Citation Nr: 20002445 Decision Date: 01/10/20 Archive Date: 01/10/20 DOCKET NO. 14-42 383 DATE: January 10, 2020 ORDER Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD) and asthma is denied. FINDINGS OF FACT 1. A pre-service/training respiratory disability was unequivocally established. 2. The preponderance of the available evidence does not demonstrate that there was an unequivocal worsening of the pre-existing disability during the Veteran’s military service or Reserve training. CONCLUSION OF LAW The criteria for service connection of a respiratory disability, to include COPD and asthma have not been met. 38 U.S.C. §§ 101, 106, 1110, 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 2006 to June 2007 and from September 2007 to October 2008 with subsequent Reserve service, to include active duty training (ADT) with one period reported to be in August 2011. In June 2018, the Board of Veterans’ Appeals (Board) remanded the Veteran’s appeal for additional evidentiary development. It has since been returned to the Board for further consideration. Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD) and asthma The Veteran seeks entitlement to service connection for a respiratory disability that pre-existed his military service. The Veteran contends that his pre-existing respiratory disabilities were aggravated beyond normal progression during a two-week drill in the forest where he was exposed to environmental hazards in August 2011 for ADT. Generally, service connection may be granted for a disability arising from disease or injury incurred in or aggravated by active service or ADT. 38 U.S.C. § 101, 106, 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for a disability requires evidence of: (1) The existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306. Active military service includes any period of ADT during which the individual concerned was disabled or an injury incurred or aggravated in line of duty. 38 U.S.C. § 106; 38 C.F.R. § 3.6 (a). The Veteran’s respiratory disabilities have shown to have pre-existed service, specifically pre-existing the claimed in-service occurrence that the Veteran asserts aggravated his respiratory disabilities. Thus, there is clear and unmistakable evidence of a disability that pre-existed the Veteran’s military service and ADT. The remaining question is whether the Veteran’s pre-existing disability was aggravated during his military service or ADT. Regarding in-service aggravation, the Veteran’s service treatment records (STRs) show in January 2007, the Veteran complained of shortness of breath and started using an inhaler for wheezing. Pneumonia was diagnosed. Subsequent records do not reveal continued treatment for any respiratory disorder. The Veteran was deployed in 2008 and was exposed to burn pits. The Board notes that the Veteran’s post-deployment health assessments are absent complaints of any health concerns, including any respiratory disabilities. A March 2009 VA medical treatment note indicates that the Veteran reported that he suffered from asthma as a child and his past medical history indicates that the Veteran reported that his right lung collapsed as a child without any signs or recurrent lung infections. At the March 2009 visit, the Veteran was diagnosed with bronchitis and chest film indicated COPD. In November 2012, the Veteran was afforded a VA examination. The November 2012 examiner noted the Veteran’s asthma diagnosis. The Veteran reported breathing issues that began while on active duty training in August 2011 for a two-week drill. The November 2012 examiner provided the rationale that the Veteran has been examined and evaluated by the pulmonary clinic since 2009, diagnosis by that clinic is asthma, not an undiagnosed illness, there is no clinical research to support rationale that exposures of Persian Gulf War (PGW) caused asthma. The November 2012 examiner further provided that with the Veteran’s symptoms beginning prior to his deployment, the Veteran’s respiratory disabilities were not then caused by exposures of deployment as the Veteran did not require extensive care after return from the deployment, he was able to work in physical jobs, with symptoms being aggravated more recently, and so the pre-existing respiratory disabilities, diagnosed as asthma was not aggravated beyond normal progression by deployment and exposure of PGW. There is also a Reserve department record indicating that the Veteran was seen in 2012 with complaints of recent onset of breathing problems he related to his civilian work in a forest. As previously mentioned, in June 2018, the Board remanded this issue for additional evidentiary development, finding that the November 2012 examiner failed to specifically address the Veteran’s June 2012 diagnosis of COPD or provide a rationale for the Veteran’s contention that his breathing issues were aggravated during his August ADT in the forest despite noting the Veteran’s contentions in that regard. Per the June 2018 Board remand, the Veteran was afforded a VA examination in March 2019. The Mach 2019 examiner confirmed the Veteran’s diagnoses of asthma and COPD. The March 2019 examiner provided an opinion for both direct service connection and aggravation of a pre-existing disability. As for direct service connection, the March 2019 examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The March 2019 examiner provided the rationale that the Veteran denied being exposed to smoke or other known pollutants during his brief active duty period while drilling in the forest, noting that the Veteran believes that his condition was caused by exposure to burn pits during his deployments to Southwest Asia and noting that the Veteran’s respiratory disabilities pre-existed this claimed in-service occurrence. As for aggravation, the March 2019 examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness. The March 2019 examiner provided the rationale that a review of medical literature reveals that the clinical course of COPD can be characterized as one of slow progression and relative stability punctuated by episodic exacerbations occurring, on average, a little more than once per year. Exacerbations are generally described as a worsening of previously stable disease characterized by increased dyspnea, wheeze, cough and sputum volume, tenacity, and purulence, with variable degrees of water retention and with worsening gas exchange and ventilation-perfusion relationships, most exacerbations are caused by infections. The March 2019 examiner further provided that the Veteran has symptoms consistent with an acute exacerbation of his COPD, a review of available medical records did not reveal any healthcare visits related to the Veteran’s complaints that would indicate that the Veteran’s symptoms are chronic. The Board has considered the doctrine of reasonable doubt; however, the preponderance of the evidence is against the claim. 38 C.F.R. § 3.102. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Frazier, Associate Attorney The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.