Citation Nr: 21010414 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-53 746 DATE: February 24, 2021 ORDER Entitlement to service connection for a respiratory disorder, including asthma, to include as secondary to service-connected allergic rhinitis is denied. FINDING OF FACT The Veteran’s respiratory disorder is not secondary to service-connected allergic rhinitis and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder due to service or service-connected allergic rhinitis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1966 to September 1979 and from January 1980 to March 1987. The Veteran had a video hearing before the undersigned Veterans Law Judge in November 2019. In February and October 2020, the Board remanded this matter for additional development, most recently for a new VA medical opinion which was obtained in November 2020. Finally, in a January 2021 statement, the Veteran’s representative appears to raise the new issues for entitlement to service connection. Effective March 24, 2015, when a claimant submits a communication indicating a desire to apply for VA benefits, but the communication does not meet the standards of a complete claim for benefits, the communication will be considered a request for an application form for benefits under 38 C.F.R. § 3.150(a). 79 Fed. Reg. 57,660, 57,695 (Sept. 25, 2014) (to be codified at 38 C.F.R. § 3.155(a)). When such a communication is received, VA shall notify the claimant and the claimant’s representative of the information necessary to complete the application form or form prescribed by the Secretary. Id. Considering the foregoing, the Veteran’s claims are referred to the Agency of Original Jurisdiction (AOJ) for any appropriate action. 38 C.F.R. § 19.9(b) (2015). 1. Entitlement to service connection for a respiratory disorder, to include asthma. The Veteran asserts that asthma developed during service or developed secondary to his service-connected allergic rhinitis. During his November 2019 Board hearing, the Veteran reported that he started having problems breathing in service, due to the cold, but did not go to sick call initially and received diagnoses of respiratory infection. He reported that he did not get diagnosed with asthma until after service and was found to have exercise induced asthma. In the January 2021 written brief presentation, the Veteran’s representative claimed that the addendum opinion provider had discounted the number of years that the Veteran served, and that service treatment records did not specifically document that asthma had been ruled out. The representative reiterated that there are strong links between allergic rhinitis and asthma. He also noted that some treatment records showed that the Veteran had seasonal asthma or asthma, which the representative argued likely corresponds with allergic rhinitis. 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). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that although the Veteran has a current diagnosis of asthma and COPD, the preponderance of the probative evidence weighs against finding that the Veteran’s respiratory disorder, other than allergic rhinitis, began during service or is otherwise related to an in-service injury, event, or disease or is proximately due to, or aggravated by the service-connected allergic rhinitis. To the extent that the Veteran’s representative has claimed that a respiratory disorder is caused by diabetes mellitus or coronary artery disease, the Board notes that the Veteran is not service connected for such disorders. As such, service connection as secondary to these disorders is not possible. As to the Veteran’s claims that his asthma began during service, the most probative evidence of record does not support that claim. Service treatment records do not document any findings of asthma or COPD. There were occasional respiratory findings, such as a February 1979 finding of apparent bronchitis. An October 1983 recorded that the Veteran had a pack per day smoking history since 1968, but that he had no symptoms and a normal chest X-ray. There was also a November 1986 chest X-ray showing pneumonia and a finding of an upper respiratory infection that same month. There was a February 1987 finding of chronic nasal congestion. In his January 1987 retirement report of medical history, the Veteran denied having a history of asthma, as well as, shortness of breath. To the extent he indicated ear, nose, or throat trouble, that trouble was clarified as a deviated nasal septum. At that time, the record noted that the Veteran had quit smoking a few years previously. Also, shortly after his March 1987 separation from service, the Veteran did not receive a diagnosis of asthma or COPD. In May 1987, the Veteran underwent a VA examination. A May 1987 chest X-ray showed that both lungs were clear of any acute process. An ENT evaluation found that the Veteran complained of a history of nasal problems, with difficulties with nasal obstruction and heavy snoring. An operative procedure corrected internal nasal deformity and relieved many symptoms. In the last 2-3 years he began experiencing increasingly nasal congestions and blockages. The examiner found that his external nasal structures were within normal limits, but turbinates were moderately hypertrophied and a watery discharge present. The examiner found moderate nasal motor rhinitis and opined that his obstruction was primarily secondary to such rhinitis. The Board notes that the Veteran is already separately service connected for allergic rhinitis. Treatment records show the Veteran was not diagnosed with asthma or COPD until many years after his separation from service. A March 2008 Hattiesburg Clinic record noted complaints of asthmatic bronchitis. A March 2008 X-ray showed moderate peribronchial thickening and increased interstitial markings as can be seen with “bronchitis, asthma, and patients who smoke?” The Veteran subsequently appears to have been referred for an April 2008 pulmonary medicine consultation for respiratory complaints. The Veteran reported that he had never had pneumonia or asthma. The pulmonologist diagnosed him with cough/wheezing of uncertain etiology and chronic sinusitis. In a June 2008 record, the provider noted increasing respiratory complaints and pulmonology evaluation, which was felt to be seasonal allergies and asthma. In an April 2011 Hattiesburg Clinic record, his physician noted that the Veteran had recurrent asthma and allergic rhinitis. In October 2012, the Veteran reported that he has asthma but did not have COPD, though he was a former smoker. He reported he had cough, wheezing, and intermittent shortness of breath for about a week and has it all the time. His doctor informed him he likely has COPD, whether he wanted to believe it or not, and was prescribed Advair for it. A November 2012 Hattiesburg Clinic record noted a diagnosis of asthma and COPD and acute bronchitis. The Veteran complained of increasing cough and congestion and history of asthma. In an October 2012 record, the Veteran reported a history of seasonal asthma and received a diagnosis of asthma with bronchitis, improving. A December 2015 record documented that the Veteran had seasonal asthma. In a September 2016 private DBQ, Dr. A.F. diagnosed the Veteran with allergic rhinitis. In a different 2016 private DBQ, Dr. A.F noted asthma was diagnosed on April 17, 2015. He noted that the Veteran had presented that day with daily symptoms of cough, wheeze, and dyspnea. At most, to support the Veteran’s claim of a diagnosis of having undiagnosed asthma in service, in a December 2019 DBQ, Dr. K.L.M. reported asthma diagnosed in May 2015 and COPD prior to April 2015. She also noted in-service diagnoses of bronchitis and sinusitis. She reported reviewing clinic records from April 2015 to present and service records from 1973-1979. She reported review of military records all episodes of URI symptoms and reported that “I cannot rule out possibility he had undiagnosed asthma while in military.” In VA medical opinions from February 2020 and November 2020, the VA medical opinion provider found that the Veteran did not have a diagnosis of a respiratory disorder (other than the already service-connected allergic rhinitis), to include asthma or COPD that was at least as likely as not incurred in or caused by in-service respiratory complaints. The VA medical opinion provider explained that he had reviewed the claims file and noted consideration of service treatment records. He discussed such records and the relevance of such records to his findings, to include chest X-rays and the lack of a finding of a chronic lower respiratory tract condition. He provided an in-depth discussion of the Veteran’s medical history, to include private treatment records and an explanation as to how he reached his conclusions, to include noting that the Veteran’s in-service acute bacterial pneumonia had been appropriately and timely addressed in service and had resolved at the time of separation. The examiner opined that there was no residual sequelae or chronic functional limitation following the in-service treatment. He also explained that private medical records did not demonstrate care for asthma or a chronic lower respiratory tract condition from the late-1980s or early-1990s. The examiner further noted that there was no chronic pulmonary condition requiring treatment by a physician documented from immediately following the Veteran’s military tenure. The Board finds that the VA medical opinion provider’s opinions are the most probative medical evidence of record as to whether the Veteran a respiratory disorder, to include had asthma or COPD, that began in service or is due to service. The provider specifically found that his in-service acute bacterial pneumonia had been addressed with timely and appropriately therapy and resolved with no residual sequelae or chronic functional limitation. Also, COPD, with a reactive airway component/asthma was not incurred on active duty and was less likely as not due to or the result of in-service acute bronchitis/pneumonic process. The Board has also considered whether service connection on a secondary basis is warranted. In a March 2019 private DBQ, Dr. K.L.M. reported diagnoses of asthma (May 12, 2015) and COPD (diagnosed April 2015), as