Citation Nr: 21076905 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-38 645 DATE: December 28, 2021 ORDER Entitlement to service connection for a respiratory condition other than interstitial lung disease, to include asthma, bronchitis, and chronic obstructive pulmonary disease (COPD), is granted. FINDING OF FACT The Veteran's respiratory conditions other than interstitial lung disease, to include asthma, bronchitis, and COPD, were caused by his conceded in-service toxic environmental exposures. CONCLUSION OF LAW The criteria for service connection for a respiratory condition other than interstitial lung disease, to include asthma, bronchitis, and COPD, are 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 in the United States Navy from February 1962 to July 1965. This matter comes before the Board of Veterans' Appeals (Board) from a September 2017 rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In February 2021, the Veteran testified before the undersigned Veterans Law Judge at a virtual Board hearing. In March 2021, the Board remanded this matter for the AOJ to obtain an addendum medical opinion. Addendum medical opinions were obtained in July and August 2021. In October 2021, the AOJ granted service connection for interstitial lung disease and denied service connection for the Veteran's other diagnosed respiratory conditions, which include asthma, bronchitis, and COPD. Accordingly, the issue currently before the Board is entitlement to service connection for a respiratory disability other than interstitial lung disease, to include asthma, bronchitis, and COPD. The Veteran asserts his respiratory conditions are due to exposure to jet fuel and asbestos on the flight line while serving as a lineman aboard the USS Forrestal. See Board Hearing transcript (Tr.) at 2-3; November 2017 Notice of Disagreement (NOD); July 2017 VA Form 21-4138, Statement in Support of Claim. The Board agrees. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The first element of service connection, a current disability, is met as the Veteran has been diagnosed with asthma, chronic bronchitis, and COPD. See July 2021 and August 2019 C&P examinations; March 2021 private treatment record; May 2014 and September 2013 VA primary care notes. The second element of service connection, in-service incurrence, is also met, as the record reflects the Veteran was exposed to jet fuel and asbestos in service and that he experienced respiratory-related symptoms in service. In this regard, the Veteran has competently and credibly reported that he was exposed to jet fuel and asbestos on the flight line while serving as a lineman aboard the USS Forrestal. See Tr. 2-3, 8-9; November 2017 NOD; July 2017 VA Form 21-4138, Statement in Support of Claim. These reports are consistent with the places, types, and circumstances of the Veteran's service aboard a ship. 38 U.S.C. § 1154(a); February 1965 military personnel record; October 1963 and November 1964 service treatment records (STRs); DD Form 214. In addition, the Veteran's STRs reflect that he reported sore throat, chest cold, productive cough, and swollen throat in service. The first two elements of service connection having been met, this case turns on a causal relationship between the current disability and in-service incurrence, otherwise known as a nexus. The record contains a negative August 2019 VA nexus opinion, which the Board has already deemed to be inadequate. See March 2021 Board decision at 2. That leaves the addendum opinions obtained in July and August 2021, which state that the Veteran's asthma, bronchitis, and COPD are less likely than not related to service. The Board, however, finds these negative opinions to be inadequate. First, the examiner noted the lack of documented treatment for asthma, bronchitis, and COPD until the 2000s, but failed to explain the relevance of this finding or why this finding outweighed the fact that the Veteran was diagnosed with asthma shortly after leaving service, which the examiner claims to have conceded. This deficiency is especially significant in light of the Board's instruction to accept as true the Veteran's reports of continuous treatment since service. See March 2021 Board decision at 3-4. Second, the examiner attributed the Veteran's asthma to post-service exposures but failed to explain why post-service exposures were more likely the cause of his asthma rather than in-service exposures. Third, the examiner failed to adequately discuss medical articles discussing occupational asthma, which the Board directed the examiner to address. Id. at 4. Accordingly, the July and August 2021 addendum opinions are inadequate. Although there are no favorable opinions of record linking asthma, bronchitis, and COPD to service, remand is unnecessary as the record contains sufficient evidence to be in relative equipoise and remanding for further development would only serve to develop potentially negative evidence. See Andrews v. McDonough, 34 Vet. App. 216 (2021) (explaining that remand should not be undertaken if further development might only lead to a denial and the evidence of record is sufficient to grant the claim); 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination."). In this regard, the record contains an OSHA Fact Sheet about work-related (or occupational) asthma. The fact sheet explains that work-related asthma can develop over "ANY period of time (days to years)." The fact sheet includes a guide for clinicians to diagnose work-related asthma, which directs clinicians to ask whether a patient has signs of an allergy such as runny nose, nasal congestion, or irritated eyes. A second document originating from a well-known hospital system notes that one type of asthmaimmune-mediated asthmahas a latency period of up to several years. The document does not define how many years is "several," other than to explain that it is highly variable and can take years after initial exposure for the condition to be diagnosed. The document defines occupational asthma as being caused by "exposure to particular inhaled chemicals in the workplace that cause the airways to become excessively reactive." The document then explains that the condition initially presents as allergic symptoms, which according to the OSHA Fact Sheet includes runny nose, nasal congestion, or irritated eyes, and the development of allergy symptoms precedes the development of the condition. The document also specifies that after initial exposure, any small amount of irritant can trigger symptoms. The document states that symptoms can subside and return. The July and August 2021 examiner did not discuss these documents in this level of detail. Although the examiner did not rely on these documents to provide a favorable nexus opinion, the documents contain sufficient evidence to find that the Veteran's asthma is at least as likely as not due to in-service toxin exposures, after resolving reasonable doubt in his favor. In this regard, the examiner cited the documents for the proposition that the Veteran's asthma was more likely caused by post-service exposure to pesticides and construction sites. The examiner, however, failed to explore the theory outlined in the documents that initial exposure to irritants (such as those during service) can sensitize the respiratory system to future exposure and will exacerbate the effects of future exposure. The documents support the theory that the Veteran's exposure to irritating chemicals in service (fuel, vapors, and asbestos) caused allergic symptoms (sore throat, cold, and cough, as reflected in the STRs), which marked the onset of a condition that has a highly variable latency period that can last years and render a person more susceptible to future exposures (such as the Veteran's post-service exposure to pesticide and construction sites). Moreover, the Board has deemed the Veteran a credible historian and he has reported that he was first diagnosed and treated for asthma shortly after leaving service in the 1960s and that he has continued to receive treatment since then. Tr. 4-5; November 2017 NOD. This theory is also supported by the examiner's reasoning that attributed the Veteran's asthma to other occupational exposures. The examiner did not explain why these other exposures incurred post-service were more likely the cause of his asthma than in-service exposures. Given this lack of explanation, the Board resolves doubt in the Veteran's favor, and finds that the documents about asthma and the examiner's rationale support a finding that in-service exposure to chemical irritants is at least as likely as not the cause of the Veteran's asthma. This finding is further supported by the Veteran's credible reports of being diagnosed with asthma shortly after service and receiving treatment for the condition since then. Regarding bronchitis and COPD, the August 2021 examiner's only rationale is that the Veteran "would have most likely required treatment" (speculative language) for the conditions, which is not supported by documentation. The Board, however, instructed the examiner to accept as true the Veteran's statements of continuous treatment despite the absence of documentation. See March 2021 Board remand at 4. Although the examiner's rationale is inadequate, and slightly speculative, the Board relies on one part of her discussion to support the claim. Specifically, the examiner observed that all the Veteran's diagnosed respiratory conditions (to include service-connected interstitial lung disease (ILD)) are as equally likely the source of his respiratory symptoms. The examiner gives the impression that all the respiratory conditions are contributing to the Veteran's symptoms and all the conditions make up the same disability picture. Since ILD is service-connected and the Board finds that the record supports service connection for asthma, it is reasonable to infer that COPD and bronchitis (which is a form of COPD) at least as likely as not share the same etiology as that caused by the service-connected conditions, after resolving doubt in the Veteran's favor and consider this finding of the VA examiner that all of his respiratory disabilities make up the same disability picture. It would be unfair to the Veteranas well as illogicalto grant some respiratory disabilities and deny others if the examiner opined that they equally make up his disability picture and they cannot be separated, especially in light of the examiner's failure to delineate their etiologies. See Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) ("The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder."); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011) (drawing an "inference based on the evidence" is at the heart of any adjudication). In any event, the Board finds this to be an issue of reasonable doubt, which it resolves in the Veteran's favor. Granting service connection is also supported by the Veteran's credible reports of continuous treatment since service and a March 2014 private treatment record noting a history of chronic bronchitis. Accordingly, all elements of service connection for asthma, bronchitis, and COPD are met, and the benefits sought on appeal are granted. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, 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.