symptoms and exposures. The Veteran reported chronic cough in 2007 and 2008. In December 2009 and March 2010 symptoms of a cough lasting more than 3 weeks and trouble breathing were reported by the Veteran. In January 2010 shortness of breath and chronic cough or cough at night were indicated by the Veteran. The reports included indication of exposures to smoke from burning trash or feces, JP8 or other fuels, solvents, oil fire, industrial pollution, sand/dust and vehicle or truck exhaust fumes. In an appellant statement from June 2010 the Veteran explained that he had no issues associated with shortness of breath, lung capacity or coughing prior to October 2006. The Veteran described duties during his tour which exposed him to burning oil, gas, trash, and industrial pollution. He refers to his post deployment health assessments as evidence, as discussed above. He asserts he developed a chronic cough in Iraq in late October 2006, which lasted around five months while being around burning garbage and industrial pollution. The Veteran's duties in Iraq included the removal of vegetation along main roads in an attempt to eliminate extreme Improvised Explosive Device (IED) threats. This required him to work with the Iraqi army who sprayed oil and gas on tall weeds then set on fire. His role was to ensure the fire did not get out of control through supervision and would often be engulfed in smoke when winds shifted. He explained he was able to significantly reduce his shortness of breath and coughing through a variety of cough medicines and inhalers from the platoon medic. He clarified that since his first five months in Iraq he has had an "itch" in his lungs that became irritated when exercising, laughing or sick which would turn into severe coughing. In a July 2010 VA examination the Veteran was diagnosed with asthma, as discussed above. The Veteran reported his subjective history of asthma diagnosis and reported chronic coughing during service due to possible exposure to burning "stuff" and which onset in December 2006. Although no specific opinion was rendered as to the matter of aggravation, the issue was discussed in detail by the August 2011 VA examiner. In his report, the August 2011 VA examiner explained that there is no specific "natural progression" for asthma. The condition may be nearly asymptomatic in some persons, severely symptomatic in some persons, or have episodic periods of increasing/decreasing symptoms. Persons with asthma have symptoms in response to environmental exposures/stimuli though there is no evidence of continued/prolonged symptoms once those stimuli are removed. The VA examiner provided Harrison's principles of Internal Medicine definition of asthma as a chronic inflammatory disease of airways that characterized by increased responsiveness of the tracheobronchial tree to a multiplicity of stimuli." Typical symptoms of asthma include dyspnea, cough and wheezing. The 2011 VA examiner explained current research has not associated any substantial or consistent long term health effects for persons exposed to the burn pit or other environmental exposures in the Gulf War areas. Significantly, however, this data is for a population which typically would not have asthma. If one exposed a large number of persons with asthma to the environmental conditions to which this Veteran was exposed, the VA examiner acknowledged that results may differ from those noted above. He added it was possible that the Veteran would have developed the chronic cough he currently complained of even if he never joined the service or deployed to Iraq. The VA examiner opined that, as there is no natural progression for asthma and no studies/data specifically examining the affects of the environmental exposures to the Gulf War for persons with asthma, one cannot state as to whether this pre-existing condition was worsened by the Veteran's service in Iraq without resort to mere speculation and conjecture. Additional evidence regarding aggravation includes positive lay statements, including one from a friend and coworker of ten years who lived with the Veteran on multiple occasions. The coworker, a military logistics officer, reported working with the Veteran on a regular basis in October 2009 in Camp Taji, Baghdad, Iraq. He reported the Veteran coughed often, complained it was not getting better and it continued for the next few months. He reported after the Veteran deployed back to Ft. Hood, Texas, in January 2010 he lived with him for two months until April 2010. During this time he noticed the Veteran had the same "bad cough" he had in Iraq which had not seemed to improve. He described the Veteran's loud cough continued, often at night and the Veteran complained of shortness of breath. He stated the Veteran worked out with weights but very rarely went running because he claimed it caused him to cough. The individual reported that when the Veteran left he still had what he called a "nagging cough" and complained he could not seem to get a "deep breath." He reported that in ten years of knowing the Veteran he never noticed any kind of breathing problems or chronic cough until after his last deployment to Iraq and he believed the Veteran was exposed to something in Iraq that still causes his breathing problems. In a June 2010 statement from another friend and coworker, the individual explained that he knew the Veteran since June 2008 from working together in Ft. Hood, Texas. He reported the Veteran moved to Camp Taji, Iraq in October 2009, he arrived around one month later and observed "some type of chronic cough" that he did not have previously while in Texas. He described sitting in a briefing room with the Veteran who would cough the entire time and would often take breaks to get water. The Veteran would struggle to brief his commander because every few words were followed up with a cough. Upon return to Texas he continued to work closely with the Veteran until he began his terminal leave and he observed the same chronic cough that affected him while in Iraq that seemed to never get better. After the Veteran returned home from Iraq, he continued to complain of having shortness of breath and still had to pause in conversation frequently to cough. He believes the Veteran was exposed to something in Iraq that caused his symptoms. In summary, the 2011 VA examiner explained current research has not associated any substantial or consistent long term health effects for persons exposed to the burn pit or other environmental exposures in the Gulf War areas. However, the VA examiner acknowledged that this date pertained to a population which typically would not have asthma, and that results could conceivably differ for a population with preexisting asthma such as the Veteran had. When considering this opinion in light of the history and testimony provided by the Veteran, as well as the lay statements of others submitted in support of the appeal, the Board concludes that the evidence does not clearly and unmistakably established that the claimed asthma was not aggravated by service. Thus, the presumption of aggravation has not been rebutted. As the credible and probative evidence of record clearly and unmistakably establishes that the Veteran's asthma pre-existed service but does not establish clearly and unmistakably that the condition was not aggravated by service, the Board finds the service connection for asthma is established and the claim must be granted. ORDER Entitlement to service connection for asthma to include chronic cough and shortness of breath is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs