Citation Nr: 1808194 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-22 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for asthma, to include as secondary to service-connected left lung calcified granuloma and/or posttraumatic stress disorder (PTSD), and/or as due to exposure to herbicide agents. REPRESENTATION Veteran represented by: James M. McElfresh, II, Agent WITNESSES AT HEARING ON APPEAL The Veteran and his friend ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2015, the Veteran and his friend testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the record. In October 2016, the Board remanded the case for additional development and it now returns for further appellate review. The Board observes that the Veteran has perfected an appeal as to the issue of entitlement to an increased rating for left lung calcified granuloma and testified before a different Veterans Law Judge on such matter. Consequently, such issue will be addressed in a separate decision. FINDING OF FACT Asthma is not shown to be causally or etiologically related to any disease, injury, or incident during service, to include exposure to herbicide agents, and is not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for asthma have not been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). While the Veteran and his representative have alleged that a March 2017 VA examination is inadequate for adjudication purposes, which will be discussed in detail herein, neither of them have alleged any other deficiency with respect to VA's duties to notify or assist. See Scott, supra (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Analysis 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 of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As relevant to the instant case, asthma is not considered a chronic disease under VA regulations and, therefore, the provisions related to presumptive service connection for chronic diseases are inapplicable. Additionally, the law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents, and that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service. For purposes of the presumption, "herbicide agents" are 2,4-D, 2,4,5-T, and its contaminant TCDD, cacodylic acid, and picloram. 38 C.F.R. § 3.307(a)(6)(i). Veterans who, during active military, naval, or air service, served in the Republic of Vietnam (Vietnam) during the period beginning on January 9, 1962, and ending on May 7, 1975, or in or near the Korean DMZ between April 1, 1968, and August 31, 1971, are presumed to have been exposed to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). This presumption also extends to individuals who performed service in the Air Force or Air Force Reserve under circumstances which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. Id. In the instant case, the record confirms that the Veteran served in Vietnam during the requisite time period and, therefore, he is presumed to have been exposure to herbicide agents coincident with such service. For those veterans who have been exposed to herbicide agents, certain diseases are acknowledged to be presumptively related to such exposure. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, with exceptions not applicable in the instant case. 38 C.F.R. § 3.307 (a)(6)(ii). However, as relevant to the instant case, asthma is not a disease acknowledged to be presumptively related to exposure to herbicide agents. Notwithstanding the foregoing presumption, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In documents of record and at his July 2015 Board hearing, the Veteran claims that his currently diagnosed asthma was caused by his in-service exposure to herbicide agents or other environmental toxins, or his in-service treatment for a viral infection. He has also claimed that his asthma was caused or aggravated by his service-connected calcified granuloma of the left lung and/or PTSD. The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis referable to asthma. Upon his service entrance examination in January 1966, the Veteran reported shortness of breath with exercise, but denied currently or previously having asthma. In January 1968, the Veteran was treated for an upper respiratory infection. At the time of his January 1969 separation examination, he denied currently or previously having shortness of breath or asthma. Furthermore, a January 1969 X-ray revealed a round density in the projection of the posterior aspect of the left sixth rib with a suggestion of a slight amount of calcification in such density. Follow-up treatment reflects a diagnosis of a calcified granuloma of the upper left lung anteriorly. Consequently, service connection for left lung calcified granuloma was granted. Similarly, service connection for PTSD was established as related to the Veteran's service in Vietnam. The Veteran's post-service medical records show he has sought care for his asthma since the 1990s, and VA examinations conducted during the course of the appeal similarly confirm a diagnosis of such disorder. Consequently, the Board finds that the Veteran has a current diagnosis of asthma. Therefore, the remaining inquiry is whether such is related to his military service, to include his exposure to herbicide agents, or his service-connected granuloma and/or PTSD. In this regard, one of the Veteran's providers submitted a letter in January 1998 saying that he believed the Veteran's calcified granuloma could be contributing to his cough. However, such statement does not address the etiology of the Veteran's diagnosis, is speculative in nature, and offered without a rationale. Consequently, it is not probative to the instant matter before the Board. Additionally, the Veteran was originally afforded a VA examination in April 2011, at which time the examiner opined that the Veteran's asthma was of relatively new onset and was not secondary to his old granulomatous disease as one would not expect the old granulomatous disease. However, as the examiner failed to provide a rationale for such opinion, it is afforded no probative weight. Thereafter, in June 2013, an addendum opinion was obtained from another VA examiner. While the June 2013 examiner provided an opinion that the Veteran's asthma was neither caused nor aggravated by his service-connected calcified granuloma of the left lung, the opinion largely consisted of copied portions from medical treatises and repeatedly stated that there was "[n]o objective diagnostic clinical evidence of record to indicate the [V]eteran was diagnosed with asthma..." despite the fact that evidence of record at that time, including the April 2011 examination report, documented such a diagnosis. Consequently, as such opinion was based on an inaccurate factual premise, it is afforded no probative weight. In March 2014, another VA examiner opined that it was less likely than not that the Veteran's asthma was caused by his service-connected PTSD. Unfortunately, the opinion provided simply explained that an article submitted by the Veteran's representative suggesting a relationship between PTSD and asthma was not a credible source and failed to discuss why the Veteran's PTSD did not cause or aggravate his asthma. Therefore, it is afforded no probative weight. Consequently, in light of the foregoing, as well as the Veteran's and his friend's testimony at the July 2015 Board hearing regarding the nature and onset of his asthma as well as newly raised allegations that such disorder was related to his in-service exposure to herbicide agents and/or in-service treatment for a viral infection, the Board remanded the claim in order to afford him a new examination so as to determine the etiology of such disorder. Thereafter, the Veteran underwent another VA examination in March 2017 conducted by a physician. At such time, the examiner interviewed the Veteran, reviewed the record, and conducted a complete examination. He noted that smoking can cause and aggravate asthma conditions, and the Veteran quit smoking in 1978. He also observed that the Veteran reported that he was under the care of an allergist and is receiving allergy injections, and known allergens have been recognized in the past as triggers for asthma. The March 2017 VA examiner opined that the Veteran's asthma was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In this regard, as stated by the Veteran and as shown by the record, he had an onset of asthma many years after his separation from service. Furthermore, the examiner noted that asthma is characterized by recurrent symptoms of wheezing relieved with oral inhalers, and medical records in the service did not shown a pattern of recurrent symptoms of wheezing or shortness of breath following his viral upper respiratory infection or after exposure to herbicides. In this regard, he noted, with citation to medical literature, the diagnosis of asthma hinges on the symptoms of recurrent episodes of airway obstruction to be noted by a physician by history and physical examination. The March 2017 VA examiner further opined that it was less likely than not that the Veteran's asthma was proximately due to or the result of, or aggravated by, his service-connected granuloma and/or PTSD. In this regard, he noted that a granuloma is an area of calcification from a previous infection. It is a localized finding on the lung and, therefore, does not involve the whole lung functioning. It does not cause any symptoms and is mostly found on routine chest X-rays. Furthermore, there is no medical connection between PTSD and asthma. The Board finds that the March 2017 VA examiner's opinion is entitled to great probative weight as such considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). There is no contrary medical opinion of record. In making such determination, the Board notes that, at the July 2015 hearing, the Veteran and his representative both challenged the adequacy of an opinion provided by a physician's assistant and indicated that a specialist opinion was required in this instance. Furthermore, in April 2017, the Veteran's representative alleged that March 2017 VA examiner was not qualified to reach the medical conclusions he did. However, the Board notes that VA satisfies its duty to assist in when it provides a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions, whether that is a doctor, nurse practitioner, or physician's assistant. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (physician's assistant was competent to perform examination); Goss v. Brown, 9 Vet. App. 109 (1996) (recognizing that nurses' statements regarding nexus were sufficient to make a claim well grounded); Williams v. Brown, 4 Vet. App. 270, 273 (1993) (finding opinions of a VA registered nurse therapist competent medical testimony and requiring the Board to provide reasons or bases for finding those opinions unpersuasive). Further, the Board may assume a VA medical examiner is competent. Cox, supra; Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (VA has no obligation to present affirmative evidence of a VA physician's qualifications during Board proceedings, absent a challenge by the veteran); Hilkert v. West, 12 Vet. App. 145, 151 (1999) (an appellant bears the burden of persuasion to show that the Board's reliance on an examiner's opinion was in error). In the instant case, the Board finds that Veteran and his representative have only made generalized statements as to the March 2017 VA examiner's qualifications and have not met their burden of persuading the Board that he was not qualified to offer an opinion. In fact, asthma is a general medical condition and the record reflects that the March 2017 VA examiner is a physician. Thus, absent any indication beyond a general statement by the Veteran and/or his representative, he is presumed to be qualified to offer an opinion on such matter. See Cox, supra; Rizzo, supra. The Board also notes that, in April 2017, the Veteran's representative alleged that the March 2017 VA examiner did not provide a basis for his opinions; however, as discussed previously, he did, in fact, offer a rationale for his conclusions. Furthermore, at his September 2017 Board hearing on a separate matter, he alleged that the March 2017 VA examiner did not review a copy of his prescriptions and only typed on the computer. However, upon a review of the March 2017 opinion, the Board notes that such was provided by a physician, and the examination report makes it clear that the examiner considered all relevant information, to include such provided by the Veteran verbally and the medical records on file that include the Veteran's prescriptions, in rendering his opinion. Therefore, the Board finds that such opinion is sufficient to decide the instant claim. The Board acknowledges that the Veteran's representative has also submitted several internet articles in support of the various theories of entitlement. In this regard, medical treatise evidence can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). However, treatise evidence must "not simply provide speculative generic statements not relevant to the [claimant]'s claim." Wallin v. West, 11 Vet. App. 509, 514 (1998). Instead, the treatise evidence, "standing alone," must discuss "generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Id. (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (medical treatise evidence must demonstrate connection between service incurrence and present injury or condition); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (generic statement about the possibility of a link between chest trauma and restrictive lung disease is too general and inconclusive); Mattern v. West, 12 Vet. App. 222, 227 (1999) (generally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise is too general and inconclusive (quoting Sacks, supra)). In this case, the medical articles submitted by the Veteran's representative only provide general information as to the possibility that a relationship exists between asthma and granulomas, PTSD, viral infections, and/or various environmental toxins. They are not accompanied by any corresponding clinical evidence specific to the Veteran, and do not suggest a generic relationship between the Veteran's asthma and granulomas, PTSD, viral infections, and/or various environmental toxins with a degree of certainty such that, under the facts of this specific case, reflects plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. As such, the Board finds this information to not be relevant as to the matter for consideration and, therefore, is not probative to this case. Wallin, supra; Sacks, supra. The Board has also considered the Veteran's assertions that his asthma is related to his military or a service-connected disability; however, such determination is a complex medical matter requiring training and experience which he does not possess. In this regard, the Veteran is not shown to have any medical training that would qualify him to provide an opinion regarding the onset or etiology of asthma. Here, the question regarding the onset, development, and/or etiology of asthma involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the etiology of asthma, such falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran's opinion as to the onset and etiology of his asthma is not competent evidence and, consequently, is afforded no probative weight. The Board further notes that in recent submissions the Veteran's representative appears to allege that the Veteran's asthma is related to exposure to environmental toxins while stationed at Fort Sheridan, Illinois; however, he has not provided any evidence beyond generalized statements and treatise articles suggesting that the Veteran's asthma is, in fact, related to such exposures. Consequently, the Board finds that VA's duty to obtain an opinion on such matter is not triggered. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Based on the foregoing, the Board finds that asthma is not shown to be causally or etiologically related to any disease, injury, or incident during service, to include exposure to herbicide agents, and is not caused or aggravated by a service-connected disability. Consequently, service connection for such disorder is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for asthma is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs