Citation Nr: 18147285 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-35 198 DATE: November 2, 2018 ORDER Service connection for bronchial asthma is granted. FINDING OF FACT There is an approximate balance of evidence for and against the claim as to whether the Veteran’s asthma, that was first diagnosed after service, is related to service. CONCLUSION OF LAW The criteria for service connection for bronchial asthma have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service in the U.S. Navy from November 1984 to November 1993. During her service, the Veteran deployed to the Persian Gulf in support of Operation Desert Storm and to the Pacific in support of Operation Fiery Vigil. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of the Agency of Original Jurisdiction (AOJ) that denied service connection for asthma. Service Connection Preliminarily, the Board notes that the issue of entitlement to service connection for bronchial asthma was previously denied by the AOJ in unappealed rating decision in January 2004. While new and material evidence is generally required to reopen previously-denied claims, when additional relevant service department records are received, a prior determination as to a claim for service connection is not final. 38 C.F.R. § 3.156(c). Here, it appears that relevant service treatment records showing treatment for coughing, wheezing, and shortness of breath, not of record at the time of the original denial, were subsequently submitted by the Veteran in November 2013 and July 2015 and associated with the record. Accordingly, this claim is not properly classified as a new and material evidence claim. 1. Service Connection for Bronchial Asthma The Veteran contends her asthma is “chronic” and should be presumptively service connected. She also contends that, as a Gulf War Veteran, her asthma should be presumptively service connected as a medically unexplained illness. As explained in detail below, the Veteran’s asthma is not a chronic disease, nor can it be presumptively connected under the criteria for Gulf War Veterans. However, the Board nevertheless finds that the Veteran’s bronchial asthma qualifies for direct service connection. a) Presumptive Service Connection Service connection may be established on a presumptive basis for certain chronic diseases, and under certain circumstances. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. However, no condition other than one listed in 38 C.F.R. § 3.309(a) will be considered chronic. 38 C.F.R. § 3.307(a) and Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). The Veteran is diagnosed with bronchial asthma. Asthma is not on the list of conditions considered chronic under 38 C.F.R. § 3.309(a). Even though the Veteran’s medical records diagnose her asthma as “chronic,” it is not sufficient to have “a diagnosis including the word ‘chronic.’” 38 C.F.R. § 3.303(b). Because her disease (asthma) is not a chronic disease as defined by regulation, the legal criteria affording the Veteran certain presumptions of service incurrence for specified chronic diseases are not applicable. Veterans of the Persian Gulf may also qualify for presumptive service connection in certain circumstances. 38 C.F.R. § 3.317. The presumption requires objective indications of a qualifying chronic disability. 38 C.F.R. § 3.317(a)(2). Qualifying chronic disability means, either: 1) an undiagnosed illness; or 2) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as: chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders. 38 C.F.R. § 3.317(a)(2)(i). “Medically unexplained chronic multisymptom illness” means “a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities…[I]llnesses of partially understood etiology will not be considered medically unexplained.” 38 C.F.R. § 3.317(a)(2)(ii). Because the Veteran has a diagnosis of asthma, she does not qualify for this presumption under the criterion of “an undiagnosed illness.” She also does not qualify for this presumption as a medically unexplained chronic multisymptom illness. First, the Veteran’s medical records demonstrate that her asthma and symptoms are not out of proportion to physical findings, and she does not have laboratory abnormalities. All of the Veteran’s chest X-rays have been normal. The results of the Veteran’s pulmonary functioning tests have been within normal limits. Second, the Veteran submitted a private medical opinion by G.U., which at least partially explained the etiology of the Veteran’s asthma. G.U. opines that exposure to smoke and ash causes changes in the lungs, including inflammation, resulting in asthma. Even though the opinion claims the exact cause and etiology of asthma is unknown, in this Veteran’s case, the opinion noted that the cause of asthma could include environmental exposures during active duty military service. As an illness of partially understood etiology, the Veteran’s asthma will not be considered medically unexplained. For these reasons, the Veteran’s asthma does not qualify for presumptive service connection as a Persian Gulf illness. b) Direct Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). 