Citation Nr: 18151576 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 12-08 801 DATE: November 20, 2018 ORDER Entitlement to service connection for asthma, to include as due to exposure to mustard gas, or in the alterative, as due to exposure to sand and dust, is denied. Entitlement to service connection for a respiratory disability other than asthma, best characterized as restrictive lung disease, to include as due to exposure to mustard gas, or in the alterative, as due to exposure to sand and dust, is denied FINDINGS OF FACT 1. The record does not contain clear and unmistakable evidence that asthma was present on entrance to service and was not aggravated by service, and the preponderance of the evidence of record is against a finding that it is at least as likely as not that the Veteran’s asthma is etiologically related to his military service. 2. The preponderance of the evidence of record is against a finding that it is at least as likely as not that the Veteran’s respiratory disability other than asthma, best characterized as restrictive lung disease, is etiologically related to his military service. CONCLUSION OF LAW 1. The criteria for service connection for asthma have not been met. 38 U.S.C. §§ 1131, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2018). 2. The criteria for service connection for a respiratory disability other than asthma, best characterized as restrictive lung disease, have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1985 to June 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. This matter was previously before the Board in July 2013, December 2014, and July 2017 when it was remanded for further development. It now returns to the Board for further appellate consideration. In August 2015, Kenneth L. LaVan, Attorney, withdrew his representation of the Veteran. The Veteran was sent a letter in February 2017 that notified him of his right to appoint another representative. To date, the Veteran has not appointed another representative. As such, the Board will recognize the Veteran as pro se. In May 2014, the Veteran and his mother testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. As with the prior Board remand, the Board has characterized the Veteran’s service connection claim for asthma more broadly to include any respiratory disability. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009). However, presently, the Board concludes that bifurcating the Veteran’s claim into two separate issues of independent adjudication is the proper way of handling the appeal. Specifically, the Board is bifurcating the claim into two separate issues - (1) service connection for asthma and (2) service connection for a respiratory disability other than asthma. As such, this appeal has been recharacterized as set forth on the title page. Locklear v. Shinseki, 24 Vet. App. 311 (2011). Service Connection Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2018). To establish service connection on a direct incurrence basis, the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, when no pre-existing condition is noted upon examination for entry into service, a veteran is presumed to have been in sound condition as a general matter. VA has the burden to rebut this presumption of soundness through clear and unmistakable evidence that the disability both pre-existed service and was not aggravated by service. The second prong, lack of aggravation, may be rebutted through clear and unmistakable evidence either that (1) there was no lasting increase in disability during service, or (2) any such increase was due to the natural progression of the condition. 38 C.F.R. § 3.304(b); Quirin v. Shinseki, 22 Vet. App. 390, 396-97 (2009); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 234-35 (2012). 1. Entitlement to service connection for asthma, to include as due to exposure to mustard gas, or in the alterative, as due to exposure to sand and dust As set forth in his May 2014 testimony, the Veteran has reported his asthma pre-existed his active service and increased in severity shortly after he ran through a gas chamber during basic training and again once in California. He further testified that his asthma was also worsened by exposure to sand and dust as he was stationed in the Mohave desert where he participated in physical training marches. As an initial matter, the existence of a present disability is established through the Veteran’s medical records produced during the course of this appeal. Specifically, VA treatment records, including those dated in June 2008, July 2008, August 2008, September 2008, October 2008, January 2009, June 2009, May 2011, August 2012, March 2013, October 2013, March 2014, July 2014, and December 2015, indicated the existence of asthma. An April 2016 VA examiner endorsed a diagnosis of asthma but noted the diagnosis of asthma was in question as the Veteran’s current pulmonary function tests (PFTs), while showing a low forced vital capacity, were not consistent with a diagnosis of asthma, but were most suggestive of restrictive disease. Similarly, an June 2018 VA examiner also found the Veteran’s PFT results were consistent with restrictive lung disease and not with a diagnosis of asthma. Specifically, June 2018 VA examiner explained PFT results in asthma generally showed airflow obstruction and the Veteran’s PFT results were not consistent with a diagnosis of asthma. Nonetheless, based on the other medical evidence of record and because the April 2016 VA examiner did endorse a diagnosis of asthma, albeit with stipulations, the Board finds a current disability of asthma has been demonstrated. A respiratory disability, to include asthma, was not noted on the Veteran’s June 1984 service entrance examination report. Indeed, the June 1984 service entrance examination report noted the Veteran’s lungs and chest were clinically normal upon examination. As