Citation Nr: 21005018 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 14-23 361 DATE: January 28, 2021 ORDER Service connection for a respiratory disorder, to include asthma, as a result of herbicide agent exposure and/or asbestos exposure, is denied. FINDINGS OF FACT 1. A respiratory disorder, to include asthma, did not clearly and unmistakably pre-exist service. 2. The Veteran served in the Republic of Vietnam and is therefore, presumed to have been exposed to herbicide agents. 3. A respiratory disorder, to include asthma did not manifest during active service or within one year of service, and the preponderance of the evidence fails to establish that it is etiologically related to service, including due to exposure to herbicide agents or asbestos. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder, to include asthma, as a result of herbicide agent exposure and/or asbestos exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from September 1963 to September 1967. The Veteran testified at a hearing before the Board of Veterans’ Appeals (Board) in December 2015. A transcript is of record. In January 2018, the Veteran was notified that the Veterans Law Judge (VLJ) who had conducted his December 2015 hearing was no longer employed by the Board; he was advised of his right to request another hearing. Although the Veteran initially selected to have another in-person hearing at this local VA Regional Office (RO), he later withdrew this request. See March 2018 Correspondence from Private Attorney. In September 2018, the Board, in pertinent part, reopened the Veteran’s claim for entitlement to service connection for a respiratory disorder and remanded the underlying service connection claim for further development. Also, as an initial matter, the Board acknowledges that the Veteran has a separate Legacy appeal pending for the issue of entitlement to service connection for left and right lower extremity neuropathy. In the Veteran’s substantive appeal, he requested a hearing before the Board. See VA Form 9. Although he has since withdrawn the hearing request, his representative has requested 90 days to submit additional argument and evidence in the matter. See November 2020 Correspondence. The 90 days period has not yet expired; therefore, this matter will be addressed in a later, separate decision. The Veteran also has separate appeals pending before the Board under the Appeals Modernization Act (AMA). As this decision addresses a Legacy appeal, the AMA appeals will also be addressed separately in a later decision. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Only conditions recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Prior to the application of the presumption of soundness, there must be evidence that a disease or injury - that was not noted upon entrance into service - actually manifested or was incurred in service. Gilbert v. Shinseki, 26 Vet. App. 48, 52 (2013). The presumption of soundness shields the Veteran from a finding that the disease or injury preexisted (and therefore was not incurred in) service by requiring VA to prove by clear and unmistakable evidence that a disease or injury manifesting in service both preexisted service and was not aggravated by service. Id. at 55. The Federal Circuit has distinguished between those cases in which a preexisting condition is noted upon entry into service, and cases in which the preexistence of the condition must otherwise be established. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); see also 38 U.S.C. § 1132 (presumption of sound condition). In a case where there is no preexisting condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (a) the condition pre-existed service and (b) the pre-existing condition was not aggravated by service. Wagner, 370 F.3d at 1345; Horn, 25 Vet. App. at 234; see also 38 U.S.C. § 1132. “[I]f a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder.” Wagner, 370 F.3d at 1096; see also 38 U.S.C. § 1153; 38 C.F.R. § 3.306. To be “noted” within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304(b); see also 38 U.S.C. § 1132; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). History of pre-service existence of a disease does not constitute a notation of such condition. Id. at 240. However, the disease need not be symptomatic at the time of the evaluation, so long as a diagnosis is provided. See Verdon v. Brown, 8 Vet. App. 529, 530 (1996). If the claimed condition was not “noted” within the meaning of the presumption of soundness statute, the government must show a lack of aggravation by establishing by clear and unmistakable evidence “that there was no increase in disability during service or that any ‘increase in disability [was] due to the natural progress of the’ preexisting condition.” Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof must be met by “affirmative evidence” demonstrating that there was no aggravation. The burden is not met by finding “that the record contains insufficient evidence of aggravation.” Horn, 25 Vet. App. at 236-37. “Clear and unmistakable evidence” is an “onerous” evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be “undebatable.” Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (noting that clear and undebatable means that the evidence cannot be misinterpreted or misunderstood). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to service connection for a respiratory disorder, to include asthma The Veteran seeks service connection for a respiratory disorder, to include asthma, based on his exposures to herbicide agents and asbestos in service. The Board notes at the outset that a respiratory disorder, to include asthma, was not found on his May 1963 Report of Medical Examination, prior to his active duty service. As such, per the applicable status and regulation, a respiratory disorder was not noted at entry. Thus, an analysis of the presumption of aggravation under 38 U.S.C. § 1153 is not required. Instead, the Board must first analyze the Veteran’s claims by way of the presumption of soundness under 38 U.S.C. § 1111 and determine whether there is clear and unmistakable evidence that the injury or disease existed prior to service. Although there was no indication of a respiratory disorder on the May 1963 Report of Medical Examination, the Veteran did self-report having whooping cough, asthma (childhood) on his Report of Medical History at the time of entrance into service that same month. See Service treatment records (STRs). Despite the Veteran’s self-report of whopping cough and asthma, the October 2020 VA examiner opined that the Veteran’s respiratory condition, including asthma, did not exist prior to service. In support of that finding, the examiner highlighted the fact that the medical entrance examination completed in May 1963 reported a normal chest and lung examination. There were also no diagnoses or defects listed under the applicable section for respiratory defects or diagnoses, including asthma. This finding was accompanied by a notation by the medical examiner that the Veteran was physically qualified for original enlistment into the military and immediate transfer into active duty for training. The examiner pointed out that had the Veteran, in fact, had asthma prior to entering the military, he would have been automatically disqualified and barred from entering the military, as asthma is a medical condition that automatically disqualifies a person from entering the military and there is no waiver available for asthma. Considering these facts, the October 2020 VA examiner concluded that the service entrance examination and the clear and well-known fact that no one can enter the military if they have asthma was definitive proof that the Veteran did not have asthma prior to entering the military. The October 2020 VA examiner further noted that during service, the Veteran was not seen, evaluated or treated for any specific respiratory condition that was either suggestive of or diagnosed as asthma. The Veteran completed his separation examination in September 1967, wherein he was again found to have a normal chest/lung examination with no diagnoses or defects listed in that section of the report. While the Veteran did self-report having whooping cough, pain in the chest ans asthma on his May 1963 Report of Medical History, the examiner indicated this report was easily explained. The Veteran had whopping cough or pertussis as a child; this was an acute infectious disease characterized by cough, congestion, fevers, chest pains from the severe unrelenting cough and often with shortness of breath and wheezing like asthma. This resolved and the Veteran had no further episodes and the pre-military health record failed to show an official diagnosis of asthma prior to service. The examiner observed that this information combined with the normal service entrance examination report, with no asthma or other chronic lung diseases noted, further supported that the current asthma was not pre-existing. Since the examiner did not find that the asthma condition existed prior to service, no aggravation opinion was provided. See October 2020 VA Medical Opinion. Giving the October 2020 VA examiner’s thorough and well-supported opinion probative weight, the Board finds there is not clear and unmistakable evidence that the Veteran had a respiratory disorder, to include asthma, that pre-existed service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Having found that the Veteran was sound at the time of his enlistment into service, the pertinent question becomes whether his current asthma had its onset in or is otherwise related to his military service, to include as a result of his exposure to herbicide agents and/or pesticides in service. The Veteran’s STRs, including his May 1963 service separation Report of Medical Examination, are silent for any complaints, findings, treatment, or diagnoses for asthma or any other respiratory disorder. His postservice treatment records also show that treatment for asthma began after service. Based on this information, there is no evidence that his current respiratory condition, including asthma, had its onset in service. Consequently, service connection for this disability on the basis that it became manifest in service is not warranted. See 38 C.F.R. § 3.303. Instead, it is largely the Veteran’s contention that his respiratory condition, to include asthma, was caused by exposure to herbicide agents and/or other pesticides during his military service in Vietnam or from exposure to asbestos on Naval ships. VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). A Veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a). The Veteran’s service personnel records show he served in the Republic of Vietnam and received, amongst other accolades, the Combat Action Ribbon for his service. Thus, he is recognized as having been exposed to herbicide agents in service. Respiratory disorders, such as asthma, however, are not presumed to be related to such exposure. The only respiratory disorder that is presumed to be related to herbicide agents exposure is respiratory cancer (to include of the lung, bronchus, larynx, or trachea), which the Veteran is not shown or alleged to have. See 38 C.F.R. § 3.309(e). Nevertheless, a medical opinion has been obtained to address whether the Veteran has a respiratory disorder that is directly related to his exposure to herbicide agents and it is discussed in greater detail below. As for the Veteran’s claim that he was also exposed to pesticides and asbestos in service, he was sent a letter in August 2020 requesting general information in support of this contention of pesticide exposure. The Veteran did not respond to VA’s request for additional information; therefore, an assessment was not able to be made as to his exposure to pesticides in service. See August 2020 