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). A layperson is competent to report on the onset and continuity of her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). The Board must assess the credibility and weight of all of the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert, 1 Vet App. at 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As explained in detail below, given the evidence of record, the Board resolves doubt in the Veteran’s favor and finds that the evidence supports the establishment of service connection for bronchial asthma. The Veteran has a disease that was first diagnosed after service, and the Veteran has provided at least one competent, credible and probative medical opinion asserting that her asthma is related to her service. The medical records demonstrate that the Veteran has a current diagnosis of bronchial asthma. For the purposes of 38 C.F.R. § 3.303(d), the Board concludes that the Veteran’s asthma was diagnosed after her discharge from service. The record consists of service treatment records provided by the Veteran, and does not include any entrance or separation examinations, as the AOJ was unable to obtain them. Therefore, the Veteran is presumed to have been in sound condition when she was accepted into service. 38 C.F.R. § 3.304(b). None of the service treatment records reflect that the Veteran was diagnosed with asthma during her military service. There are no medical records showing exactly when the diagnosis occurred. However, the Veteran separated from service in November 1993 and the Veteran reports that she was diagnosed in 1994. The earliest medical record mentioning “asthma” is from 1996. Therefore, the Board concludes that the Veteran’s asthma was first diagnosed after service. In assessing whether the asthma is related to the Veteran’s service under section 3.303(d), the Board will first address the Veteran’s own contention that it is. Specifically, the Veteran contends that her respiratory symptoms started in 1992 after possible exposure to oil-fire smoke, air pollutants and other airborne chemical agents. The Veteran is not competent to explain the underlying causes of her asthma, or to give a nexus opinion between her asthma and service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, she is competent to report her breathing symptoms, which are capable of lay observation. She is also competent to report symptoms at the time that supports a later diagnosis by a medical professional. Id, 492 F.3d at 1377. The Board notes that the Veteran consistently reported the same symptoms during and after service. For example, in 1985, the Veteran reported experiencing coughing, wheezing, and shortness of breath. She reported the same symptoms several times in 1992 and 1993 before her separation from service, and she was prescribed Albuterol, among other nebulizers, and Prednisone, among other corticosteroids, for labored breathing. The symptoms reported and medications prescribed during service are identical to those that appear in the record after the diagnosis of bronchial asthma was made. For example in 1996, 1997, 1999, and 2000, and certainly continuing long after her diagnosis of asthma, the Veteran complained of wheezing, coughing, shortness of breath, and the records noted her on-going use of Albuterol or other inhaler and Prednisone or other corticosteroid. The Board finds the Veteran’s reports of her symptoms credible, given the consistency of the reports, the corroborating objective observations by the medical providers noted in the records, and the consistent prescriptions to address the reported symptoms. Her report of symptoms supported a later diagnosis of asthma. In weighing the probative value of the Veteran’s reports in determining whether asthma is related to service generally, and specifically if her asthma is related to environmental exposure, the Board must also consider the VA examiners’ medical opinions as well as the private opinion provided by G.U. Here, there are four VA opinions (November 2003, June 2015, July 2015, and May 2016) and one private opinion (April 2017). At the first VA examination in November 2003, the examiner opined that a diagnosis of asthma in service was ruled out when the Veteran was diagnosed with upper respiratory infection and bronchitis. The opinion did not address the specific question of environmental exposure causing the Veteran’s respiratory symptoms. The second VA opinion from June 2015 stated that “it is less likely as not that the disability pattern or diagnosed disease is related to a specific exposure event experienced by the Veteran during service,” citing insufficient evidence to support a nexus. The July 2015 VA medical opinion post examination, however, notes that “the Veteran’s asthma [is] at least as likely as not incurred by wheezing and shortness of breath that occurred in service.” The May 2016 VA medical opinion states, “bronchial asthma is less likely as not due to or caused by exposures to environmental hazards experienced by the veteran as a result of her service.” Finally, the April 2017 private opinion by G.U. suggests that the diagnoses of bronchitis and upper respiratory infection that the Veteran received in service to explain her coughing, shortness of breath, and wheezing could have been inaccurate, and it is possible that she had asthma during service. The April 2017 opinion also concluded that it is at least as likely as not that the Veteran’s current asthma is secondary to, related to, and/or aggravated by environmental exposures during active military service. The Board gives more probative weight to the private opinion of G.U., combined with the Veteran’s reports of symptoms and subsequent diagnosis, and to the July 2015 VA medical opinion, than it does to the negative VA examiners’ opinions from November 2003, June 2015, and May 2016. In weighing the evidence, the Board has considered internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza, 7 Vet. App. at 511. The Board gives the first VA examination little weight. First, the examination contains internal inconsistencies and inaccuracies, such as dates and notations of which of the Veteran’s disabilities were actually service connected. For example, it notes that she was service connected for a disability for which she was not. Second, and more significantly, the November 2003 opinion did not at all consider the question of whether the Veteran’s asthma was specifically related to her exposure to environmental hazards during service. The opinion merely suggests that because no diagnosis of asthma was made during service, the asthma is not related to service. Third, as noted above, the November 2003 examiner did not have access to all the service treatment records that G.U. did. Therefore, the negative opinion does not consider records from 1985 and 1992 relating to coughing, wheezing, and shortness of breath. Fourth, of the records that both G.U. and the November 2003 examiner reviewed, G.U. noted entries in the records that the November 2003 examiner did not, which suggests the November 2003 examiner may not have thoroughly review them. For example, the private provider found it significant that when the Veteran complained of coughing, shortness of breath, and wheezing, the underlying symptoms did not resolve, even after treatment for bronchitis and upper respiratory infection. Therefore, she opines, the diagnoses given were incorrect. Moreover, she notes that there is considerable overlap between the symptoms of bronchitis, upper respiratory infections, and asthma, but that asthma does not result in a productive cough whereas the other conditions do. Given that the treating physician in service noted the Veteran’s cough was not productive, G.U. concludes it is likely the Veteran did not have bronchitis or an upper respiratory infection. The November 2003 examination does not discuss the non-productive cough, or the fact that the Veteran’s symptoms never resolved, even with treatment. For all these reasons, the Board gives minimal probative weight to the November 2003 opinion in comparison to the private April 2017 opinion by G.U. The Board also gives the June 2015 VA examination minimal weight on the issue of whether the Veteran’s asthma is related to service. First, the opinion requested in the June 2015 examination was whether the Veteran’s asthma is related to a specific exposure event experienced by the Veteran during service in Southwest Asia, and the examiner’s rationale for the negative opinion was that there was “insufficient evidence to support the fact that the Veteran’s asthma are [sic] related to a specific exposure event.” The rationale is inadequate and fails to explain what additional evidence would have been helpful, or what evidence was actually considered that led the examiner to believe there was no exposure. For example, the rationale does not explain that, hypothetically, the Veteran had no exposure events, or the exposure events considered were inadequate to support a diagnosis of asthma. The statement regarding insufficient evidence is conclusory, not explanatory. Second, in coming to this negative conclusion, the June 2015 examiner reviewed medical records, but it appears the examiner did not review service personnel records that were in the record and did not appear to consider any “exposure event[s]” at all. The Veteran’s personnel records show she completed personnel qualification standards for general damage control and fire watch. April 1991 records show that the Veteran was deployed for Operation Desert Storm and Operation Fiery Vigil. She also reported, which she is competent to do, that in her roles while deployed, she had environmental/chemical exposures relating to explosions for which she was responsible for cleaning the main deck of the ship. She also reported that she was involved in assisting with putting out a fire on a ship, and the Board notes her qualifications included fire watch and damage control. In addition, two separate Environmental/Personal Air Monitoring results from December 1988 show that the Veteran was exposed to petroleum distillates, mineral spirits, and toluene without any protective equipment. The Veteran further reports being exposed to various substances, including paint and smoke. While she is not competent to identify what specific chemicals she was exposed to, her reports fit squarely with the records, and she is capable of stating her jobs included having to put out