Citation Nr: 1752933 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-28 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for asthma, claimed as acute respiratory disease. ATTORNEY FOR THE BOARD I. Umo, Associate Counsel INTRODUCTION The Veteran served active duty in the U.S. Army from March 1973 to June 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. FINDING OF FACT There is an approximate balance of positive and negative evidence as to whether the Veteran's asthma had its onset during active duty service. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for asthma have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). Given the favorable outcome detailed below, an assessment of VA's duties under the VCAA is not necessary. II. Service Connection Claim Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: (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, the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay evidence may be competent evidence to establish incurrence of a disability in service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary 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. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Here, the Veteran was diagnosed with asthma in 2007, thereby meeting the first element of service connection. Regarding whether there was in-service event or injury, the STRs show the Veteran was diagnosed with acute respiratory disease in March 1973. See STRs, pgs. 6-9. In fact, he was admitted to the hospital for two days because of the respiratory issue. The doctor indicated that the Veteran had mild acute respiratory distress. Therefore, the second criterion of an in-service occurrence has been met for asthma. Finally, the last factor required for a grant of service connection is a nexus (link) between the Veteran's in-service injury and his current disability, which is generally proven by medical opinion or competent lay evidence. In this instance, there is competent lay evidence that establishes a link between the in-service occurrence and the current disability. Additionally, there is an approximate balance of positive and negative medical evidence that establishes a link between the in-service occurrence and the current disability. Specifically, the Veteran contends that during service after he was diagnosed with acute respiratory disease, the doctors informed him that this issue would be a re-occurring problem. See December 2011 Statement in Support of Claim. Likewise, once he was released from active duty to the reserves the doctors told him that he would suffer from respiratory problems throughout his lifetime and encouraged him to maintain his records for further problems that may occur. Id. The Veteran asserts that when he lived in Wisconsin, he would get sick at least one or two times per year and would require antibiotics. After he moved to Colorado, the condition improved but he still suffers from intermittent asthma, as diagnosed by Dr. W.S. See Private Medical Record from March 2008. The Veteran maintains that he was not sick with any respiratory issues prior to service, but has had issues since he was diagnosed with acute respiratory disease. Moreover, in several buddy statements from the Veteran's spouse, brother, and mother, they report that the Veteran has suffered from respiratory complications since service. An excerpt from his spouse's journal shows that in July 1980, the Veteran was diagnosed with walking pneumonia. See February 2012 Buddy Statement. The buddy statements from his brother and mother relay similar observations regarding the Veteran's respiratory issues since leaving active service. See December 2012 Buddy Statements. Furthermore, private medical evidence from the Veteran's primary care physician, Dr. K.S., and Dr. W.S. indicate that the Veteran suffers from intermittent asthma that had its onset during service. Specifically, in a January 2012 medical note from his PCP Dr. K.S., he indicated that the Veteran suffers from seasonal allergies and intermittent asthma. The intermittent asthma worsens with infection and exposure to allergens or irritants. The doctor indicated that the Veteran did not have any problems with asthma symptoms until he was hospitalized in 1973 at Ft. Leonard Wood while in service. The doctor stated that the Veteran had an acute respiratory distress syndrome (ARDS) type infection and was quite ill, and hospitalized for a period. Upon discharge, the Veteran was advised he may have long-term problems with his respiratory condition, and Dr. K.S. confirmed that the Veteran has a history of atopy including seasonal allergic rhinitis and intermittent asthma. In medical records from 2009 to 2011, the Veteran was seen by Dr. K.S. for reoccurring respiratory symptoms. The doctor assessed the Veteran with episodic asthma. See December 2011 Private Medical Record, pg. 86. Importantly, in a medical record from November 2008, Dr. K.S. revealed that the Veteran did not exhibit any symptoms of asthma, which supports the episodic nature of the disorder. Likewise, in a private medical letter from Dr. W.S., he indicated that the Veteran had some type of acute respiratory infection in 1973 while in the military. The doctor commented that since that year, every time he gets sick with a respiratory infection at least once a year, he would have a wheezing pattern, which has continued to the present. See December 2011 Private Medical Record of Dr. W.S. Dr. W.S. stated that the Veteran now has a pattern of intermittent asthma that worsens with infection or exposure to allergens or irritants, with a history of seasonal allergic rhinitis and recurrent sinusitis. Id. In a February 2008 evaluation, Dr. W.S. assessed that the Veteran had a history of intermittent asthma with wheeze and shortness of breath with infection and exposure to allergens and irritants. Again, as indicated by Dr. K.S., Dr. W.S. noted that although he had intermittent asthma, at other times his chest could be asymptomatic. Id. at 3. In fact, at the time of the Veteran's assessment his spirometry was normal. Id. Conversely, in the August 2012 VA examination, the examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran's admission exam for acute respiratory disease in March 1973 indicated clear lungs, with enlarged tonsils; no mention of any wheezing. There is no record of any further problems after this. On an exam in April 1978, there was no complaint of asthma, sinusitis or hay fever and the exam was normal. The evidence and diagnosis of asthma is not documented until 2007. Thus, it is more likely that the Veteran's family history of asthma and bronchitis, as well as his history of smoking and occupational exposures to dust, is the causative factor in his development of asthma than a single episode in service of an upper respiratory infection (URI) with tonsillitis and no evidence of wheezing or pneumonia. Although the August 2012 VA examiner gave a negative nexus opinion due to the lack of medical evidence concerning the Veteran's respiratory condition since service, as noted by both doctors W.S. and K.S., the Veteran had periods of being asymptomatic which is indicative of his intermittent asthma. Moreover, the Veteran provided medical evidence concerning intermittent asthma that indicated that intermittent asthma is the mild form of asthma, with low or absent symptoms and infrequent airway symptoms. See January 2013 Web Document. The article went on to suggest that patients with intermittent asthma as individuals whose airway inflammation has not reach a certain critical threshold to result in the more significant burden or symptoms or lung function abnormalities that are seen in persistent asthma. The level of airway inflammation they experience may be truly intermittent, but it is more likely that it is mild enough that the patient has minimal and intermittent symptoms of asthmatic airway inflammation. Similarly, the airways of these patients are not sufficiently inflamed to result in detectable abnormalities on lung function testing, and the risk of airway remodeling is minimal. Even more, the absence of medical evidence is not indicative of a lack of nexus between the in-service occurrence and his current disability. See Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007) (finding that a medical examiner cannot rely on the absence of medical records corroborating that injury to conclude that there is no relationship between the appellant's current disability and his military service). After a review of the evidence, the Board finds that there is an approximate balance of positive and negative evidence concerning whether the Veteran's current disability had its onset during active duty service. Therefore, based on the evidence of record and resolving all doubt in the Veteran's favor, the Board finds that the Veteran is entitled to service connection for asthma. ORDER Entitlement to service connection for asthma, claimed as acute respiratory disease, is granted. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs