Citation Nr: 21073546 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 15-25 772 DATE: December 9, 2021 ORDER Entitlement to service connection for asthma is denied. FINDING OF FACT Currently diagnosed asthma did not manifest on active duty service or within the first post-service year, and is not otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for asthma have not been met. 38 U.S.C. §§ 1101, 1111, 1153, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306; 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran was a member of the United States Army Reserve from April 2008 to September 2011, with a period of initial active duty for training (ACDUTRA) from September 2008 to January 2009, plus additional periods of inactive duty for training (INACDUTRA). This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision of the agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA) denying entitlement to service connection for asthma. In April 2021, the Board remanded the issue for a second VA examination on the nature and etiology of the Veteran's asthma, specifically to address the Veteran's contention that exposure to tear gas in 2009 may have irritated her asthma. The claim is once again before the Board. Substantial compliance with the Board's prior remand orders is demonstrated. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran testified in November 2018 at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service connection is awarded for disability that is the result of a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). The term "active military, naval, or air service" includes (1) active duty, (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a); see Biggins v. Derwinski, 1 Vet. App. 474, 477-78. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability that are subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Competent lay evidence is any evidence not requiring that the person giving the evidence have specialized education, training, or experience. 38 C.F.R. § 3.159 (a)(2). When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Service Connection The Veteran has a current diagnosis of asthma, which establishes the existence of a present disability. The Veteran contends that exposure to tear gas during ACDUTRA in 2009 caused or aggravated her asthma condition. At her November 2018 hearing, the Veteran testified that she did not have asthma symptoms prior to enlistment. She testified that she began having asthma symptoms shortly after she reported to her duty station about a year after entering service, which would not have been a period of ACDUTRA. She testified that she sometimes had difficulty breathing during weekend drills, which would have been a period of INACDUTRA. The Veteran stated that she sought treatment through her civilian health insurance. In a June 2013 letter, the Veteran's private treating physician reported that she has been treating the Veteran since 2009 and that the Veteran was diagnosed with asthma in 2011. Private treatment records from the same provider indicate that in August 2011, the Veteran had an appointment for asthma follow up and treatment records show a medical history of asthma inhalers being prescribed in July 2011. In November 2011, the Veteran reported chest pains, cough, and chest tightness; she was prescribed cough medication to take with her previously prescribed inhalers for asthma. In December 2018, the treating physician provided a second letter reiterating that she has been treating the Veteran for asthma since July 2011 and continues to treat the Veteran for asthma. The doctor also opined that exposure to "the gas chamber whiling training in 2009" may have irritated or increased the Veteran's asthma symptoms. The doctor did provide further explanation on the etiology of the Veteran's asthma. In November 2019, the Veteran was afforded a VA examination for asthma. Pulmonary function testing confirmed that the Veteran has asthma. In June 2021, the Veteran was afforded another VA examination for asthma. The Veteran reported that she was unsure when she was first diagnosed with asthma. The Veteran reported having trouble breathing with an occasional wheeze. She currently uses inhalers, including a rescue inhaler after physical exertion or in humid weather. She reported daily use of her inhaler and weekly use of her rescue inhaler. Pulmonary function testing indicated mild air trapping, normal diffusion capacity, normal lung capacity, and normal spirometry with no significant response to bronchodilator. The examiner opined that because the Veteran was not diagnosed with asthma until two years after exposure to tear gas it is less likely than not that tear gas exposure caused, irritated, or aggravated Veteran's asthma. The Veteran's military personnel records show that her August 2007 medical examination prior to enlistment did not note any respiratory conditions. There are no records of complaints or symptoms related to a respiratory condition and no records of treatment for complaints or symptoms related to a respiratory condition in the Veteran's service treatment records (STRs). In November 2009, a medical report notes that the Veteran has functional limitations due to scoliosis; asthma is not noted on the report. A separation physical examination is not of record. The Veteran asserts there is a nexus between her currently diagnosed asthma and service. While a lay person is competent to testify about their symptoms, or to report what a doctor has told her, only a medical professional is competent to provide a diagnosis. As a lay person, the Veteran is not competent to render an opinion as to the etiology of her claimed asthma disability as she is a layperson lacking the necessary training and knowledge to do so. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Board acknowledges the June 2013 and December 2018 letters from the Veteran's treating physician, which provides the Veteran's history of asthma first diagnosed in July 2011. The physician has been treating the Veteran since 2009, and first diagnosed the Veteran with asthma in July 2011. The physician opines that expose to tear gas could have caused or aggravated the Veteran's asthma. However, the physician does not explain her rationale or the etiology of the Veteran's asthma, specifically the two-year gap in time between exposure to tear gas and diagnosis of asthma. Thus, the Board finds more probative the June 2021 examination that found the Veteran's asthma was not caused and was not aggravated by exposure to tear gas during basic training because the Veteran's asthma complaints started over a year after exposure and the Veteran's diagnosis was two years after exposure. The June 2021 VA examination is highly probative evidence as it relied on sufficient facts and data, provided a rationale for the opinion, and contained sound reasoning. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Hence, the probative evidence shows that the Veteran's asthma is not related to service. After a careful review of the record, the Board finds that the evidence does not support a determination that the Veteran's lung condition is etiologically related to her active-duty service. The Veteran was first diagnosed with asthma in 2011, over two years after being exposed to tear gas during basic training. The Veteran testified that she did not have asthma symptoms until approximately over a year after basic training. Therefore, entitlement to service connection for a lung condition is not warranted. In reaching this conclusion, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim for service connection for lung condition, to include bronchial asthma, the doctrine is not applicable. See 38 C.F.R. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lauren Barletta 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.