well as, allergic rhinitis. She noted that “Severe asthma/COPD overlap syndrome worsened by allergic rhinitis requiring multiple medication to control.” She did not provide any explanation as to how she reached that opinion. The Board finds that the February and November 2020 VA medical opinion provider’s findings as to whether a respiratory disorder, other than allergic rhinitis, was caused or aggravated by allergic rhinitis to be most probative medical evidence of record, as he provided a more detailed and in-depth explanation as to how his opinions were reached. The provider specifically found that the Veteran’s COPD/asthma was less likely as not due to or the result of, nor aggravated beyond its natural progression by, the service-connected allergic rhinitis. As noted above, the VA medical opinion provider considered the claims file, to specifically include private medical records and DBQs and discussed the relevance of such evidence. He noted that though acute upper respiratory infections, most commonly viral, are a leading cause of COPD exacerbations, which can require the temporary intensification of drug therapy, including systemic corticosteroids, allergic rhinitis was not a known cause of COPD or asthma, nor can it aggravate such conditions beyond their natural progressions. The VA medical opinion provider also considered the claim as to such disorders being pathophysiologically linked and as comorbidities, to include review of the medial literature provided by the appellant in support of his claim. The examiner opined that exposure to allergens might symptomatically flare both the Veteran’s service connected allergic rhinitis and his lower respiratory tract “overlap syndrome,” but the exposure to the allergen trigger, rather than the presence of concurrent rhinitis that leads to lower respiratory tract symptoms. That is, the Veteran’s allergic rhinitis itself is not responsible for aggravating the Veteran’s reactive airway and his “asthma.” The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To the extent that the Veteran or his representative have argued that the claimed disorder was caused by service or developed secondary to the allergic rhinitis, the issue is medically complex, as it requires knowledge of the interaction between multiple systems in the body and the effects of multiple disorders. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Indeed, in the most recent written brief presentation, the Veteran’s representative argued as to the difficulty in diagnosing allergic rhinitis by medical professionals, indicating the complexity of providing just a diagnosis, much less an etiology opinion. Furthermore, “competent medical evidence” is evidence that is provided by a person qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). Neither the Veteran nor his representative has indicated any such medical education, training, nor experience. The Board finds such lay opinions are not competent and are not as probative as the 2020 VA medical opinions. The Court of Appeals for Veterans Claims (Court) has held that, in general, information contained within medical articles and treatise evidence is too abstract to prove the nexus element of a service-connection claim. The Court has also held that treatises “can provide important support when combined with an opinion of a medical professional.” Sacks v. West, 11 Vet. App. 314, 316-17 (1998). Furthermore, a medical article or treatise, standing alone, may provide sufficient evidence of a causal connection when it “discusses generic relationships with a degree of certainty” so that the causal connection is “based upon objective facts rather than on an unsubstantiated lay medical opinion.” Id. at 317. The Court, however, has also held that generic medical literature which does not apply medical principles regarding causation or etiology to the facts of an individual case does not provide competent evidence to establish the nexus element. See Libertine v. Brown, 9 Vet. App. 521, 523 (1996). In this case, such treatise evidence provided by the Veteran did not provide such a degree of certainty as to any sort of etiology opinion. Moreover, it was considered by the VA medical opinion provider. The VA medical opinion provider did not change his opinion as to the lack of a nexus. The VA medical opinion provider again considered the Veteran’s specific medical history in forming his opinion, which the Board finds to be more probative than general medical literature evidence. Additionally, in the January 2021 written brief presentation, the representative argued that the examiner stated in the 2019 medical opinion found that the service records specifically documented ruled out asthma while being treated for his upper respiratory conditions, and disputed such finding. Assuming that the representative meant the 2020 VA medical opinions, as there is no 2019 VA medical opinion, the Board finds that this is a mischaracterization of the VA medical opinion provider’s November 2020 opinion. He found that the Veteran’s evaluations for the lower respiratory tract complaints in service showed that no diagnosis of asthma was made at that time and that effectively a diagnosis of asthma was affirmatively excluded. The Veteran’s representative has also argued that there are strong links between allergic rhinitis and asthma and quoted that “Allergic rhinitis is a common disorder that is strongly linked to asthma and conjunctivitis. It is usually a long-standing condition that often goes undetected in the primary-care setting. The classic symptoms of the disorder are nasal congestion, nasal itch, rhinorrhea and sneezing. A thorough history, physical examination and allergen skin testing are important for establishing the diagnosis of allergic rhinitis.” https://aacijournal.biomedcentral.com/articles/10.1186/s13223-018-0280-7. Tb finds that an indication of “strongly linked” is not a finding of causation or aggravation of allergic rhinitis to asthma. Moreover, the question of establishing a diagnosis of allergic rhinitis is not at issue, which is the main focus of the quote as to when such a diagnosis is made. The Veteran is already service connected for allergic rhinitis. Such argument is not supportive as to the question of whether asthma should have been diagnosed in service, as the quote applied to allergic rhinitis. In contrast, the 2020 VA medical opinion provider specifically noted consideration of the testing, evaluations, and treatments that the Veteran had received in service and his post-service medical records and history to establish whether a respiratory diagnosis was missed in service, and the VA medical opinion provider specifically found that to not be the case as asthma developed years after service. The Board finds that the representative’s article is not as probative as the 2020 VA medical opinions that are specific to the Veteran’s physical history and condition. The Veteran’s representative also claimed, “it must be pointed out that this veteran was active duty for many years, performing his duties in a ‘combat’ as well as in a ‘common’ (primarily this category) environment which would have exposed…to the common environmental allergens. To completely discount the number of years this veteran served in ‘common’ environment is inappropriate.” The Board notes, however, the VA medical opinion provider did not discount the number of years that the Veteran was exposed to any environmental allergens in service. Rather, he explained “that is the Veteran’s allergic rhinitis itself is NOT responsible for aggravating the Veteran’s reactive airway, his asthma.” Furthermore, as noted above, the examiner made clear that the Veteran did not have asthma in service when he was exposed to any environmental allergens, either “combat” or “common,” but rather that his respiratory disorder (other than service-connected allergic rhinitis) developed years after his separation from service. The representative also claimed that some of the “Medical Treatment Records document has seasonal asthma or asthma (dated April 8, 2019, page 10 & 140 of 149) which likely corresponds which his service connected allergic rhinitis.” The Board notes that the actual diagnosis of seasonal asthma is questionable. The DBQs provided by the Veteran do not provide such a diagnosis, though some private medical records received noted as received in April 2019 (but actually created and dated in the years prior to the 2019 DBQs and after the 2016 DBQs) did indicate such a diagnosis. Regardless, as explained above, the 2020 VA medical opinion provider provided the most in-depth explanation as to why the Veteran’s claimed respiratory disorder was not caused or aggravated by the service-connected allergic rhinitis. The Board finds such medical explanation by a competent medical profession to be more probative than the lay medical opinion of the Veteran’s representative. The Board notes that the private medical records noting seasonal asthma did not provide any etiology opinion as to the cause of such asthma or find that it was aggravated by allergic rhinitis. The Board finds that the most probative medical opinions of record to address the claim are made by the VA medical opinion provider in February 2020 and November 2020. Such opinions were more in-depth and relied on an accurate review of the medical history specific to the Veteran. In contrast, the private medical opinions provided were generally speculative or did not provide an explanation as to how such medical opinions were reached. Moreover, the lay opinions made by the Veteran and his representative are not as competent or probative as a medical opinion made by the VA physician. Also, the general medical treatise evidence provided by the Veteran and/or his representative is not as probative as the medical opinion by the VA physician, who also considered such treatise evidence and weighed it against the Veteran’s specific medical history. As the preponderance of the most probative medical evidence is against the claim, the benefit of the doubt rule does not apply. Service connection for a respiratory disorder, other than the already service-connected allergic rhinitis, is denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lindio 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.