Citation Nr: 21008861 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-58 197 DATE: February 18, 2021 ORDER New and material evidence having been received, the previously denied claim of service connection for a respiratory disability, also claimed as asthma, is reopened. Service connection for asthma is granted.   FINDING OF FACT The Veteran’s asthma is related to his military service. CONCLUSION OF LAW The criteria for Service connection for asthma are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1981 to September 1984, and from January 1985 to August 2003. The case is on appeal from a January 2014 rating decision. In August 2020, the Veteran testified at a Board hearing. The November 2016 statement of the case (SOC) lists a September 2014 rating decision as the decision on appeal. Nevertheless, the Board notes that following a previous January 2014 rating decision, the Veteran submitted a new claim to reopen in May 2014, accompanied by medical evidence that relates to an unestablished fact necessary to substantiate his claim. As this constitutes new and material evidence received within one year of the January 2014 rating decision, that is the decision on appeal. See 38 C.F.R. § 3.156(b); see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). 1. Whether new and material has been received to reopen the previously denied claim of service connection for a respiratory disability. Notwithstanding the more recent procedure, the claim was also denied in the remote past. By a July 2005 rating decision, a claim of service connection for asthma was denied on the basis on no current disability. The Veteran was notified of the decision by letter in August 2005, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claim was received until the present claim to reopen in February 2013. No new evidence or notice of disagreement was received by VA within one year of the issuance of the July 2005 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In May 2014, the Veteran submitted medical records from his private attending physician noted that the Veteran has a breathing problem now diagnosed as “caught variant asthma” which had its onset during military service. The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for asthma is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also Dr. I.G.’s September 2015 medical opinion; and August 2020 Board hearing testimony at p.7. 2. Service connection for asthma. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). When there is approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).   Analysis The Veteran contends that service connection for his respiratory disorders, also claimed as asthma, must be warranted as the problems began during military service and that even it was not necessarily properly diagnosed during service, his symptoms have continued the same ever since service. See August 2020 Board hearing transcript at p.11. The Board notes that the Veteran is currently diagnosed with asthma, also described as moderate persistent asthma, cough variant asthma, and exercise induced asthma. See April 2019 private treatment records from Dr. I.G.; see also July 2014 VA examination report; November 2014 VA treatment records; March 2016 VA treatment records; and August 2019 VA treatment records. As such, the current disability element of the claim has been established. As to the in-service element of the claim, service treatment records (STRs) reflect that the Veteran was sound at entrance. See June 25, 1981 entrance medical examination. Thereafter, STRs account for multiple respiratory complaints during service. See March 1982 entry (the Veteran reported coughing for the last 24 hours); January 6, 1990 entry (fatigue and cough assessed as a viral upper respiratory infection (URI)); November 9, 1987 entry (productive cough assessed as URI and tonsillitis); May 10, 1995 entry (breathing problems assessed as sinusitis); April 23, 1998 (non-productive cough assessed as flu-like symptoms); April 1, 1999 entry (cough and other symptoms assessed as pharyngitis); March 7, 2002 entry (persistent cough assessed as either allergic cough vs. viral, secondary to bronchitis); August 2, 2002 entry (persistent coughing assessed as asthma possible cough variant vs. VCD (vocal cord tightening); August 5, 2002 Report of Medical History (the Veteran reported asthma and/or breathing problems for which he was prescribed inhalers); August 14, 2002 entry (the provider noted a history of “asthma” and post exercise dyspnea but without formal workup. Symptoms were assessed as asthma and/or SOB and pulmonary disease medical appointments were scheduled); November 18, 2002 entry (the Veteran was prescribed Fluticasone, a corticosteroid inhaler); and June 24, 2003 entry (the Veteran reported a hacking cough that had been going on for two months, aggravated by day weather and which was assessed as possible reactive airway disease). In light of the foregoing, the Board finds that the in service element of the claim has been also established. Thus, the question for the Board turns into whether a nexus exist between the Veteran’s current disability and the in service events mentioned above. On this question there are probative opinions in favor of and against the claim. The Veteran initially claimed service connection for a respiratory disorder, also claimed as asthma in October 2003. He was then afforded a VA examination in March 2004, in connection with his claim. The VA examiner indicated that the Veteran began to experience shortness of breath (SOB) severe and chronic coughing attacks after running in 1994, for which medication was prescribed. The examiner concluded that the Veteran’s history is consistent with mild exercise induced and cough variant asthma with normal chest x-rays and pulmonary function tests (PFTs). The report does not contain a nexus opinion. The Veteran was afforded a second VA examination in connection with this claim in July 2014. The Veteran reported the onset of his respiratory problems sometime between 1994 and 1999 as he began developing coughing attacks after running. He also noticed that his coughing attacks were triggered by turning on the air conditioner in the car. He sought medical treatment and was prescribed an inhaler. The Veteran further indicated that prior to his separation from service, he was seen by a pulmonologist who prescribed steroid and corticosteroid inhalers combined with allergy medication. The VA examination report reflects a pulmonary condition diagnosed as “asthma.” The VA examiner acknowledged that the Veteran requires bronchodilators and anti-inflammatory medication on a daily basis. Moreover, the examiner indicated that his symptoms now are the same as he reported in 2002. Notwithstanding the foregoing, the VA examiner opined that the Veteran has multiple medical diagnoses which may contribute to his cough. In sum, the examiner concluded that “there is no support for the diagnosis of asthma or other lung condition at this time In a private medical opinion received in September 2015, the Veteran’s attending physician, Dr. I.G., indicated that upon review of the Veteran’s medical records, his STRs dated from 1984 to 2002, the private treatment records from his office and his own knowledge of the Veteran’s condition, the Veteran’s asthma is most likely caused by or a result of exposure to allergens beginning in 2002. In support of his opinion, Dr. I.G. noted that the Veteran “had persistent cough while in the military service and was continued on Asmanex inhaler [and] albuterol inhaler when [separated] from active duty. He further noted that by 2014 his condition “had gone on to advance from cough variant asthma to full asthma by September 10, 2014.” Post-service treatment records reflect that the Veteran has continued reporting breathing problems following his separation from service. e.g. See March 13, 2004 PFT (indicating that the Veteran had a harsh cough with white sputum throughout the entire test for which he was given Albuterol as a bronchodilator); June 23, 2004 progress notes (indicating that the VA provider suspects asthma especially given the Veteran’s family history); July 29, 2014 progress notes (developed cough and SOB with wheeze requiring albuterol with a history of exercise induced asthma. Cough has been productive of clear sputum. Has some pleuritic chest pain like needles aggravated with coughing. Uses his mometasone daily along with steroid nasal spray and loratadine daily); August 25, 2014 progress notes (indicating that the Veteran is on albuterol and Mometasone for his asthma); September 19, 2014 progress notes (listing asthma and cough variant asthma as part of the Veteran’s active medical problems); and August 14, 2019 progress notes (indicating a diagnosis of moderate persistent asthma). In addition, private treatment records from Dr. I.G. reflect that in April 2014, the Veteran sought treatment for his continuous breathing problems. The private provider noted that the symptoms began while he was in the military and require inhalers for relentless cough occurring especially when exercising for PT and that this still occurs to this day. The physician also stated that the Veteran has to maintain use of his medications, including inhalers. In a June 2020 lay statement, the Veteran’s spouse, Mrs. M.V., indicated that she witnessed how in many occasions the Veteran suffered from coughing attacks while in service, particularly after running during PT. She also noted that this resulted in him been prescribed bronchodilators inhalers to use prior to working out. Lastly, Mrs. M.V. stated that these symptoms have continued ever since service and that it was not until he was placed permanently on asthma medication that he has been able to somewhat manage these attacks. During his August 2020 Board hearing, the Veteran testified that while in service, he began noticing productive cough attacks immediately after running, that this eventually led to the prescription of inhalers, that the condition worsened during service to the point where he would be traveling or passing by some chemicals or something and they would trigger cough attacks, that the symptoms he currently experience have been present ever since service, and that his respiratory problems have been described as asthma by his private attending physician, Dr. I.G. The Board acknowledges the Veteran’s and his wife’s statements as to the onset of his disability and when considered along with his STRs and the symptomatology shown, particularly towards the end of his military service, finds them credible. Their statements describing symptoms experienced and/or observed are supported by a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). (Continued on the next page)   Although there are opinions in favor of and against the claim, the Board accords more probative value to the September 2015 opinion from Dr. I.G. since, as the Veteran’s private attending physician, is not only in a better position to opine with respect to the etiology of the Veteran’s current disability, but has provided such opinion based on a review of the Veteran’s medical history, the interviews conducted throughout the Veteran’s treatment, and based on the significant and particular facts of the case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-03 (2008). His conclusion appears to be supported by the additional medical evidence of record indicating the presence of symptoms during service and that have remained very similar ever since. While the July 2014 VA examiner opined that the record does not support an asthma diagnosis, his opinion appears to be contradictory to his own examination report indicating pulmonary disease identified as “asthma.” Moreover, the examiner attributed the Veteran’s “coughing” problems to separate multiple diagnoses; however, without providing at least an example or by explaining how he reached his conclusion. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current diagnoses of asthma is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for asthma is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William Pagan, 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.