Citation Nr: 1758056 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 11-30 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for asthma. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to October 1968, to include service in the reserves. This matter came to the Board of Veterans' Appeals (Board) from a March 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing in May 2016; the transcript is of record. This matter was remanded in October 2016. In a written statement received in June 2016, the Veteran appears to have raised the issue of entitlement to service connection for hypertension. 06/06/2016 VA 21-4138 Statement in Support of Claim. The Veteran is advised that his statement does not meet the standards of an intent to file (3.155(b)) or those of a complete claim under 38 C.F.R. § 3.160(a). The AOJ should notify the Veteran as to the procedures required under 38 C.F.R. § 3.155 for filing a claim for VA benefits. FINDING OF FACT The weight of the evidence is against a finding that asthma manifested during the Veteran's period of active service or is otherwise due to active service, and against a finding that asthma manifested during a period of active duty for training. CONCLUSION OF LAW The criteria for entitlement to service connection for asthma have not been met. 38 U.S.C. §§ 101(22)-(24), 1110, 5107 (2012); 38 C.F.R. §§ 3.6(a)-(d), 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has been provided notice with regard to his service connection claim. He bears the burden of demonstrating any prejudice with the notice. That burden has not been met in this case as the Veteran has not alleged such prejudice. Regarding the duty to assist, the evidence of record contains service treatment records, VA treatment records, private treatment records, and lay statements and testimony from the Veteran. Post-Remand, attempts were made to obtain additional service treatment records, to include from his reserve period; however, none were located. 04/18/2017 VA 21-3101 Request for Information; 05/20/2017 VA 21-3101 Request for Information; 07/14/2017 STR-Reserve STR/DoD Form 2963. The Veteran did not respond to VA's request for submission of any service records. See 08/01/2017 other. There is otherwise no indication of relevant, outstanding records which would support the service connection claim. The Veteran was afforded a VA examination and opinions were proffered with regard to his claim which will be discussed in detail below. Criteria & Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). An award of service connection based solely on continuity of symptomatology only applies to the listed chronic disabilities in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). The second and third Caluza elements may also be satisfied under 38 C.F.R. § 3.303(b), by the submission of (a) evidence that a condition was "noted" during service or during an applicable presumption period; (b) evidence showing post-service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1998). Active service includes any period of active duty for training (ACDUTRA) during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training (IDT) during which the veteran was disabled from an injury incurred in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). Inactive duty training includes duty prescribed for the Reserves. 38 U.S.C. § 101(23)(A). Reserve service includes the National Guard of the United States. 38 U.S.C. § 101 (26), (27). Duty, other than full-time duty, performed by a member of the National Guard of any State, is considered to be inactive duty training. 38 C.F.R. § 3.6(d)(4). In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court emphasized that lay testimony is competent if it pertains to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. See 38 C.F.R. § 3.159(a)(2) ("Competent lay evidence means 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 the facts or circumstances and conveys matters that can be observed and described by a lay person."). 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(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A current diagnosis of asthma has been established by the record. Private treatment records reflect that the Veteran was initially seen in July 1998 for frequent episodes of asthma since January of 1998. Thereafter, he continued to seek treatment for asthma. 01/19/2010 Medical Treatment Record-Non-Government Facility. Likewise, VA treatment records dated in 2011 and 2012 reflect treatment for asthma. 11/29/2016 CAPRI at 12, 20. Thus, the first element of service connection has been established. The Veteran does not assert that asthma manifested during his period of active service. Rather, the Veteran asserts that he initially sought treatment for asthma in July 1988 while on ACDUTRA at Vandenberg Air Force Base (AFB) in California. 05/23/2016 Hearing Testimony at 4-5; 11/09/2011 Form 9. Service personnel records reflect that he had 14 days of ACDUTRA between September 7, 1987 to September 6, 1988. 