fires and paint the ship. Her December 1988 personnel records showed she was, indeed, part of a painting operation, and records from April 1990 show she volunteered doing “restoration work” off duty at a high school. The June 2015 VA examination does not appear to take any of the information in the personnel records regarding exposures into account. Third, and as noted below, the AOJ specifically requested a subsequent examination, noting that the June 2015 examination failed to provide adequate rationale. For all of these reasons, the Board gives this opinion minimal weight. The Board gives the July 2015 opinion some weight, but not significant weight. The July 2015 VA opinion was requested to specifically address whether the Veteran’s asthma was incurred in or caused by cough, wheezing, and shortness of breath that occurred in service. The opinion states that it is at least as likely as not that the in-service symptoms are related to the Veteran’s current asthma. In forming this opinion, the examiner reviewed all the service treatment records and noted that the chronicity of the symptoms supports this conclusion. The Board gives this opinion more weight than the November 2003 and June 2015 opinions, but less weight than the April 2017 private opinion because it is facially plausible, though the rationale is a bit conclusory. The examiner listed the specific documents reviewed, and created a timeline showing when all of the Veteran’s symptoms were reported and treated. The timeline is compelling for showing that the symptoms were intermittent during and after service, and never fully resolved. The thorough review of symptoms by this examiner gives the opinion more weight than the November 2003 examination or the June 2015 examination. However, given the limited scope of the question presented, the examiner did not address the question of exposure to environmental hazards. For these reasons, the Board gives the April 2017 opinion by G.U. considerably more weight than this July 2015 opinion. The May 2016 opinion was provided because the June 2015 examination failed to provide complete rationale. In May 2016, the examiner was inquired specifically about any nexus between asthma and exposure to environmental hazards. In reaching a negative opinion on the nexus issue, the May 2016 examiner reviewed treatment records and medical records, but no personnel records. The deficiencies in this examination mirror those in the June 2015 examination. The examiner did not consider any of the personnel records related to exposure or the Veteran’s reports of exposure that the previous examiner also failed to consider. The May 2016 examiner notes that none of the service medical records for upper respiratory infection mention a relation to environmental hazards. However, a 1993 medical record specifically says that the “patient” claims “exposure to lead paint.” In addition, the rationale that is provided is conclusory, and not thoroughly supported. Therefore, the Board gives the May 2016 opinion little weight. The Board gives the private opinion significant weight. The April 2017 private opinion by G.U. considers all of the veteran’s competent lay statements regarding her experiences during deployment, gives them appropriate weight, and provides additional evidence and argument regarding the Veteran’s exposure to smoke and ash. The opinion is plausible on its face and consistent with the other evidence of record. For instance, G.U. notes that the chronicity of the coughing and wheezing during service point to an in-service incurrence, which is an opinion shared by the July 2015 medical opinion post examination. G.U. also cites several studies that have found significant association between asthma and oil fire smoke exposure, specifically, and between asthma and environmental exposures, generally. As noted, the Veteran reported being exposed to fire, and oil fire smoke. Her personnel records at the very least reflect exposure to fire, toluene, petroleum, and mineral spirits. Another study G.U. cites in her rationale found a nexus between volcanic ash related to Operation Fiery Vigil and respiratory conditions like asthma. Personnel records confirm the Veteran’s participation in Operation Fiery Vigil. For the reasons above, the Board gives this opinion significant weight on the issue of incurrence. With three negative VA opinions having little weight (November 2003, June 2015, and May 2016), one positive VA opinion having some weight (July 2015), and one private opinion having significant weight (April 2017), the evidence regarding whether the Veteran’s asthma is connected to or caused by her service is at least in equipoise. As noted, under the benefit of the doubt rule, where there exists “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Therefore, the reasonable doubt on this question is resolved in the Veteran’s favor. 38 U.S.C. §§ 5107; 38 C.F.R. §§ 3.102. In conclusion, given that the Veteran’s asthma was diagnosed after discharge, and that all the evidence establishes that the disease was incurred in service, service connection is warranted. 38 C.F.R. §3.303(d). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Smith, Associate Counsel