Citation Nr: 1607096 Decision Date: 02/24/16 Archive Date: 03/01/16 DOCKET NO. 10-45 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a stomach disorder. 2. Entitlement to service connection for a respiratory disorder. REPRESENTATION Appellant represented by: Robert V. Chisholm Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. M. Georgiev, Associate Counsel INTRODUCTION The Veteran served in the United States Air Force Reserve and West Virginia Army National Guard (ARNG). DD Forms 214 were issued for two periods of active duty for training (ACDUTRA) from February to June 2003 and from September 2005 to December 2006. The Veteran also served on other periods of inactive duty for training (INACDUTRA) over the years. The Veteran was deployed to Iraq and Kuwait from November 2005 to November 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran testified at a Board hearing before the undersigned Acting Veterans Law Judge (VLJ) in March 2014. A transcript of that hearing is associated with the claims file. In August 2014, the Board entered a decision denying the claim for service connection for a stomach disorder, remanding the claim for a respiratory condition, and referring the issue of entitlement to service connection for a back disorder. In September 2015, the Court of Appeals for Veterans' Claims (Court) entered an order granting a joint motion for partial remand, vacating and remanding the portion of the August 2014 Board decision denying service connection for a stomach disorder. As such, both the claims for service connection for a respiratory condition and a stomach condition are again before the Board. As noted by the August 2014 Board decision, the issue of entitlement to service connection for a back disorder has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is again referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The issue of service connection for a stomach disorder is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT Resolving doubt in favor of the Veteran, he has a respiratory disability that is etiologically related to a disease, injury, or event which occurred in service, or resulted from disease or injury incurred, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. CONCLUSION OF LAW Service connection for a respiratory disability is warranted. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2015); 38 U.S.C.A. §§ 101(24), 106, 1131 (West 2015). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim for service connection for a respiratory disability, VA has met all statutory and regulatory notice and duty to assist provisions. As the Board is granting this issue, further discussion of the VCAA is unnecessary. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Legal Criteria Pertinent VA law and regulations provide that 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, 1131 (West 2014); 38 C.F.R. § 3.303 (2014). Generally, this requires (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); 38 C.F.R. § 3.303(d). Alternatively, service connection may be established either by showing that a chronic disability or disease was incurred during service and later manifestations of such chronic disability or disease are not due to intercurrent cause(s) or that a disorder or disease was incurred during service and there is evidence of continuity of symptomatology which supports a finding of chronicity since service. 38 C.F.R. § 3.303(b). Service connection may be granted for a disability resulting from disease or injury incurred, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1131 (West 2014). INACDUTRA includes duty other than full time duty performed by a member of the Reserves or the National Guard of any state. 38 C.F.R. § 3.6(d) (2014). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2014). Facts and Analysis Giving the Veteran the benefit of the doubt, the Board finds service connection for a respiratory condition is warranted. The Veteran provided several statements and testimony during his Board hearing regarding the onset of his respiratory symptoms. He has stated that he was never diagnosed with asthma prior to his service in Iraq. He testified to breathing fumes, fuel, and the smoke from burn pits during his service in Iraq. He has also provided statements from his mother, father, grandparent and girlfriend (who has known him since high school) who all noted that the Veteran developed wheezing and shortness of breath after his deployment. Service treatment records include a report of medical history from January 2002 where the Veteran marked that he did not have a history of asthma, breathing problems, bronchitis, or used an inhaler. However, on the "explanation of 'yes' answers" section, the Veteran noted that he "had asthmatic bronchitis and asthma, but have not used an inhaler for over a year." A March 2002 statement from the Veteran's primary care physician, Dr. W.A.B., who noted the Veteran "enjoys good health with no significant medical problems either past or present." A March 2003 record noted a diagnosed of upper respiratory infection. In an April 2007 physician's medical history report, the Veteran noted that he had a history of bronchitis in 2004 with no current problems. In August 2005, the Veteran reported he was on an albuterol inhaler, as needed, due to "hacking and coughing." Additional September 2005 records included refills and use of an albuterol inhaler. He also noted that he had mild, intermittent wheezing. It was noted he could wear a gas mask. September 22, 2005 paperwork recorded a diagnosis of asthma. He was noted to smoke two to three cigarettes a day for the past 8 to 10 months. In February 2011, the Veteran was afforded a VA examination. The Veteran reported being told he had asthmatic bronchitis in 2004, and he was given an inhaler, which he used periodically prior to deployment. He was diagnosed with asthma. The examiner opined that the Veteran's mild asthma was at least as likely as not a result of his military service because he had no history of asthma or reactive airway disease prior to his service, and he developed asthma while he was a member of the ARNG. An addendum opinion was requested, and in April 2013 a VA physician's assistant reviewed the claims file and opined that the Veteran's asthmatic bronchitis was not permanently aggravated by his service in Iraq. She explained that he was diagnosed with asthma in 2004, and that there were "vague references" to