06/06/2016 Military Personnel Record. In order for service connection to be warranted, his asthma would have to have manifested during a period of ACDUTRA. Service treatment records are on file from his period of active service and reserve service (10/23/2013 STR-Medical) and a March 1987 Report of Medical Examination (06/06/2016 Medical Treatment Record-Government Facility at 13) submitted by the Veteran which do not reflect any complaints, treatment, or diagnosis of asthma. No records from a 1988 hospitalization have been located nor has the Veteran submitted such records. While asthma is not reflected in the service treatment records on file, upper respiratory infections are reflected and the March 1987 Report of Medical History reflects hay fever. The July 1998 treatment record reflects that the Veteran had a past history of asthma during his childhood when he used to have frequent episodes of hay fever as well as cough and wheezing at times which was mild. He was not hospitalized at any time for acute asthmatic attacks. The episodes of wheezing subsided, but then started again about 20 years back at the age of 33. He was having 3-4 mild attacks a year which were promptly relieved with bronchodilators. Many of those attacks followed upper respiratory tract, infection or during the grass, pollen and ragweed season. He used to be fairly free of attacks in the winter time. He was not taking any asthma medications on a regular basis. 06/24/2010 Medical Treatment Record-Non-Government Facility at 1. In light of the competent evidence of a current diagnosis of asthma, the in-service notations of upper respiratory infections and hay fever, and the Veteran's lay assertions, the Board sought an etiological opinion via its October 2016 remand. The Veteran underwent a VA respiratory examination in March 2017, to include pulmonary function testing, wherein the Veteran reported that he was told he had asthma in 1988 and he was prescribed Ventolin MDI. He does not recall being given a 'line of duty profile' as his asthma improved on medication and he was able to perform physical fitness training during this time. Upon review of the evidence of record, the examiner found that the Veteran met the diagnostic criteria for asthma and based on the fact that his initial symptoms and treatment for asthma occurred in 1988, which is 20 years after discharge from active military duty, it is less likely than not that his asthma is service-connected. The examiner stated further that based on the fact that review of available records show no evidence of 'line of duty profile' for asthma during 'reserve time,' it is less likely than not that asthma is related to a period of active service, ACDUTRA or IDT. 03/16/2017 C&P Exam. In October 2017, an AMC medical officer reviewed the evidence of record and provided an etiological opinion. 10/14/2017 Medical Opinion. The clinician found the Veteran to be credible; however, opined that it is less likely than not that his asthma had its onset during period of active duty, ACDUTRA or IDT for multiple reasons. The examiner stated, first, that medicine differentiates asthma, upper respiratory infections and hay fever based on etiology, pathophysiology and symptomatology of disease. The examiner discussed the difference between these conditions, citing to multiple sources, noting that the diagnosis of asthma (airflow obstruction) is based on an understanding of its pathophysiologic, etiologic and clinical characteristics as compared to hay fever (perennial allergic rhinitis with an inflammation of the nasal mucous membranes) and/or an upper respiratory infection (bacterial and viral infections of the respiratory tracts). The examiner acknowledged the September 1966 in-service upper respiratory infection where he had a slight elevation in temperature, chest congestion and rales, with a normal chest x-ray. The examiner stated that there were no clinical signs and symptoms of asthmatic airway obstruction. He was seen for follow-up four days later and there remained some clinical evidence of his upper respiratory infection. In August 1967, the Veteran presented with an upper respiratory infection consistent with a head cold and chest congestion, with fever and wheezing. He was treated with Actifed. On follow-up his symptoms had resolved which were negative for fever and/or wheezing. The examiner stated that there were no clinical signs and symptoms of asthmatic airway obstruction. In May 1968, May 1971, and April 1974 physical profile serial reports were negative for complaints, diagnosis, treatment, injury and/or events related to recurrent upper respiratory infections and/or any signs and symptoms related to asthma. In October 1979, the Report of Medical Examination was negative for complaints, diagnosis, treatment, injury and/or events related to recurrent upper respiratory infections and/or any signs and symptoms related to asthma. The chest films were within