Citation Nr: 21076190 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 09-18 719 DATE: December 22, 2021 ORDER Entitlement to service connection for asthma is granted. FINDINGS OF FACT 1. The Veteran had service in the Southwest Asia Theater of operations during the Persian Gulf War. 2. The Veteran has asthma due to his Persian Gulf service. CONCLUSION OF LAW The criteria for service connection asthma have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the U.S. Air Force from September 1981 to July 1992, to include service in Southwest Asia from July 1991 to September 1991. The most recent procedural history for this appeal involves the January 2020 Joint Motion for Partial Remand, which vacated and remanded the April 2019 Board decision that denied entitlement to service connection for asthma and chronic bronchitis. In June 2020, the Board remanded the appeal to obtain a new opinion. Three opinions were associated with the record, two of which were received following the August 2020 Supplemental Statement of the Case. The appeal was remanded once more in December 2020 to obtain an additional medical opinion in light of conflicting opinions. 1. Entitlement to service connection for asthma Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Establishing service connection generally requires (1) medical evidence of a presently existing disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claim in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); Hickson v. West, 12 Vet. App. 247, 253 (1999). Effective August 5, 2021, VA issued an interim final rule amending its adjudication regulations and establishing presumptive service connection for three chronic respiratory health conditions, to include asthma, in association with presumed exposures to fine, particulate matter. These presumptions apply to veterans with a qualifying period of service, i.e., who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, as well as in Afghanistan, Syria, Djibouti, or Uzbekistan, on or after September 19, 2001, during the Gulf War. See Presumptive Service Connection for Respiratory Conditions Due to Exposure to Particulate Matter, 86 Fed. Reg. 42724 (August 5, 2021), to be codified at 38 C.F.R. § 3.320. A qualifying disease shall be service connected even though there is no evidence of such disease during the period of service if it becomes manifest to any degree (including non-compensable) within 10 years from the date of separation from military service. The Persian Gulf War began on August 2, 1990, and the Southwest Asia theater of operations encompasses Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, and the Red Sea. 38 C.F.R. §§ 3.2 (i), 3.317(e)(2). The Veteran's military personnel record reflects that he served on active duty in Saudi Arabia. Thus, the Veteran has a period of service that qualifies for the presumption as a result of his military service in Saudi Arabia from approximately July 1991 to September 1991. The Veteran is therefore presumed exposed to fine, particulate matter during such service, and there is no affirmative evidence to establish he was not exposed to fine, particulate matter during such service. 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 Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. For the following reasons, the Veteran is entitled to service connection for asthma. Though service treatment records and the Veteran's report of medical history and report of medical examination at service separation do not show respiratory symptoms or complaints, in his April 2009 Substantive Appeal, the Veteran indicated that symptoms related to his respiratory disorder were not in his records because he was discharged just after returning from serving in Desert Storm. He believed the burning oil wells caused his problems and his symptoms began later. Post-service medical records show in December 1999, an imaging was performed to rule out lung cancer. His lungs were clear and there was no evidence of edema or cardiopulmonary disease. The Veteran was hospitalized and treated in June 2008 for asthma, cough, shortness of breath, and difficulty breathing. An October 2008 pulmonary consult noted the Veteran's description of loading and unloading aircraft in Desert Storm, living in airconditioned quarters while in Air Force and seeing black clouds of smoke when oil fields burned. Finding all reasonable doubt in the Veteran's favor, his asthma became manifest to a degree within 10 years from the date of his qualifying period of service in Southwest Asia as shown by the evidence of his symptoms of shortness of breath and x-ray examination to rule-out lung cancer in 1999. McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (in determining the date entitlement arose, when an original claim for benefits is pending, the Board must determine when a claimant's disability manifested itself under all the "facts found" and "the date on which the evidence is submitted is irrelevant"); Traut v. Brown, 6 Vet. App. 495 (1994) (establishing service connection on a presumptive basis does not require that a chronic disease be diagnosed within the applicable time period; rather, symptoms that manifest within this time period may subsequently be determined to have been early manifestations of a chronic disease). As the Veteran's asthma symptoms manifested to a degree within 10 years of his qualifying period of service in Southwest Asia during the Persian Gulf War, and he is presumed to have been exposed to particulate matter based on his service, entitlement to service connection for asthma is warranted on a presumptive basis. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Price, Esq. 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.