Citation Nr: A21016749 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 190717-25694 DATE: October 14, 2021 ORDER Entitlement to service connection for asthma is granted. Entitlement to service connection for a skin condition is granted. FINDING OF FACT It is just as likely as not the Veteran's asthma and skin condition were caused or aggravated by his exposure to toxic burn pits during his deployment. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for his entitlement to service connection for his asthma and skin condition. 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 U. S. Air Force from September 2001 to September 2005. This appeal to the Board of Veterans' Appeals (Board) is from a July 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). On his July 2019 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement (NOD)), the Veteran elected the hearing docket, and he since had his hearing in June 2021 before the undersigned Veterans Law Judge. Therefore, in deciding this appeal, the Board may only consider the evidence of record at the time of the RO (i.e., Agency of Original Jurisdiction (AOJ)) decision that he has appealed and any additional evidence he submitted during his hearing or within 90 days following his hearing. See 38 C.F.R. § 20.302(a). 1. Entitlement to service connection for asthma 2. Entitlement to service connection for a skin condition Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See, e.g., Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent which depends on whether the condition being claimed is simple or, instead, complex. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The RO (AOJ) already has determined that new and relevant evidence has been received, so the Board is bound by this finding and consequently may proceed immediately to adjudicating these claims on their underlying merits rather than making this initial determination. The RO (AOJ) also determined the Veteran has current diagnoses of asthma and a skin condition namely, chronic urticaria vasculitis, as well as a history of seasonal allergies during his service, so the Board also is bound by these additional concessions. Thus, if there also is the required correlation ("nexus") between these current diagnoses and the alleged activity and allergies in service, service connection must be granted. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). The Veteran contends that his asthma and skin condition are the result of exposure to burn pits while deployed. During his hearing before this Board, he credibly testified about his exposure to burn pits that were used to dispose of trash while he was deployed, so the only remaining question is whether his currently diagnosed disabilities were caused by that exposure. In support of his claim the Veteran submitted an April 2013 statement from his treating allergist, Dr. Anthony Szema, MD. Dr. Szema diagnosed the Veteran with new onset asthma and urticaria and opined that these conditions were more likely than not the direct result of exposure to burn pits while the Veteran was in service. There is no "treating physician rule" requiring the Board to give deference to this physician's opinion. Both the Federal Circuit Court and Veterans Court (CAVC) have specifically declined to adopt a "treating physician rule" that would give preference to statements from a treating physician. See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Guerrieri v. Brown, 4 Vet. App. 467 (1993). But that said, it is significant this physician is familiar with the Veteran's relevant medical and other history including regarding what occurred during his time in the military and, specifically, while deployed. The Board resultantly finds Dr. Szema's opinion highly probative and affords it a lot of weight especially since he is considered one of the leading experts on the effects of exposure to burn pits and, to this end, has published multiple papers on the subject and testified before the U. S. Senate Committee on Veterans' Affairs on this very subject. The Board realizes there also are contrary medical opinions of the December 2016 and September 2021 VA examiners who conversely opined against the claims concluding instead that the Veteran's conditions were less likely than not caused by his service. However, these opinions are no more probative or persuasive than Dr. Szema's opinion contrarily supporting the claims, and in this circumstance this reasonable doubt is resolved in the Veteran's favor and the claims granted rather than denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) ("a [V]eteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."); see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). Instead, this need only be an as likely as not proposition. Thus, these claims for service connection for asthma and a skin condition are granted. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Baronofsky 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.