normal limits. The clinical evaluation for the head, nose, sinuses, throat, lungs and chest were normal. In June 1981, the reserve periodic Report of Medical Examination was negative for complaints, diagnosis, treatment, injury and/or events related to recurrent upper respiratory infections and/or any signs and symptoms related to asthma. The chest films were within normal limits. The clinical evaluation for the head, nose, sinuses, throat, lungs and chest were normal. Subjectively, the Veteran reported seasonal hay fever without current symptoms. In June 1981, the Report of Medical Examination was negative for complaints, diagnosis, treatment, injury or events related to recurrent upper respiratory infections and/or signs and symptoms related to asthma. The chest films were within normal limits. The clinical evaluation for the head, nose, sinuses, throat, lungs, and chest were normal. Subjectively, the Veteran reported controlled hypertension without symptoms and seasonal hay fever without symptoms. The medical officer stated that a review of the 1987 thru 2004 Reserves ACDUTRA and/or IDT records were negative for documentation related to clinical and/or subjective complaints, diagnosis, treatment, or injury and/or events and/or aggravation of his claimed asthma while on Reserve duty or training periods and/or events related to hay fever and/or upper respiratory infections. Therefore, the examiner opined that it is at least as likely as not that the Veteran's 1967-68 clinical presentations were consistent with acute, self-limited and transient upper respiratory infections and without any pathophysiologic and/or etiologic characteristics of asthma and/or any asthmatic events. Thus, the examiner opined that it was less likely than not that the Veteran's claimed asthma had its onset during his period of active duty, ACDUTRA, or IDT. With an understanding and consideration for the clinical, etiologic and pathophysiologic differences between seasonal hay fever, upper respiratory infection and asthma, it is less likely than not that the Veteran's claimed asthma had its onset during a period of active duty, ACDUTA or IDT because of a lack of continuity of symptomatology, chronicity and clinical evidence to support asthma manifested during service, ACDUTRA and/or IDT. The Board has given consideration to the Veteran's assertions, treatment records, and the competent medical opinions of record. There is no probative, competent evidence to support a finding that his asthma is due to service, or manifested during a period of ACDUTRA. In this regard, the record does not reflect that the Veteran has the requisite medical expertise to find that his asthma is due to service or manifested during a period of ACDUTRA. His opinion in this regard is not competent, given the complexity of the medical question involved, to include the etiology of asthma, a disease of the trachea and bronchi. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (recognizing that orthopedic ACL tear is too medically complex for lay evidence to competent to diagnose); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (stating that lay persons not competent to diagnose cancer); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis). As such, the Veteran's opinion carries no weight as to etiology. In light of the current diagnosis of asthma, the Veteran's lay assertions pertaining to asthma during a period of ACDUTRA in 1988, and the service record notations of hay fever and upper respiratory infections, the Board sought a medical opinion and both VA clinicians returned with negative conclusions and supporting rationale. The Board finds that the competent medical opinions from persons with specialized training and experience outweighs the lay contentions of the Veteran, especially in the case of a complex disorder such as asthma. As detailed above, both the March 2017 and October 2017 examiners found no relationship between his asthma and service, to include a period of ACDUTRA. Given the depth of the examination reports and the fact that the opinions were based on a review of the applicable record and consideration of the pertinent facts and medical history of the Veteran, the Board finds such opinions, collectively, are important evidence that weigh against a linkage to active service, to include a period of ACDUTRA. Based on the current state of record, to include the VA opinions of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran's asthma manifested in service or is due to active service or manifested during a period of ACDUTRA. There is no contrary competent opinion of record. In conclusion, the most probative, competent evidence is against a link between asthma and active service, ACDUTRA, and IDT. As the preponderance of the evidence is against the issue, reasonable doubt does not arise, and service connection is denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for asthma is denied. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs