Citation Nr: 21074862 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-42 956 DATE: December 16, 2021 ORDER Entitlement to service connection for a respiratory condition as due to exposure to particulate matter is granted. FINDING OF FACT The Veteran's respiratory condition is associated with exposure to particulate matter, the Veteran was exposed to such particulate matter during a qualifying period of active-duty service, and the Veteran's respiratory condition became manifest within 10 years of such active-duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory condition as due to exposure to particulate matter have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.320. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2000 to December 2004, with additional periods of inactive duty for training. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of June 2016 issued by the Department of Veterans Affairs (VA) Regional Office (RO). The undersigned Veterans Law Judge (VLJ) conducted a hearing in this matter in July 2021 and a transcript of that hearing is of record. Entitlement to service connection for a respiratory condition. Generally, service connection requires the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). 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). Service connection may also be assigned on a presumptive basis, or without proof of a causal relationship, for chronic diseases associated with exposure to particulate matter. 38 C.F.R. § 3.320(a). These diseases include asthma, rhinitis, and sinusitis. 38 C.F.R. § 3.320(a)(2). To qualify for service connection on this basis, veterans must have a qualifying period of active-duty service within a designated theater of operations. Id. at (a)(4) (providing qualifying periods and applicable theaters). Where such a qualifying period of active-duty service is shown, veterans will be presumed to have been exposed to particulate matter during such service unless there is affirmative evidence to establish that no such exposure occurred. Id. at (a)(3). The Veteran asserts that he has developed a respiratory condition as a result of exposure to burn pits during his active-duty service. See December 2015 VA Form 21-526EZ at 2; see also September 2016 Notice of Disagreement (NOD) at 2-3; see also August 2017 VA Form 9 at 2; see also July 2021 Transcript. As an initial matter, the Board notes that the Veteran's discharge certificate reflects receipt of the Afghanistan and Iraq Campaign Medals. See October 2007 Discharge Certificate; see also March 2010 Service Treatment Records at 8 (providing February 2004 post-deployment questionnaire in which the Veteran reported being exposed "often" to smoke from oil fires, smoke from burning trash or feces, and vehicle or truck exhaust fumes). The Board therefore finds that the second Shedden factor has been met. 38 C.F.R. § 3.303. Additionally, the Board finds that the Veteran has a qualifying period of active-duty service as defined by the regulations discussed above. See 38 C.F.R. § 3.320(a)(4). The Board therefore presumes that the Veteran was in fact exposed to particulate matter during such service and has found no affirmative evidence in the record to rebut this presumption. Id. at (a)(3). The Veteran has undergone a VA examination addressing this issue in April 2016. The VA examiner diagnosed the Veteran with asthma and restrictive lung disease. See May 2016 VA Examination Report at 10. The Board therefore finds that the first Shedden factor has been met as well and that the Veteran has a chronic disease associated with exposure to particulate matter. 38 C.F.R. § 3.320(a)(2). However, the VA examiner opined that it was less likely than not that the Veteran's respiratory condition was incurred in or a result of his active-duty service, stating specifically that "[t]here is no evidence of any asthma or breathing problems in the veteran's medical service records, nor any complaints of such issues." Id. at 21. In reaching this conclusion, the examiner considered both the evidence in the claims file, including the Veteran's prior assertions of exposure to burn pits, and the Veteran's contemporaneous lay assertions. Id. at 9-11. Therefore, with respect to the third Shedden factor, the medical nexus requirement is not met by this examination report. The Board now clarifies several points concerning the evidence of record. First, a portion of the Veteran's STR were determined to be missing by the RO but appear to have been subsequently recovered and included in the evidence of record. See January 2009 STR; cf. January 2009 VA Memorandum (finding that STR from July 2000 to December 2004 were unavailable); cf. March 2010 STR (providing records from this period); see also May 2020 STR (same). Second, the Veteran has asserted that he began experiencing symptoms of impaired breathing during his active-duty service, that he deliberately did not report these symptoms in order to remain deployed, and that such symptoms have persisted continuously from that time. See July 2021 Transcript at 3-5. The Veteran's STR are consistent with his assertion that he did not report such symptoms during his active-duty service. See March 2010 STR at 7 (reporting no difficulty breathing, nor any other symptoms, in February 2004 post-deployment questionnaire); see also id. at 4-5 (providing separation assessment noting only removal of wisdom teeth). Instead, his STR reflect treatment for allergies. See May 2010 STR at 50 (providing June 2002 treatment note observing nasal congestion, sneezing, itchy eyes, and a runny nose, but not coughing or shortness of breath, and diagnosing allergic rhinitis); see also id. at 25 (providing April 2003 treatment for a cold, observing congestion, sneezing, and a runny nose among other symptoms, but noting denial of shortness of breath). However, the Veteran's assertions of continuous or recurrent symptoms of impaired breathing are contradicted by the evidence of record. This includes medical records from the period following his active-duty service, after which the Veteran's expressed interest in remaining deployed was no longer applicable. See January 2016 Medical Treatment Records at 29 (providing May 2005 treatment for allergic rhinitis and noting no cough or shortness of breath); see also March 2013 Medical Treatment Records at 22 (providing December 2006 treatment note in which the Veteran denies cough or shortness of breath, among other symptoms); see also id. at 8 (providing same in June 2007); see also id. at 3 (providing same in October 2008); see also id. at 2 (noting family history of asthma and allergies). Instead, the medical evidence of record supports the inference that the Veteran's symptoms of impaired breathing did not begin until at least several years after his active-duty service. See December 2015 Medical Treatment Records at 13-24 (providing Veteran's December 2014 registration with the Open Burn Pit Registry). The Board notes that this evidence falls just outside the ten-year window provided by the applicable regulations governing presumptive service connection. See 38 C.F.R. § 3.320(a)(1) (providing that a qualifying chronic condition must become manifest within 10 years of the date of separation from qualifying active-duty service); see also December 2015 Medical Treatment Records at 13 (providing that the Veteran's registration with the Open Burn Pit Registry was made December 19, 2014); cf. October 2007 Discharge Certificate (providing that the Veteran's active-duty service ended December 10, 2004). However, when considered together with the other evidence of record and the doctrine of reasonable doubt, the Board finds it at least as likely as not that the December 19 registration reflects the onset of respiratory symptoms which occurred prior to December 10, 2014, and therefore within the 10-year presumptive window. 38 U.S.C. § 5107. Accordingly, the Board finds that the Veteran has a qualifying chronic disease which manifested within 10 years of separation from a qualifying period of active-duty service. 38 C.F.R. § 3.320(a). The Board has found no affirmative evidence in the record to support the conclusion that the Veteran's respiratory condition was not incurred in or aggravated by his active-duty service, was caused by a supervening condition or event, or was the result of the Veteran's own willful misconduct. See 38 C.F.R. § 3.320(b). The assignment of service connection for the Veteran's respiratory condition on a presumptive basis as due to exposure to particulate matter is therefore warranted. 38 C.F.R. § 3.320(a). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Blore, 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.