Citation Nr: 18147486 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 12-16 943 DATE: November 6, 2018 ORDER Entitlement to service connection for a respiratory condition, to include nasopharyngitis, is denied. FINDING OF FACT The preponderance of the evidence fails to show the Veteran’s current nasopharyngitis is related to service or a service connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a chronic respiratory disorder, to include nasopharyngitis, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.316 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1945 to April 1947. The Veteran requested an in person hearing on his substantive appeal, but later withdrew the request. Following a Board remand in June 2016, which reopened the Veteran’s previously denied claim for service-connection for nasopharyngitis, VA requested additional service records of possible chemical exposure during the Veteran’s active service, recognizing potential entitlement under 38 C.F.R. § 3.316 (service connection based on exposure to vesicant agents such as mustard gas). The requested records are unavailable, and were “fire-related”, suggesting they were most likely destroyed in a fire that occurred at the National Personnel Records Center in St. Louis, Missouri, in July 1973. The Board notes when service records are lost or missing, VA has a heightened duty to assist the claimant in developing the claim, as well as to consider the applicability of the benefit of the doubt rule and to explain its decision. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). Thus, because the Veteran’s service records are not available, VA has a heightened duty to assist in the present case. After a careful review of the file, the Board finds that all necessary development has been accomplished, as the Veteran indicated in an October 2018 Brief that he had no additional argument or evidence to submit. Therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). All known available evidence and information has been collected. 1. Entitlement to service connection for a respiratory condition, to include nasopharyngitis The Veteran contends that he has a current respiratory condition, including nasopharyngitis that began in and is a result of his active service. The Board finds there is not sufficient evidence to show that the Veteran’s current condition is related to his service. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.§ 1110, 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection can also be established for certain diseases based on exposure to specific vesicant agents, including mustard gas, during military service. 38 C.F.R. § 3. 316. In such instances, the Veteran must prove evidence of in-service exposure and a diagnosis of an associated disability, but is relieved of the burden of providing evidence of a nexus between the current disability and his in-service exposure. 38 C.F.R. § 3.316; see Pearlman v. West, 11 Vet. App. 443, 446 (1998). Laryngitis, bronchitis, emphysema, asthma, chronic obstructive pulmonary disease disorder, and nasopharyngeal cancers are disorder that are entitled to such presumption. See 38 C.F.R. § 3. 316. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. The Veteran claims, in part, that his nasopharyngeal disorder is the result of his in-service exposure to mustard gas. Reference was made to exposure while he was stationed at Nichols Field, when he was stationed in Manila. Following Remand, the Veteran was asked to provide additional information pertaining to his alleged exposure to mustard gas. He did not respond. Despite the lack of response, a request for mustard gas exposure information was made through the U.S. Department of Defense and Veterans Affairs: Chemical, Biological, Warfare Exposure System. That search was negative. Accordingly, as there is no proof of exposure to mustard gas or other vesicant agents, service connection under the presumption set forth under 38 C.F.R. § 3. 316 must be denied. Nevertheless, despite there being no credible evidence of in-service mustard gas exposure, the Veteran argues that service connection is warranted on a direct basis. He submitted statements explaining that during his active service, he experienced a lightning strike, and remembered waking up in the hospital and was treated for a respiratory infection. The Board notes that service treatment records confirm his treatment for a respiratory infection in June 1946, however there is no indication that the onset was a lightning strike or any other traumatic event. Service treatment records show the Veteran was treated in 1946 for nasopharyngitis, pneumonia, and malaria. Shedden element (2) has been met. Post-service medical evidence of record shows notations of chronic sinus allergies, and treatment for acute rhinitis and sinusitis in 2001. There is no clear evidence that the Veteran has been treated for a respiratory or sinus condition during the period on appeal, which began on the date of his claim to reopen, in May 2010. A VA medical opinion was secured in June 2010. The examiner took note of the Veteran’s treatment in 1946 for a nasopharyngitis and pneumonia but determined that the symptoms totally resolved. Any current disability of a respiratory nature, including the nasopharynx, would be unrelated to the event over 60 years ago. For in-service event to have caused his current nasopharyngeal disorder, the examiner would expect to have continuation of symptoms and records showing that. Absent that, examiner believes his current condition is unrelated to his service condition of nasopharyngitis and pneumonia. The Board finds the evidence is against a finding that the Veteran’s current sinus allergies are related to service. Although the Veteran had treatment for nasopharyngitis and pneumonia during service, the medical evidence of record is compelling that his current sinus allergy condition is unrelated to service. Despite his statements that he experienced ongoing respiratory infections, there is no evidence of ongoing treatment of his sinuses. Additionally, a VA examiner determined that any current respiratory condition is unlikely to be related to a condition during service. Because the weight of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, entitlement to service connection for a respiratory condition is denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.E. Lee, Associate Counsel