Citation Nr: 21001741 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 15-43 266 DATE: January 11, 2021 ORDER Service connection for asthma is granted. Service connection for right foot hallux valgus is denied. Service connection for left foot hallux valgus is denied. FINDINGS OF FACT 1. With resolution of the doubt in her favor, the Veteran’s asthma was caused by service. 2. The Veteran’s right foot hallux valgus was not caused by service. 3. The Veteran’s left foot hallux valgus was not caused by service. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to service connection for asthma have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(d) (2019). 2. The criteria to establish entitlement to service connection for right foot hallux valgus have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(d) (2019). 3. The criteria to establish entitlement to service connection for left foot hallux valgus have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(d) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from May 1980 to May 1987 and in the U.S. Army Reserve from March 2003 to May 2003 and January 2004 to June 2005, to include service in Southwest Asia. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision of the Seattle, Washington Regional Office (RO). In October 2018, the Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) sitting at the Houston, Texas RO. During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. In January 2020, the Board remanded the claims to the RO for additional action. Although there was substantial compliance with the Board’s remand directives concerning the claims of service connection for right and left foot hallux valgus, there was no substantial compliance for the claim of service connection for asthma; however, as noted below, the Board will grant the claim. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). 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) (2019). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Asthma The Veteran contends that her asthma was caused by exposure to fumes and environmental hazards during service in Southwest Asia. The claim will be granted. The Veteran’s report of separation of separation from the armed forces (DD Form 214) reflects that her duty specialty was Motor Transport Operator. Military personnel records (MPRs) reflect that the Veteran served in Southwest Asia and reported exposure to smoke from burning trash, vehicle exhaust fumes, sand and industrial pollution. The law mandates that due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a) (2012). With resolution of the doubt in her favor, as a Motor Transport Operator in Southwest Asia, the Veteran would have been exposed to fumes and environmental hazards. MPRs reflect that the Veteran served in Southwest Asia from January 2004 to January 2005. In her July 2005 post-deployment health assessment, the Veteran reported having developed trouble breathing during her service in Southwest Asia due to having been exposed to smoke from burning trash, vehicle exhaust fumes, sand and industrial pollution. The Veteran is competent to report experiencing her observable symptoms, such as trouble breathing. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (holding that a lay person is competent to report experiencing symptoms of trouble breathing during and after service). In the September 2010 VA examination, the Veteran reported experiencing shortness of breath and asthmatic attacks due to seasonal changes. The Veteran was diagnosed with asthma. No etiology opinion was provided. In a February 2011 service medical evaluation board proceeding, the Veteran was diagnosed with asthma and the medical examiners noted January 2005 as an approximate date of origin. In the June 2011 VA examination, the Veteran reported experiencing asthma since 2004. The examiner indicated that the Veteran did not have a diagnosis of asthma. An August 2011 VA chest radiograph revealed normal findings, specifically, clear lungs and no evidence of an acute process. An October 2011 VA treatment record reflects that the Veteran was prescribed Montelukast for asthma. In the October 2018 Board hearing, the Veteran testified to experiencing trouble breathing during service in Southwest Asia. In a May 2019 VA treatment record, it was noted that the Veteran had seasonal allergies and no history of asthma. A chest radiograph revealed normal findings. In the March 2020 VA examination, the Veteran was diagnosed with asthma. The examiner opined that the Veteran’s asthma was not caused by her service in Southwest Asia because the examiner was unable to locate medical records suggesting that her asthma was related to service in Southwest and the Veteran indicated that her asthma resulted from seasonal allergies. The VA medical opinion is inadequate, and therefore, of low probative value because the examiner did not consider the Veteran’s July 2005 post-deployment health assessment and February 2011 service medical evaluation board proceeding noting January 2005 as the approximate date of origin for the Veteran’s asthma. Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that a thorough and contemporaneous medical examination is one that considers the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one). The Board will grant the claim based on the benefit-of-the-doubt doctrine. In her July 2005 post-deployment health assessment, the Veteran reported having developed trouble breathing during her service in Southwest Asia. In a February 2011 service medical evaluation board proceeding, the Veteran was diagnosed with asthma and the medical examiners noted January 2005 as an approximate date of origin. As noted above, the March 2020 VA negative etiology opinion was of low probative value. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, service connection is warranted and the claim is granted. Right and left foot hallux valgus The Veteran contends that her right and left foot hallux valgus was caused by wearing combat boots during her first period of service. The claims will be denied. In the Veteran’s March 1985 service medical examination report, no foot abnormalities were noted. In the Veteran’s August 1986 service medical examination report, bilateral pes planus was noted but not hallux valgus. In her August 1986 service medical history report, the Veteran answered in the negative to the question of whether she then had, or once had foot trouble. The STRs are highly probative evidence because they were generated with the specific view of recording the events they describe. In this respect, they are akin to official records, which generally enjoy a high degree of probative value in the law. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision). A November 2007 VA bilateral foot radiograph revealed bilateral hallux valgus deformity, degenerative joint disease at the first metatarsophalangeal joint, lateral subluxation and no other acute abnormalities. A February 2009 private left foot radiograph revealed mild hallux valgus deformity. In a September 2010 VA examination that did not focus on the Veteran’s feet, a physical bilateral foot examination revealed bilateral hallux valgus. In a February 2011 service medical evaluation board proceeding, the Veteran was diagnosed with bilateral hallux valgus and the medical examiners noted September 2010 as the approximate date of origin. In a June 2011 private treatment record, the Veteran reported experiencing bilateral foot pain that began approximately three months prior. The Veteran indicated having undergone pressure from “shoe gear” and no bilateral foot trauma during service. A bilateral foot radiograph revealed contracture and deformity. A December 2016 VA bilateral foot radiograph revealed bilateral hallux valgus. The Veteran was diagnosed with bilateral foot hallux valgus. A March 2018 private treatment record reflects the Veteran’s diagnosis of right foot hallux valgus. In the October 2018 Board hearing, the Veteran attributed her bilateral foot hallux valgus to having worn combat boots during service. The Veteran is not competent, as a lay person, to provide a medical opinion as to the cause of her bilateral foot hallux valgus. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the March 2020 VA examination, the Veteran reported experiencing bilateral foot pain in 1982 and having been treated with foot inserts. The Veteran’s assertion as to having experienced bilateral foot pain in 1982 is not credible because the STRs are silent as to complaints or contemporaneous reports of foot pain and the Veteran denied ever experiencing foot pain in her service medical history report. See Curry v. Brown, 7 Vet. App. 59 (1994) (noting that contemporaneous evidence has greater probative value than the history as reported by the veteran and that earlier statements are generally more trustworthy than later ones). The Veteran was diagnosed with bilateral foot hallux valgus. The examiner opined that the Veteran’s bilateral foot hallux valgus was not caused by wearing combat boots during service due to an absence of medical records indicating such a relationship. (Continued on the next page)   A preponderance of the evidence is against a finding that the Veteran’s right and left foot hallux valgus was caused by service. In a February 2011 service medical evaluation board proceeding, the Veteran was diagnosed with bilateral foot hallux valgus and the medical examiners noted September 2010 as an approximate date of origin. The March 2020 VA examiner opined that the Veteran’s bilateral foot hallux valgus was not caused by service. Significantly, no competent medical provider has opined otherwise. Therefore, service connection is not warranted and the claims are denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Cohen, 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.