such, the Veteran is presumed to have been sound at entrance to service as to a respiratory disability, to include asthma. As described above, in May 2014 testimony, the Veteran and his mother reported his asthma pre-existed his active service. Similarly, in a September 2012 medical record from the Social Security Administration, the Veteran reported he had long-standing asthma, which started when he was a child. In this regard, a May 1988 service treatment record noted, in part, that the Veteran had pneumonia at age two requiring hospitalization and IV complication therapy. Another May 1988 service treatment record noted, in part, childhood asthma by history. A June 2009 VA treatment record noted the Veteran had asthma since childhood by history. Thereafter, pursuant to a December 2014 Board remand, an April 2016 VA examiner found, in part, the Veteran’s claimed asthma, which clearly and unmistakably existed prior to service, was clearly and unmistakable not aggravated beyond its natural progression by an in-service injury, event, or illness. However, as part of the proffered rationale, the April 2016 VA examiner explained that while medical records only supported a diagnosis of asthma beginning in 2008, the Veteran stated in supporting documents that he had asthma on entrance to service, and based on current regulations, this statement by the Veteran was used to establish a history of asthma prior to service. However, lay statements by a Veteran concerning a preexisting condition, alone, are insufficient to rebut the presumption of soundness. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238 (1994). Thus, pursuant to a July 2017 Board remand, a June 2018 VA examiner found the claimed condition of asthma clearly and unmistakably existed prior to service. In support of such, the June 2018 VA examiner found the Veteran’s claimed asthma existed prior to entry into military service as review of the service treatment records, including a pre-anesthetic summary record dated in May 1988, for surgery to remove his tonsils, documented that the Veteran had childhood asthma but no recent problem. As the June 1984 service entrance examination report noted the Veteran’s lungs and chest were clinically normal upon examination, the record references the existence of asthma prior to service by report of history only by the Veteran, and the June 2018 VA examiner noted that the Veteran had had no recent problem with asthma, the Board does not find that such evidence constitutes clear and unmistakable evidence that asthma was present on entrance to service. In so finding, the matter of whether there is clear and unmistakable evidence that asthma was not aggravated in service is rendered moot. As such, the issue is for consideration on a direct incurrence basis. A May 1988 service treatment record, dated a month prior to the Veteran’s separation from service, which noted a report of childhood asthma by history, also specifically noted that there had been no recent problem. Another May 1988 service treatment record, which noted the Veteran had had pneumonia at age two requiring hospitalization and IV complication therapy, also noted the Veteran had had no complications or recurrences. The record does not demonstrate the presence of asthma prior to 2008. Further, as noted above, the April 2016 VA examiner found there were no medical records showing treatment for asthma. Rather, the April 2016 VA examiner found there was no medical evidence of a lung condition until 20 years following discharge which was most suggestive of disease incurred after service and unrelated to exposures in service. Further, a layperson’s assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service. Bardwell, 24 Vet. App. at 40. Further, the April 2016 VA examiner opined there was no medical evidence to substantiate Veteran’s claim of lung disease secondary to service. Similarly, the June 2018 VA examiner found that it was less likely than not that the Veteran’s asthma or any other diagnosed respiratory disability was incurred in, caused by, or was otherwise related to, the Veteran’s active service. In support of such, the June 2018 VA examiner explained review of the service treatment records did not document treatment of wheezing, evaluation for wheezing or symptoms related to asthma while the Veteran was in military service. The June 2018 VA examiner further found there was no documentation in the service treatment records that the Veteran was treated for wheezing or any lower respiratory tract illness. The June 2018 VA examiner explained that exposure to mustard gas would have caused immediate acute respiratory symptoms due to its very irritant and toxic nature and symptoms related to mustard gas exposure would have been documented in the service treatment records. The June 2018 VA examiner explained to exposure to sand and dust could have triggered acute wheezing in the veteran but there was no documentation of such. Further, the June 2018 VA examiner found that review of records documented that the Veteran has worked in the past in environments where he would be exposed to second hand cigarette smoke. Further the June 2018 VA examiner found in view of the Veteran’s PFT results it was possible that his symptoms of shortness of breath and wheezing may be related to his congestive heart failure. The June 2018 VA examiner noted review of the service treatment record did not document treatment of wheezing, evaluation for wheezing or symptoms related to asthma. The Veteran has not been shown to have the requisite knowledge and expertise to be deemed competent to offer an opinion concerning the etiology of his asthma as such a determination requires medical training. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, the Board finds the April 2016 and June 2018 VA opinions, taken in combination, to be highly probative. Each examiner’s opinions were predicated on a full overview of the entire relevant record and were each presented by an examiner who were specifically tasked to present opinions after review of the evidence. Each examiner explained the reasons for their conclusions based on review of the record. Thus, these opinions are entitled to substantial probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There are no medical opinions of record to the contrary. Thus, the preponderance of the evidence is against a finding that the Veteran’s asthma is related to service and service connection is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for a respiratory disability other than asthma, to include as due to exposure to mustard gas, or in the alterative, as due to exposure to sand and dust The Board concludes that evidence of record demonstrates that the Veteran also has a current diagnosis of a respiratory disability other than asthma. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.303(a). Specifically, such evidence includes an August 2008 VA treatment record, which noted a provisional diagnosis of severe restrictive lung disease, an October 2008 VA treatment record, which noted a diagnosis of asthma/allergic rhinitis, an October 2012 determination for the Social Security Administration, which noted chronic obstructive pulmonary disease, and a March 2015 VA treatment record, which provided an assessment of allergic rhinitis, seasonal. However, upon examination the April 2016 and the June 2018 VA examiners each noted restrictive lung disease. Specifically, the April 2016 VA examiner endorsed a diagnosis of restrictive lung disease secondary to obesity and the June 2018 VA examiner noted the Veteran’s current PFT results were consistent with restrictive lung disease and not with a diagnosis of asthma. Thus, the Board finds that a respiratory disability other than asthma, best characterized as restrictive lung disease, has been demonstrated. However, there is no evidence of record that a respiratory other than asthma pre-existed service. Hence, the presumption of soundness on entrance to service as to a respiratory other than asthma pre-existed service has not been rebutted, and entitlement to service connection for a respiratory other than asthma, best characterized as restrictive lung disease, may be considered on the basis of direct incurrence due service. As noted above, the April 2016 VA examiner found, in part, that there was no medical evidence that the Veteran had significant mustard gas exposure while in service and his lung function findings were also not consistent with the findings typically seen in case of mustard gas exposure. As to the Veteran’s claim of sand/dust exposure causing his current lung findings, the April 2016 VA examiner found there was no medical evidence of a lung condition until 20 years following discharge which was most suggestive of disease incurred after service and unrelated to exposures in service. Further, a layperson’s assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service. Bardwell, 24 Vet. App. at 40. Further, the April 2016 VA examiner opined there was no medical evidence to substantiate Veteran’s claim of lung disease secondary to service and as noted above diagnosed restrictive lung disease as secondary to obesity. Similarly, the June 2018 VA examiner found that it was less likely than not that the Veteran’s asthma or any other diagnosed respiratory disability was incurred in, caused by, or was otherwise related to, the Veteran’s active service. In support of such, the June 2018 VA examiner explained review of the service treatment records did not document treatment of wheezing, evaluation for wheezing or symptoms related to asthma while the Veteran was in military service. The June 2018 VA examiner further found there was no documentation in the service treatment records that the Veteran was treated for wheezing or any lower respiratory tract illness. The June 2018 VA examiner explained that exposure to mustard gas would have caused immediate acute respiratory symptoms due to its very irritant and toxic nature and symptoms related to mustard gas exposure would have been documented in the service treatment records. The June 2018 VA examiner explained to exposure to sand and dust could have triggered acute wheezing in the veteran but there was no documentation of such. Further, the June 2018 VA examiner found that review of records documented that the Veteran has worked in the past in environments where he would be exposed to second hand cigarette smoke. Further, although the Veteran has linked his respiratory disability to in-service mustard gas and/or sand exposure, he is not competent to offer an opinion concerning the etiology of his restrictive lung disease as such a determination requires medical training. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, the Board finds the April 2016 and June 2018 VA opinions, taken in combination, to be highly probative. Each examiner’s opinions were predicated on a full overview of the entire relevant record and were each presented by an examiner who were specifically tasked to present opinions after review of the evidence. Each examiner explained the reasons for their conclusions based on review of the record. Thus, these opinions are entitled to substantial probative weight. Nieves-Rodriguez, 22 Vet. App. at 304. Given the evidence outlined above, the Veteran’s respiratory other than asthma, best characterized as restrictive lung disease, has not been shown to be related to his service or to have otherwise originated during active service. Therefore, service connection for respiratory other than asthma, best characterized as restrictive lung disease, is not warranted. In reaching this conclusion, the Board   has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-56. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Espinoza, Counsel