Correspondence. Nevertheless, a VA medical opinion was obtained to address the likelihood that the Veteran has a respiratory disorder related to pesticide exposure and asbestos exposure. Specifically, in October 2020, a VA examiner opined that the Veteran’s claimed disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the only respiratory disorder currently present was asthma and, after a detailed review of the claims file, and interview and examination of the Veteran, he was unable to find a definite, clear objective nexus between the asthma and his military service. The examiner noted that the Veteran never had or reported any respiratory complaints/issues in service, and that he was likewise never seen by any medical personnel for respiratory issues in service. As for the Veteran’s claimed asbestos exposure in service, the examiner conceded it was probable that he was exposed to asbestos given the time he spent aboard naval vessels, but indicated it was impossible to quantify the level of exposure. Despite the inability to determine how much asbestos the Veteran was exposed to, the examiner nevertheless opined that it was less likely than not that his asthma was related to that exposure and explained that there was “no component of the Veteran’s asthma that suggest[ed] asbestos related etiology or exposure.” The examiner noted that he had reviewed the medical records and diagnostic studies done over the years since the Veteran’s separation from service and there was never any suspicion of asbestosis. The examiner pointed out that spirometry studies had been normal the vast majority of the time and that the Veteran had a chest x-ray in 2017 that was compared to a chest x-ray done in 2009, and both were negative. The examiner emphasized that there were no diagnostic findings to suggest asbestosis. As for the Veteran’s recognized exposure to herbicide agents specifically, or pesticides generally, the examiner also opined that it was less likely than not that his asthma was related to such exposures. The examiner explained that there was nothing in the medical records to suggest herbicide agents exposure as an underlying etiology or cause. Instead, there were several other factors that were more likely the etiology. First, it was noted that the Veteran had a history of tobacco use. Although the Veteran stopped smoking in 1984, he admitted to smoking heavily prior to that. The Veteran started smoking at age 17 and smoked 2 packs per day for 36 years. The examiner pointed out that this history would be the more likely cause for his respiratory condition as compared to herbicide agents. Second, the examiner noted that a review of the Veteran’s medical records showed he had a history of spirometry studies that were almost always normal when checked using pulmonary function tests. The diagnosis of asthma was prominent, but upon closer review, it was often referred to as “extrinsic” asthma, which is asthma that is affected or exacerbated by “extrinsic” or outside exposures, most commonly environmental allergens. The examiner then noted that the Veteran had a known diagnosis of rhinitis and stated that asthma historically appeared to have a seasonal component as far as severity, which also supported the diagnosis of extrinsic asthma. In support of that opinion, the examiner noted that in 2012, a pulmonologist had basically stated that he felt the asthma was allergic in its underlying etiology. See October 2020 VA medical opinion. In addition to the October 2020 VA medical examination and opinion, the record includes an earlier statement from Dr. J.W., the Veteran’s physician. Dr. J.W. reported the Veteran was being treated for extrinsic asthma and that he was on a regimen of inhalers which he used up to four time daily as needed. He also described the Veteran as having moderately severe dyspnea that was improved with his regimen of medication. While Dr. J.W. concluded the Veteran was disabled from gainful employment, he did not provide a medical opinion regarding the etiology of the Veteran’s asthma. See December 2012 Medical Statement. After reviewing the claims file, including medical opinions and lay statements, the Board finds the October 2020 VA medical examination and opinion to be the most probative because it contains a thorough explanation for the rationale of the opinion provided and is based on a physical examination and interview of the Veteran with careful review of the claims file. Significantly, the examiner provided strong evidence in favor of a more likely etiology for the Veteran’s asthma, as opposed to service. As outlined above, it was the examiner’s opinion that the Veteran’s history of smoking increased his likelihood of having asthma. He also noted that there was evidence to suggest the Veteran’s asthma was seasonal/ environmental in nature. The examiner’s opinion regarding the environmental nature of the Veteran’s asthma is supported by the December 2012 private medical statement from Dr. J.W., who also recommended that the Veteran avoid exposures to environmental irritants “such as dust, extremes of hot and cold, fumes, etc.” To the extent the Veteran believes he has a respiratory condition, to include asthma, which was caused by his military service, to include exposure to herbicide agents, pesticides, and/or asbestos, he is not competent to provide a nexus opinion regarding this issue. Whether a current disability is related to herbicide agents, pesticides, or asbestos involves medical questions and is not capable of resolution through lay observation. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The Board concludes that the preponderance of the evidence is against a finding that the Veteran’s respiratory conditions, to include asthma, are in any way related to his service. Accordingly, the claim must be denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Churchwell, 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.