Citation Nr: 21001702 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 14-01 902 DATE: January 11, 2021 ORDER Entitlement to service connection for asthma is denied. REMANDED Entitlement to service connection for migraine headaches is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s asthma began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for asthma are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1977 to August 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of September 2010 and May 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2017 and August 2018, the Board remanded the Veteran’s claim for additional development. The case is once again before the Board. Entitlement to service connection for asthma is denied. Direct service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303. Starting with the first element (a current disability), the Board finds it met. At an August 2013 Pulmonary Consult, the Veteran was diagnosed with cough variant asthma. Since then, the Veteran’s VA healthcare providers have consistently diagnosed her with asthma, including during the appeal period. Moving on to the second element (an in-service incurrence of a disease or injury), the Veteran contends that she was exposed to environmental hazards including acetone, asbestos, mercury, and silica dust, working as a dental laboratory specialist. Consistent with that contention, the Veteran’s service records show her military occupational specialty as a dental laboratory specialist. Her duties included fabricating custom trays, study models, baseplate, and occlusion rims, preparing flasks for the elimination of wax, and performing laboratory procedures as required. In November 1984, the Veteran completed a medical questionnaire, which shows that she was potentially exposed to asbestos and mercury monomer. Later, at an August 2013 Pulmonary Consult, the Veteran’s VA doctor noted a history of work exposure from her dental office days. Other VA treatment records are similar. The Veteran’s contention is also consistent with the circumstances, conditions, or hardships of her service. 38 U.S.C. § 1154. Although the RO made no formal finding of exposure, the Board will assume that this element is met for purposes of this appeal. All that remains is whether the Veteran’s asthma is related to her in-service exposure. During service, the Veteran underwent a respiratory physical examination as part of the Asbestos Medical Surveillance Program. There, she denied having a cough, phlegm, wheezing, or shortness of breath on the questionnaire, and the military medical examiner found no abnormalities during the physical, which included a pulmonary function test (PFT). Roughly five-and-a-half years later, she again denied chronic cough, shortness of breath, and asthma at her quadrennial examination with the reserves. The Veteran’s other service treatment records are likewise silent for any complaints of or treatment for asthma. In her July 2015 Notice of Disagreement, the Veteran admits as much, stating that she did not experience asthma-related symptoms during service. Instead, she contends that her exposure-related symptoms did not appear until “year[s] later.” While the Veteran is competent to report experienced symptoms such as coughing, wheezing, and the like, she is not qualified to determine her asthma’s etiology because, in this case, the issue is medically complex, requiring specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2). To help address whether the Veteran’s post-service asthma symptoms are related to her service, VA scheduled the Veteran for an examination in October 2019. The Board finds the resulting examination adequate for decision-making purposes: the examiner reviewed the Veteran’s claims file, the relevant medical literature, contained clear conclusions with supporting data, and a reasoned medical explanation connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). At the examination, the examiner rendered a negative nexus opinion, relying on (1) the Veteran’s November 1984 respiratory examination, (2) a November 2010 Pulmonary Consult, and (3) other risk factors. As noted, the Veteran’s in-service November 1984 respiratory examination showed normal findings. Next, the examiner pointed to a November 2010 Pulmonary Consult, which acknowledged the Veteran’s potential occupational exposure but noted that a chest X-ray in 2008 was clear. Finally, the examiner found the Veteran’s other risk factors clinically significant. Among the risk factors for asthma is smoking, which the Veteran did for six years, including during service. After she quit, she continued to be exposed to secondhand smoke. See also a March 2013 VA treatment note (documenting secondhand smoke exposure from husband.) The examiner also noted that the Veteran worked as a forklift driver for sixteen years in a paper mill, where she might have also been exposed to wood dust, asbestos, chlorine, and sulfites or sulfates. Comparatively, this was much longer than her eight-to-nine years as a dental laboratory specialist. Putting it all together, the examiner concluded that the Veteran’s asthma is less likely than not related to her service. The Veteran disagrees. In support of her claim, she submitted several medical articles showing that methyl methacrylate exposure may cause asthma. The Board finds that these articles have limited probative value. First, the examiner considered the Veteran’s contention that environmental hazards (asbestos, acetone, mercury, and silica dust) caused her asthma, reviewed the medical literature, and concluded otherwise. Second, unlike the examiner’s opinion, the medical articles are general and do not consider the Veteran’s condition or individual circumstances, including any risk factors that may have contributed to her asthma. See Bailey v. O’Rourke, 30 Vet. App. 54, 60 (2018). Given that, the Board affords more probative value to the October 2019 VA examination and as a result, finds the Veteran’s asthma unrelated to her service. Accordingly, the Board finds the criteria for service connection for asthma not met. REASONS FOR REMAND 1. Entitlement to service connection for migraine headaches is remanded. Generally, a veteran is presumed sound upon entry into service, except as to disorders noted at the time. 38 U.S.C. § 1111, 1132. This is known as the presumption of soundness. To rebut the presumption, VA must show by clear and unmistakable evidence that (1) the veteran’s disability existed before her military service, and (2) that the pre-existing disability was not aggravated during service. Wagner v. Principi, 370 F.3d 1089, 1097 (Fed. Cir. 2004). The clear-and-unmistakable evidence standard is an “onerous one.” Horn v. Shinseki, 25 Vet. App. 231, 234-235 (2012). To qualify as “clear and unmistakable,” evidence “cannot be misinterpreted and misunderstood, i.e., it [must be] undebatable.” Vanerson v. West, 12 Vet. App. 254, 258 (1999). In other words, the evidence is not clear and unmistakable if the conclusion is debatable. See id. In August 2018, the Board remanded the Veteran’s case to obtain an addendum medical opinion. As relevant here, it asked the examiner to opine whether the evidence clearly and unmistakably shows that the Veteran’s pre-existing disability was not aggravated (i.e., permanently worsened beyond the natural course of the disease) during service. In response, the examiner provided two answers: (1) the Veteran’s in-service migraine headaches “may be” part of the natural progression of the disability, and (2) the Veteran’s in-service migraine headaches were “less likely as not” aggravated by her service beyond its natural progression. The examiner’s first answer is speculative. See Polovick v. Nicholson, 23 Vet. App. 48, 54 (2009) (holding a doctor’s medical opinion that veteran’s brain tumor “may well be” connected to tactical herbicide exposure speculative). And the second uses the wrong evidentiary standard. The “less likely as not” standard (less than 50 percent probability) is far from the kind of unconditional evidence required to satisfy the clear-and-unmistakable evidence standard. See Vanerson, 12 Vet. App. at 263 (Nebeker, C.J., concurring in part and dissenting in part) (“[O]nly an inference that is iron clad and copper riveted can be ‘unmistakable.’”). As such, remand is required for an addendum opinion. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. Because a decision on the Veteran’s migraine headache claim could significantly impact a decision on her TDIU claim, the issues are inextricably intertwined and a remand of both is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Finally, as the case is being remanded for additional development, any outstanding VA treatment records should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (per curiam). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the claims file. 2. Then, arrange for an appropriate health care provider to review the Veteran’s claims file and provide an opinion as to: (a.) whether the Veteran’s migraine headaches clearly and unmistakably existed prior to the Veteran’s active duty service. A complete rationale for this opinion must be provided. (b.) If the examiner finds that the Veteran’s migraine headaches clearly and unmistakably existed prior to service, state whether it is clear and unmistakable that the pre-existing disability was NOT aggravated (i.e., permanently worsened beyond the natural course of the disease) during service. The examiner must consider (i) the Veteran’s contention that certain environmental hazards in her dental laboratory caused her headaches, (ii) her August 2014 supporting medical articles, and (iii) her October 2017 contention that the headaches she experienced during service increased in severity. A complete rationale for this opinion must be provided. (c.) If the Veteran’s migraine headaches did not clearly and unmistakably exist prior to service, the examiner must provide an opinion addressing whether it is at least as likely as not (50 percent probability or not) that the Veteran’s migraines had their clinical onset during service or are due to an event or incident of the Veteran’s period of active service. 3. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and her representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Canedy, Associate Counsel 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.