Citation Nr: 21074596 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-10 952 DATE: December 15, 2021 ORDER Service connection for asthma is denied. FINDING OF FACT The preponderance of the competent and probative evidence is against finding that the Veteran has, or has had at any time during the appeal, a current disability of asthma. 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 January 1986 to May 1986 and from September 2004 to October 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in April 2019, at which time the Board remanded the matters for further development. As the requested development has been substantially completed, no further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154 (a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). Service connection for asthma. The Veteran contends that he has an asthma disability that is due to service, to include environmental exposures such as sand and dust in service. After review of the competent and probative evidence, the Board finds the Veteran does not have a current diagnosis of asthma and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). Pertinent caselaw indicates that the current disability requirement is satisfied when a claimant "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim," McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or "when the record contains a recent diagnosis of disability prior to... filing a claim for benefits based on that disability," Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. An October 2016 VA examination noted the Veteran's report that he diagnosed with asthma during his active service in 2005. However, there was no record of the diagnosis. Additionally, the examiner noted that the first diagnosis of asthma was included in a primary care note in January 2014 with no mention of a diagnostic basis. The examiner opined that the Veteran does not have a current disability of asthma. Specifically, the examiner indicated that asthma is a diagnosable and medical understood condition, and the Veteran's pulmonary function testing has been either normal or unreliable for testing purposes. Moreover, his methacholine challenge of record was borderline and not diagnostic for asthma. The examiner further noted that the Veteran's unrelated chronic sinusitis and gastroesophageal reflux conditions could cause symptoms that mimic the symptoms of asthma. 10/24/2016, C&P Exam; 10/25/2016, C&P Exam (medical opinion). An April 2019 Board decision remanded the claim of service connection for asthma. The Board stated that the treatment records reflect an earlier diagnosis of asthma in 2008, rather than 2014, as stated by the October 2016 VA examiner. Additionally, the October 2016 VA examination did not consider the medical journal article submitted by the Veteran, nor whether the Veteran's asthma was at least as likely as not caused by environmental exposures in service. The Board directed the AOJ to obtain a VA medical opinion that identifies all of the Veteran's current respiratory conditions, to include the Veteran's reported chronic sinusitis, and provide opinions for each as to whether it is at least as likely as not that the condition had its onset during service or was caused by service, to include environmental exposures such as sand and dust. The examiner was also directed to opine whether the Veteran had respiratory symptomatology that represents an undiagnosed illness or a medically unexplained chronic multi symptoms illness that is defined by a cluster of signs or symptoms. 04/09/2019, BVA Decision. A September 2019 VA examination noted the Veteran's report that the onset of his asthma occurred in 2004, and that a diagnosis of asthma was entertained in 2014. The Veteran also had an episode of shortness of breath associated with bronchitis in 2007. A CT scan revealed a ground glass appearance in the right upper lobe consistent with an acute infectious/inflammatory process, which was subsequently treated with Albuterol. The Veteran had normal pulmonary functioning tests at the time. The examiner considered the medical article submitted by the Veteran, which essentially suggested that when the inciting agent is present, such as dust storms and burn pits, this causes asthma. However, the examiner noted that when the Veteran was removed from the environmental exposures, his studies were normal. The examiner indicated that, based upon a complete evaluation, that the Veteran does not appear to currently have asthma. The examiner remarked that the Veteran likely had an acute process in 2007, which resolved. Regarding whether the Veteran had respiratory symptomatology that represents an undiagnosed illness or a medically unexplained chronic multi symptoms illness, examiner further opined that the Veteran does not have a chronic condition related to his service, to include exposure to environmental hazards. 10/21/2019, C&P Exam; 10/21/2019, C&P Exam (medical opinion). Following the examination, the Veteran filed a separate claim for service connection sinusitis and allergic rhinitis. 08/26/2021, VA 21-526EZ. And a November 2021 rating decision granted service connection for non-allergic rhinitis and service connection for chronic sinusitis. 11/24/2021, Rating Decision. The Board places much weight on the September 2019 VA examination that considered the Veteran's in-service respiratory issues, as well as his contentions regarding environmental exposures. The examiner addressed the prior diagnoses of asthma noted in the treatment records and explained that the Veteran likely has an acute infectious/inflammatory process. The Veteran's pulmonary function tests and studies were normal when the Veteran was removed from the environmental exposures. Moreover, based upon a complete evaluation, that the Veteran does not currently have asthma. While Veteran believes he has asthma, he is not competent to provide a diagnosis in this case. The issue is medically complex as it involves the workings of the pulmonary system. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As such, the Veteran is not competent to report on such matter and his statements in this regard lack weight. Consequently, the Board gives more probative weight to the competent medical evidence, such as the VA examination report and medical opinion. While a finding that the Veteran had the disability "at some point during the processing of his claim," can satisfy the service connection requirement for manifestation of current disability, the weight of the evidence does not demonstrate that the Veteran has reported experiencing or been diagnosed with any current asthma since he filed his current claim or recently prior to such filing. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). The VA examinations reflect that the Veteran does not have asthma during the appeals period and the Veteran has been separately service-connected for sinusitis and non-allergic rhinitis. Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). In the absence of proof of a current disability, there can be no valid claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). (Continued on the next page) To the extent the Veteran's treatment records showed a prior diagnosis of asthma, such a diagnosis was not recent to the filing of his service connection claim. Additionally, the opinions above, which have been found to have great probative value, show that to the extent the Veteran may have had asthma, it resolved prior to him filing his claim as explained by the 2019 examiner. His other symptoms have attributed to disabilities for which he is now service connected. Here, the probative and competent evidence weights against a finding that the Veteran has a current disability. The benefit-of-the-doubt rule has been considered but the preponderance of the evidence is against service connection for asthma. 38 C.F.R. § 3.102; 38 U.S.C. § 5107(b); Gilbert v, Derwinski, 1 Vet. App. 49, 53-56 (1990). Garrett Morales Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David Han 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.