asthma during deployment. He returned from Iraq in 2006 but did not seek treatment for asthma until 2010. She found that he had mild asthma prior to deployment and that he continues to have mild asthma. In the August 2014 Board remand, the Board noted that the Veteran has stated he was not diagnosed with asthma prior to his service in Iraq. The 2011 VA examiner noted he was diagnosed with asthmatic bronchitis in 2004, and the 2013 examiner noted he had mild asthma prior to deployment. The Board ordered that the Veteran be afforded another VA examination to address these opposing opinions. A third VA opinion was provided in September 2014, by the same examiner who provided the April 2013 negative opinion. That examiner again stated that it is less likely as not that the asthma is linked to the Veteran's service, citing discrepancies in the Veteran's reported history and stressing that the Veteran first mentioned breathing problems four years after active duty, in 2010. In the Veteran's December 2015 appellate brief, he stressed that his exposure to burn pits in Iraq create an etiological link to his respiratory condition. The Veteran pointed to an April 2010 VA training letter on environmental hazards in Iraq, Afghanistan, and other military installations which in part highlights the possibility that toxins from the burn pits negatively affect the respiratory system. The record reflects that the Veteran was stationed in Balad, Iraq, and the letter specifically discusses the Balad, Iraq burn pit. The Veteran contended that the VA failed to conduct VA examinations with consideration of the toxins that he was exposed because of the burn pits. Upon consideration of the evidence, the Board finds a grant of service connection for a respiratory condition appropriate. The evidence is at least in equipoise as to if the Veteran suffers from a respiratory condition incurred, or aggravated, while performing ACDUTRA during his deployment. 38 U.S.C.A. §§ 101(24), 106, 1131. Again, when there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). Here, the medical evidence including STRs are conflicting as to if the Veteran had asthma prior to his service or participation in the reserves and deployment. Two VA examiners, the February 2011 examiner and the April 2013 and September 2014 examiner, disagree based on the record as to whether the Veteran's asthma had its onset or was permanently aggravated by service or the reserves and deployment. The Board in this case weighs more heavily the Veteran's statements that he experienced respiratory symptoms as due to his deployment. The Veteran provided several statements and testimony during his Board hearing regarding the onset of his respiratory symptoms. He has stated that he was never diagnosed with asthma prior to his service in Iraq. He testified to breathing fumes, fuel, and the smoke from burn pits during his service in Iraq. He has also provided statements from his mother, father, grandparent and girlfriend (who has known him since high school) who all noted that the Veteran developed wheezing and shortness of breath after his service in Iraq. The Board acknowledges that the Veteran is not competent to diagnose his respiratory condition or opine as to its etiology. However, he is competent to describe wheezing, coughing, and shortness of breath, and observe the onset or worsening of these symptoms as a result of his deployment which the record supports included exposure to burn pits in Iraq. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Therefore, upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is for the claim for service connection of a respiratory disorder, upon applying the benefit of the doubt doctrine. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ORDER Entitlement to service connection for a respiratory condition is granted. REMAND The September 2015 Court order, granting the joint motion, remanded the claim for service connection for a stomach disorder for consideration of service connection on the basis of an undiagnosed illness pursuant to Persian Gulf wartime service under 38 C.F.R. § 3.317(b); 38 U.S.C.A. § 1117(g). As such, an additional VA examination is necessary in order to establish whether any stomach disorder diagnosed is related to service, including as an undiagnosed illness or medically unexplained chronic multisymptom illness. Accordingly, the case is REMANDED for the following action: 1. Furnish the Veteran with a 38 C.F.R. § 3.159(b) letter addressing his claim under 38 C.F.R. § 3.317. 2. Schedule the Veteran for a VA examination to determine the nature and likely etiology of his claimed stomach disorder. The claims file should be made available to the examiner for review in connection with the evaluation, including all electronic files. After reviewing the file including the entirety of this remand, eliciting a history directly from the Veteran, and conducting a thorough physical examination, as well as any diagnostic studies deemed necessary, the examiner should: (a) Outline each and every known clinical diagnoses found in regard to the Veteran's claimed stomach disorder. If the examiner finds any symptomatology that can be related to an undiagnosed illness or a medically unexplained chronic multisymptom illness, he or she should explicitly state so. (b) Opine as to whether it is at least as likely as not (a 50 percent or greater probability) that known clinical diagnoses stated were incurred in, aggravated by or otherwise related to the Veteran's active military service and/or his participation in the ARNG. (c) Opine as to whether any chronic stomach disorder symptomatology found can be deemed to be due to an undiagnosed illness or a medically unexplained chronic multisymptom illness due to the Veteran's active military service and/or his participation in the ARNG. The examiner should provide a complete rationale for any opinion provided. The claims file must be properly documented regarding any notifications to the Veteran as to the scheduled examination. The examination report must be added to the Veteran's claims file via VBMS. 2. Then, readjudicate the claim for service connection for a stomach disorder. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). After the Veteran has been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on this matter. 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 2014). ______________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs