Citation Nr: 21076045 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 14-15 869A DATE: December 22, 2021 ORDER Service connection for asthma is granted. Service connection for a low back disability is granted. FINDINGS OF FACT 1. The Veteran's asthma was not caused by and did not arise during his first period of active duty service from September 1968 to September 1970. Rather, the evidence of record demonstrates that his asthma arose prior to his second period of active duty service from December 2003 to March 2003 and underwent a permanent worsening during that period of service. 2. The Veteran has a current low back disability. The evidence of record demonstrates that his disability is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for asthma are met. 38 U.S.C. §§ 1110, 1153, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309. 2. The criteria for service connection for a low back disability are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1968 to September 1970 in the United States Marine Corps and from December 2003 to March 2005 in the United States Army. The Veteran's active duty service included service in the Republic of Vietnam and the Southwest Asia theater of operations. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In April 2017, the Veteran participated in an informal conference with a Decision Review Officer (DRO) at his local RO. A report of this conference is of record. Thereafter, in March 2019, the Veteran testified at a Board hearing before the undersigned. A transcript of this hearing has also been associated with the Veteran's claims file. In May 2020, the Board assigned increased disability ratings of 20 percent for service-connected right and left lower extremity for meralgia paresthetica. The Board also remanded the issues of service connection for asthma, a low back disability, and bilateral hearing loss for further development. Following the Board's remand, a VA RO issued a rating decision in May 2021 granting service connection for bilateral hearing loss. The Board finds that this grant of service connection constituted a full award of the benefit sought on appeal with respect to that issue. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date). Accordingly, the issue of service connection for bilateral hearing loss is no longer in appellate status. 1. Service Connection for Asthma As indicated above in the Conclusions of Law section, the Board finds that service connection for asthma is warranted in the instant case. Thus, the Veteran's claim is granted. In support of this determination, the Board first notes that the evidence of record is not in approximate balance as to whether the Veteran was diagnosed with or experienced symptoms of asthma during his first period of active duty service from September 1968 to September 1970. In support of this conclusion, the Board finds that the Veteran was first formally diagnosed with asthma in a May 2000 VA primary care note. On this occasion, the Veteran reported a 30-year history of exercise-induced asthma and stated that it began during his time in the Marine Corps. However, during his March 2019 Board hearing, the Veteran testified that this report of a 30-year history was not accurate and that there may have been some confusion in how he responded to questions from his primary care provider. See March 2019 Board Hearing Tr. at 7-8. Accordingly, the Board concludes that the record does not support a finding of asthma with an onset during the Veteran's first period of service in the Marine Corps. However, the Board does conclude that, as explained in a May 2000 VA primary care note, asthma was a condition that clearly and unmistakably preexisted the Veteran's second period of active duty service with the Army from December 2003 to March 2005. For compensation purposes, a preexisting injury or disease will be considered to have been aggravated by service when there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence is required to rebut this presumption of aggravation. See 38 C.F.R. § 3.306(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Applying these principles to the instant case, the Board notes that the Veteran has contended that his asthma worsened in service due to his exposure to environmental hazards in Southwest Asia. See, e.g. May 2013 Notice of Disagreement (NOD). A review of service treatment records (STRs) associated with the claim file indicates that, in May 2004 while serving in Kuwait, the Veteran complained of nasal drainage and requested that his prescription of Singulair be refilled. On this occasion, the Veteran was diagnosed with asthma and allergic rhinitis. Thereafter, in January 2005, a Post-Deployment Health Assessment was associated with the Veteran's Army STRs. In this assessment, the Veteran indicated that he arrived in Southwest Asia on March 11, 2004 and was set to depart on January 17, 2005. The Veteran then reported having or developing during deployment symptoms of difficulty breathing, chronic cough, runny nose, dizziness, fainting, light headedness, and chest pain/pressure. It was then noted that the Veteran was exposed to industrial pollution, sand, dust, and power plant smoke often while deployed in Southwest Asia. Lastly, the assessment indicated that the Veteran was concerned about possible pollution exposure in Kuwait and that his primary focus was on his development of a chronic cough. In October 2008, another Post-Deployment Health Assessment was completed. On this occasion, the Veteran again reported persistent major concerns that he believed were related to his exposures to pollution, sand, and dust in Southwest Asia. The assessment specified that the Veteran should seek follow-up treatment for the symptom to dyspnea. Separate from the January 2005 and October 2008 Post-Deployment Health Assessments, in June 2005, the Veteran reported to a VA provider that his asthma symptoms had worsened since returning from Southwest Asia. Relatedly, in March 2019, Dr. Palisthe Veteran's treating VA provider in Rochester, New Yorkprovided a medical opinion in March 2019 concerning the nature and severity of the Veteran's asthma. Dr. Palis first stated that the Veteran had never been a smoker, but had a long history of mild exercise-induced asthma. She explained that the Veteran's symptoms had previously been adequately controlled with only a pre-exercise albuterol inhaler. Dr. Palis then stated that, consistent with the Post-Deployment Health Assessments and the Veteran's lay testimony, he was exposed to dense fumes and other pollutants frequently while deployed to Kuwait. She indicated that following the Kuwait deployment, the Veteran used daily oral Singulair, a twice daily Symbicort inhaler, and an albuterol inhaler to control asthmatic symptoms. Dr. Palis concluded that it was at least as likely as not that the Veteran's asthma worsened due to military service. In connection with his claim for service connection, the Veteran was provided a VA respiratory conditions examination in December 2017. In May 2020, the Board found that the medical opinion affiliated with this examination was inadequate for adjudicative purposes. The Board does not disturb this prior finding. Following the Board's May 2020 remand, the Veteran was provided additional VA medical opinions concerning asthma in May 2021 and July 2021. Firstly, in May 2021, a VA clinician opined that it was more likely than not that the Veteran's asthma preexisted the Veteran's 2003 to 2005 period of active duty service. Thereafter, in July 2021, a different VA clinician opined that the Veteran's asthma was clearly and unmistakably not aggravated beyond its natural progression by service. Rather, the July 2021 clinician stated that Veteran's experience in service from 2003 to 2005 was the normal progression of the disease. In support of this conclusion, the clinician stated that treatment for asthma in service was not noted at any point other than the above-mentioned May 2004 STR. Lastly, the clinician acknowledged that the Veteran was competent to provide a history of his symptoms, but stated that the Veteran was not competent to diagnose the medical condition related to his symptoms. In regard to the probative value of the May 2021 VA opinion, the Board concludes that it is of minimal value as it merely supports the conclusion that the Veteran's asthma preexisted his December 2003 to March 2005 service in the Army. The May 2021 opinion did not address the extent of which the Veteran's asthma was aggravated by his 2003 to 2005 period of active duty service. In comparison, the July 2021 VA opinion did address the issue of aggravation. In reviewing this opinion, the Board finds it of limited probative value as it (1) did not address the Post-Deployment Health Assessments summarized above, and (2) summarily discounted the Veteran's reports of his symptomatology. In light of the above evidence of record, the Board concludes that it cannot find that clear and convincing evidence has been presented to rebut the presumption of aggravation in the instant case. Accordingly, service connection for asthma is granted. See 38 C.F.R. § 3.306. 2. Service Connection for a Low Back Disability Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event. 38 C.F.R. § 3.303(a); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). As indicated above in the Conclusions of Law section, the Board finds that the Veteran is entitlement to service connection for a low back disability. In support of this determination, the Board first notes that the Veteran has a current low back disability. See, e.g., August 2021 VA Medical Progress Note (including low back pain and myelopathy as a current medical problem); March 2019 University of Rochester Treatment Record (noting that the Veteran was to receive injections to treat the diagnosis of lumbar radicular pain); December 2017 VA Internal Medicine Note (noting that a February 2014 MRI of the lumbar spine found a small right central disc protrusion at the L4-L5 level; a small right foraminal disc protrusion at the same level that abutted the right L4 nerve root; disc bulging at the L2-L3, L3-L4, and L4-L5 levels; and mild neural femoral narrowing at the L3-L4 and L5-S1 levels without nerve root impingement); December 2015 University of Rochester Treatment Record (stating that recent results of a lumbar spine MRI revelated multilevel degenerative changes). Accordingly, the Board finds that the first service connection requirement of a current disability has been satisfied in the instant case. See 38 C.F.R. § 3.303. Turning to the next requirement of an in-service incurrence, the Board first notes that while complete STRs from the Veteran's period of service from 1968 to 1970 are currently unavailable, his August 1970 separation examination from the Marine Corps did not indicate any injuries or limitations of the low back. Nevertheless, the Veteran has stated that he injured his lower back in the Marine Corps when: (1) he became airborne off of a bunker as a result of a close mortar impact, and (2) he fell off of a 5-ton cargo truck during an unload of equipment while under fire. See May 2013 NOD. Additionally, in January 2018, the Veteran stated that his low back disability which initially arose due to his service in the Marine Corps was aggravated during his period of service in the Army from 2003 to 2005. The Veteran explained that he was mobilized for Operation Iraqi Freedom, and that combat training and service in Southwest Asia intensified his then-existing back pain. In regard to the Veteran's reports of injuries while service in Vietnam, the Board notes that the Veteran was awarded a Combat Action Ribbon in connection with his service in Vietnam in the Marine Corps. See Department of Defense Form 214 (DD214) received in March 2019. In addition, as a layperson, the Veteran is competent to report on all things which he has personal knowledge derived from his own senses, including his in-service experiences. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Applying this principle to the current evidence of record, the Board finds the Veteran's testimony regarding in-service injuries to his low back in Vietnam, as well as his back-pain's intensification during his training and deployment to Southwest Asia, to be credible. Accordingly, the Board finds the second service connection requirement of an in-service incurrent to be satisfied in this case. See 38 C.F.R. § 3.303. Lastly, regarding a nexus between the Veteran's current low back disability and service, the Board first notes that, during his March 2019 Board hearing, the Veteran testified that he had experienced low back pain ever since his service in the Marine Corps. See March 2019 Board Hearing Tr. at 5. The Board finds the Veteran to be credible regarding the continuity of his back-pain symptoms. Separate from the Veteran's testimony, the Board next notes that VA medical opinions concerning the etiology of the Veteran's low back disability were provided in May 2021 and July 2021. Both opinions were negative in linking the Veteran's current low back disability to service. The Board finds these opinions to be inadequate because (1) the May 2021 opinion was based, in part, upon no reports of back pain being documented until 2009, and (2) the July 2021 opinion quickly discounted lay reports of an in-service injury to the low back and continuity of symptomatology by muddling laypersons' competency to report symptoms with a layperson's competency to diagnose an orthopedic condition. Thus, these 2021 opinions are of little probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In addition, the May 2020 remand found a prior VA medical opinion from December 2017 to be inadequate for adjudicative purposes. Similar to the issue of service connection for asthma, the Board does not disturb this finding of inadequacy at this time. Contrary to the VA medical opinions provided in the Veteran's case, his VA provider Dr. Palis opined in March 2019 that it was at least as likely as not that the Veteran's low back disability was due to service. In support of this conclusion, Dr. Palis recounted the Veteran's reports of injuring his low back in Vietnam, the continuity of his low back pain symptoms, and the aggravation of low back pain during the Veteran's Army service from 2003 to 2005. The Board finds Dr. Palis' opinion to be adequate for adjudicative purposes and supportive of a finding that a nexus to service has been established. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As there are no other competent, adequate medical opinions of record, service connection for a low back disability is granted on a direct basis. See 38 C.F.R. § 3.303. The Veteran's claim is granted. (Signature on Next Page) S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.