Citation Nr: 21011297 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-24 661A DATE: March 1, 2021 ORDER Entitlement to service connection for a respiratory disorder, to include asthma, is granted. FINDING OF FACT The Veteran’s asthma is related to his active duty military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory disorder, to include asthma, have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1986 to March 1988; November 1990 to May 1991; July 1991 to January 2000; February 2003 to April 2004; and March 2008 to April 2009. In July 2018, the Board remanded the above issue for additional development, specifically to obtain a VA opinion on the etiology of the Veteran’s asthma. VA opinions were obtained in February 2019 and May 2020. While the Board finds that aspects of these opinions are not adequate, in light of the grant of benefits herein, there is no harm to the Veteran in the Board’s adjudication of the claim. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish entitlement to service-connected compensation benefits, a veteran must show: “(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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service 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). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. History provided by the veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. §§ 3.304 (b)(1); Paulson, 7 Vet. App. at 470; Crowe v. Brown, 7 Vet. App. 238, 246 (1995). In cases where the presumption of soundness attaches, the burden shifts to the Secretary to show by clear and unmistakable evidence that: “(1) a disease or injury existed prior to service; and (2) the disease or injury was not aggravated by service.” Patrick v. Shinseki, 668 F.3d 1325 (Fed. Cir. 2011) (citing Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (emphasis added). The second prong of the presumption of soundness is rebutted if there is clear and unmistakable evidence either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition. Wagner, 370 F.3d at 1096; see also Quirin v. Shinseki, 22 Vet. App. at 397. Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that “clear and convincing” burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). It is an “onerous” evidentiary standard, requiring that the no-aggravation result be “undebatable.” Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)) and Vanerson, 12 Vet. App. at 258, 261; id. at 263 (Nebeker, C.J., concurring in part and dissenting in part). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096; 38 U.S.C. § 1153. Where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that “[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where 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). For veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306 (b). Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). 1. Entitlement to service connection for a respiratory disorder, to include asthma, is granted. The Veteran contends that his asthma is due to his military service. Specifically, the Veteran and his wife contend that his breathing problems started following his second tour of duty in Iraq during his period of active duty service from February 2003 to April 2004. See wife’s September 2006 correspondence; see also November 2013 VA Form 21-4138 Statement in Support of Claim; see also June 2012 Notice of Disagreement. At the outset, the Board notes that the November 2007 private treatment records as well as the February 2019 VA examiner noted the Veteran’s diagnosis of asthma. Therefore, the first element of service connection, a diagnosis, has been met. As to an in-service incurrence, the Veteran specifically contends that, during his deployment in Iraq from February 2003 to April 2004, he was exposed to toxic smoke from a fire at the Mishraq Sulfur Mining Company, which brought about his breathing problems. In support of his contention, the Veteran submitted evidence to corroborate his contention, including (1) an article relating to the June 2003 fire at the Mishraq Sulfur Mining Company that caused smoke plume, (2) a November 2003 memorandum noting that the Veteran was exposed to sulfur smoke from the June 2003 fire, (3) an April 2010 VA memorandum indicating exposure of soldiers deployed in Iraq to numerous environmental hazards, including exposure to the sulfur fire at Mishraq Sulfur Mining Company, and (4) an August 2014 article noting the risk of developing respiratory illnesses due to service in Iraq. The Board also notes that a February 2004 note in his STRs indicates the Veteran had difficulty breathing. While the evidence supports that the Veteran was exposed to sulfur smoke and other environmental hazards, the March 2004 Report of Medical History noted no breathing problems following his second deployment to Iraq. In addition, the September 2005 retention examination noted that the Veteran had no breathing issues or asthma. Therefore, service connection for asthma cannot be granted on the basis that the Veteran was exposed to sulfur smoke and other hazardous conditions while deployed in Iraq while in active duty service from February 2003 to April 2004, as there is no evidence of a diagnosis of asthma or a chronic breathing condition related to his smoke exposure in Iraq. The record shows that the Veteran was diagnosed with asthma in June 2007. An August 2007 Report of Medical History in his STRs notes the presence of asthma. Private treatment records show treatment for asthma in November and December 2007. All of this pre-dates the Veteran’s next period of active service from March 2008 to April 2009. The Board finds that this constitutes clear and unmistakable evidence that the Veteran’s asthma pre-existed his active service for this period. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. The question now turns to whether there is clear and unmistakable evidence that his asthma was not aggravated beyond its natural progression. Id. Reviewing the STRs for this period of active service, they show that the Veteran’s breathing symptoms worsened in April 2008, his March 2009 post-deployment notes states that he had symptoms of difficulty breathing during service, was put on a profile for light duty during the deployment as a result, and was still having symptoms at post deployment. Following the Veteran’s last deployment, in a May 2009 U.S. Army memorandum, a Physical Evaluation Board (PEB) noted that the Veteran has a diagnosis of asthma and uses inhaled anti-inflammatories. Given this evidence, the Board finds that there is no clear and unmistakable evidence that the Veteran’s asthma was not aggravated beyond its natural progression, rather, there was clear aggravation of his asthma during this period of active service from March 2008 to April 2009. Thus, an inservice incurrence of asthma has been established. The Board notes that the VA opinions in February 2010, February 2016 and 2019 did not find that asthma was aggravated during service, and the May 2020 opinion found that the Veteran’s asthma did not exist prior to service or in service; however, the Board finds these opinions inadequate with regard to aggravation and pre-existence of the Veteran’s asthma as they did not address and consider all the relevant medical evidence. The Board finds the February 2010, August 2016, and February 2019 VA opinions inadequate, as the VA examiners failed to consider the evidence showing respiratory issues throughout his last period of service. The May 2020 opinion is inadequate, as it did not address evidence in the record that indicates the Veteran has received treatment for asthma since June 2007. Having established a current disability and an inservice onset of asthma, the next question is a nexus. As to a nexus, the February 2019 VA examiner concluded that the Veteran’s asthma was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that Veteran has suffered from asthma, which was a chronic condition from June 2007, through his period of service and after. The February 2019 opinion is probative as to a nexus, because it is based on an accurate medical history, provides an explanation that contains clear conclusions and supporting data, and considered the evidence of treatment for sinus issues and other breathing issues since service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). (CONTINUED ON NEXT PAGE) As a nexus has been established, the preponderance of the evidence supports the Veteran’s service connection claim for asthma. Therefore, the claim is granted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. E. Grossman, 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.