Citation Nr: 20052298 Decision Date: 08/06/20 Archive Date: 08/06/20 DOCKET NO. 14-32 038 DATE: August 6, 2020 ORDER Entitlement to service connection for respiratory disability is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his respiratory disability is at least as likely as not related to his active duty service. CONCLUSION OF LAW The criteria for service connection for a respiratory disability have been satisfied. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 2003 to December 2006, April 2010 to December 2010, and January 2011 to September 2012, to include service in Iraq and Afghanistan. He has additional period of active duty for training from September 2001 to April 2002. This matter comes before the Board of Veterans Appeals (Board) on appeal from a June 2013 rating decision issued by a Department of Veteran Affairs (VA) Regional Office (RO). In April 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. In April 2018, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) for additional development. The issue of service connection for a gastrointestinal disability was also remanded by the Board. In a February 2020 rating decision, the issue was granted in full and it is no longer on appeal. The Veteran contends that his respiratory disability, manifested by nasal and chest congestion, was caused by exposure to burn pits. See April 2016 Hearing Tr. at 5. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran has a current respiratory disability. For example, at his November 2019 VA examination he was diagnosed with asthma. Thus, the remaining question is whether the current respiratory disability is related to service. Service treatment records show that in an October 2006 post deployment health assessment after returning from Iraq, the Veteran reported often being exposed to the burning of trash and feces. Likewise, in a November 2007 and January 2012 post deployment health assessments after returning from Iraq and Afghanistan, respectively, the Veteran reported being worried about exposure to the burning of trash and feces. In a March 2011 service treatment record, the Veteran complained of chest congestion. Post-service, the Veteran was initially diagnosed with asthma in July 2014 during a VA treatment. During a December 2015 VA treatment for deployment related respiratory disease, a VA physician reviewed the Veteran’s family history and noted no childhood respiratory illnesses and chronic lung disease, although the Veteran had occasional allergies. The physician went on to say that during the Veteran’s deployments to Iraq and Afghanistan he was exposed to burn pits. After assessing the Veteran, the physician noted that the Veteran presented for evaluation of nasal congestion, shortness of breath, and chest tightness that had onset during his first deployment to Iraq. The physician further noted that the Veteran continued to have persistent respiratory symptoms during his subsequent deployment to Iraq and Afghanistan. Given his extensive exposure to complex inhalational hazards, such as burn pit emissions on a daily basis, the physician noted the concern for diseases such as asthma. In a June 2016 VA treatment note, it was indicated that the Veteran’s current asthma was not present before his deployment, and may have been due to his history of exposure to burn pits. The Veteran presented for a VA examination in June 2014, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner opined that it is less likely than not that he has a respiratory condition related to toxic exposure while in Southwest Asia. In support of this conclusion, the examiner explained that the Veteran has a clear and specific diagnosis of subjective shortness of breath. The etiology is chronic daily inhalation of marijuana and lack of exercise. The Veteran presented for another VA examination in November 2019, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of this conclusion, the examiner explained that it is less likely than not that the Veteran’s diagnosis of asthma first found in July 2014 is related to exposure to burn pits. The examiner indicated not finding medical literature to support the cause of asthma to exposure to burn pits. Asthma has a clear diagnosis with partially explained etiology evidenced by the medical literature. The examiner cited articles about how genetics play an important role in causing asthma, and that if your mom or dad had asthma, you are more likely to have asthma too. Further, the examiner noted that certain allergic conditions are linked to people who get asthma. The examiner concluded finding no specific exposure event from treatment records and a link between the Veteran’s deployment and his asthma. Based on the foregoing, the Board finds that the evidence is at least in equipoise as to the question of whether the Veteran’s respiratory disorder, diagnosed as asthma, is related to his military service. First, the Board notes the Veteran’s statement that he was exposed to burn pits while in service that caused his respiratory disability. The Veteran served as a field medic and his medical training and experience makes him competent to describe his symptoms through the use of his senses and to give evidence about what he has experienced. Notably, his assertions are substantiated by all of his post deployment health assessment where he repeatedly reported being exposed to burn pits. Second, the Board finds the statements by the VA physician in December 2015 as supportive of the Veteran’s claim. These statements are highly probative as they were made by a medical professional who reviewed the Veteran’s history and conducted an evaluation of the Veteran. Of note, the physician essentially concluded that the Veteran’s current respiratory disability was due to his exposure to burn pits while deployed. Lastly, the Board acknowledges the VA examination findings, but finds the VA physician’s statements to be at least as probative as it was made with consideration of the Veteran’s in-service reports. The June 2014 examination findings are given less weight as the Veteran has a current respiratory diagnosis that is inconsistent with the findings of the examination. The November 2019 examination is given less weight as the examiner’s rationale was inadequate due to its generalized nature and not being specific to the Veteran’s case. For instance, the examiner repeatedly mentioned genetics as a cause of asthma but did not indicate that the Veteran had a family history of asthma. Notably, the VA physician indicated there was no familial history regarding respiratory conditions. Given the above, after resolving all doubt in favor of the Veteran, the Board finds that service connection for respiratory disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mathew 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.