Citation Nr: 18153194 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 16-43 997 DATE: November 28, 2018 ORDER Entitlement to service connection for asthma, claimed as shortness of breath or a lung condition, is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's current asthma had its onset in service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for asthma are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Air Force from August 1999 to August 2003, and in the Army from August 2005 to November 2006, February 2009 to March 2010, and February 2012 to October 2012. His service included participation in Operation Iraqi Freedom and Operation Enduring Freedom in Afghanistan. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for restrictive airway disease, claimed as shortness of breath and lung capacity. In his August 2016 substantive appeal, the Veteran limited the issue on appeal to service connection for asthma and this is the only issue currently before the Board. In July 2017, the Veteran filed a notice of disagreement (NOD) for cervical spine and right shoulder impingement ratings assigned in January 2017 and June 2017 rating decisions. These issues are being processed by the RO and are not currently before the Board. In March 2018, the Veteran filed a service connection claim for a right hip disability. A July 2018 deferred rating decision also shows that this issue is being processed by the RO. Entitlement to service connection for asthma, claimed as a respiratory disorder Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Briefly, the Board notes the Veteran initially raised the issue of an undiagnosed illness from his service in Southwest Asia. 38 C.F.R. § 3.317. The medical records confirm an asthma diagnosis and the Veteran does not report that this claim encompasses additional symptoms. Further consideration of discussion of 38 C.F.R. § 3.317 is not warranted. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. December 2009 service treatment records (STRs) include a Post-Deployment Health Assessment following the Veteran’s deployment to Iraq. He expressed concern about sand/ dust and vehicle or truck exhaust exposures. In August 2012, the Army issued a hazardous environmental exposures memorandum. As relevant, it confirmed that the soldiers of the Wisconsin Agribusiness Development Team served at various Afghanistan bases. The Board notes that the Veteran submitted a February 2013 roster report confirming that he served as part of the group identified in this August 2012 Army memorandum. The Army memorandum confirmed that these soldiers were exposed to hazardous air conditions from multiple sources, including a garbage burn pit. The air pollutants due to these exposures exceeded the Environmental Protection Agency (EPA) air quality standards. In his January 2013 claim, the Veteran reported that he wanted to claim shortness of breath or a lung condition as a disability. He claimed it was due to environmental hazards from his deployments. In March 2013, the Veteran completed a Post Deployment Health Re-Assessment. He reported his last deployment was in Afghanistan and ended in September 2012. During the past month, he reported being “bothered a little” by shortness of breath. In March 2013, VA furnished a General Medical Gulf War examination. As relevant, the Veteran described having shortness of breath with exertion. He denied any testing, inhaler use, history of asthma or smoking. Spirometry suggested a restrictive ventilatory defect. Chest X-ray did not show any pulmonary disease. The examiner assessed reactive airway disease. He reported that this had a clear pathology per the diagnostic testing. He stated that there was no clinical evidence to associate asthma with potential deployment exposures. He noted that a study concerning the effect of burn pits was in the planning stages and there was no clear association at this time. In July 2014, the Veteran asserted his asthma was not properly evaluated. He stated that his symptoms returned since he became more active. He reported having to have his inhaler ready at all times. He now experienced shortness of breath episodes at least five times per week. VA treatment records including a July 2016 VA primary care record contain diagnoses of asthma and indicate that the Veteran was stable on the current inhalers. The Veteran contends service connection for asthma, claimed as shortness of breath or a lung condition, is warranted. As explained below, the evidence is at least in a state of relative equipoise, and service connection for asthma, claimed as shortness of breath or a lung condition, will be granted. As the Veteran has been diagnosed with asthma, the current disability requirement has been met. In addition, the Veteran asserts a history of shortness of breath beginning in service that has continued and is now diagnosed as asthma or reactive airway disease. 38 C.F.R. § 3.303(d). Shortness of breath is readily observable, and the Veteran is competent to report such symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007). Post deployment health questionnaires from December 2009 and March 2013 noted concerns about ambient air exposures and shortness of breath, respectively. The August 2012 Army memorandum confirms that the Veteran was part of a group known to have had exposure to poor ambient air during his 2012 Afghanistan deployment. In this case, the Veteran’s reports of military environmental exposure and shortness of breath are highly credible given his service background and supporting service records. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). The evidence against the claim consists of the March 2013 VA medical opinion. The VA examiner does not address the specific facts regarding the environmental exposures and history of symptoms. Rather, he primarily relies on an absence of medical literature supporting nexus. The Court has indicated that such a rationale renders the opinion inadequate for adjudication purposes. Bailey v. O’Rourke, 30 Vet. App. 54, 60 (2018). Thus, the March 2013 VA medical opinion is not probative. Id. In this case, the evidence includes clear documentation of environment exposure for the Veteran and competent and credible reports of breathing problems difficulties that resulted in an asthma diagnosis shortly after service. The Board finds the favorable evidence sufficient to bring the issue of a nexus and current disability into a state of relative equipoise. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (lay evidence may be sufficient in and of itself to substantiate a service connection claim). As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for asthma, claimed as shortness of breath or a lung condition, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. D. Simpson, Counsel