Citation Nr: 21011803 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-28 573 DATE: March 2, 2021 ORDER Entitlement to service connection for a respiratory disability, to include asthma and chronic obstructive pulmonary disease (COPD), is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s respiratory disability originated in service. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2005 to September 2005, July 2006 to February 2008, and from August 2009 to August 2010. He also had periods of active duty for training and inactive duty for training with the Indiana Army National Guard from February 2005 to January 2012. The Veteran was awarded with a Bronze Star, Combat Infantryman Badge (CIB), and a Purple Heart medal. This matter is before the Board of Veterans’ Appeal (Board) on appeal from a September 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Board remanded the appeal for further development. Entitlement to service connection for a respiratory disability is granted. Service connection will generally be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active 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). To establish service connection on a direct basis, the evidence must show (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 252 (1999). Service connection may also be presumed for chronic diseases, enumerated under 38 C.F.R. § 3.309 (a), which are presumptively linked to service based upon continuity of symptomatology. See 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a). The Secretary shall consider all information and evidence of record in a case before the Board with respect to benefits under laws administered by the Secretary. 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 claimant. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that his respiratory disorder is etiologically related to his active service. Specifically, he asserts that he developed a respiratory disorder as a result of chlorine gas exposure from an IED explosion. Service treatment records (STRs) note that the Veteran was injured by an IED blast in April 2007. There is no indication that the Veteran suffered from any respiratory disorder at that time. However, there is evidence that the Veteran suffered from a concussion and experienced memory loss. The separation examination was also silent for any complaints of a respiratory disorder. While the STRs do not show complaints of, or treatment for a respiratory disorder, the Veteran served in combat. Thus, VA must accept satisfactory lay or other evidence that is "consistent with the circumstances, conditions or hardships of such service." 38 U.S.C.A. § 1154 (b). This evidence serves as "sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such [combat] service." 38 U.S.C.A. § 1154 (b); 38 C.F.R § 3.304 (d). The combat presumption applies not only to combat injuries but also to the consequences of those injuries, at least in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012) (holding that the Board was required to apply the section 1154(b) presumption to both the Veteran's claimed acoustic trauma during service and the separate question of whether he suffered permanent hearing loss while on active duty). Thus, the assertion that the Veteran was injured and experienced respiratory distress due to multiple IEDs is presumed and found to be credible. Post-service, the Veteran submitted a claim for service connection for COPD in December 2010, within 4 months from discharge from active duty. At a December 2010 General Medical examination, the Veteran reported that he was exposed to chlorine gas of an IED from a car bomb and that he did not have a face mask with him. He further reported that he had intermittent shortness of breath and that his eyes, nose, and lungs burned for three to four hours after exposure. He explained that he and the other soldiers doused each other with water, but the burning feeling continued. He stated he was short of breath even once he rested after the exposure. He was told by the TMC that there was no treatment. The examiner noted that the Veteran has a history of dyspnea, non-anginal chest pain, night sweats, and sleep apnea. The Veteran reported that he experiences non-anginal chest pain with shortness of breath. Upon a spirometry test, the examiner concluded that the study was most consistent with mild airway obstruction and with reversible airway obstruction. He further explained that obstruction lung disease would include asthma, bronchitis, emphysema, bronchiolitis, or bronchiectasis. The Veteran was then diagnosed with a chronic obstructive airway disease. The examiner also noted that the Veteran experienced a respiratory disease trauma in 2007, which was inhalation injury due to burning chlorine gas fumes exposure from IED. However, in a March 2011 VA addendum opinion, the examiner opined that the concentration of chlorine gas used in IEDs is not thought to be sufficient to cause ongoing respiratory issues. VA treatment records since the December 2010 VA examination report have consistently noted symptoms, complaints, treatments, and hospitalizations due to the Veteran’s respiratory disorders. The Veteran was hospitalized in June 2015 and December 2015. He was diagnosed with COPD in December 2015. An August 2016 pulmonary consultation report noted that the Veteran had a long history of wheezing and asthma since being involved in a car bomb explosion with chlorine gas in the Middle East. The Veteran explained that he had dyspnea and wheezing since about a week after the car bomb explosion. In November 2016, the Veteran was diagnosed with interstitial lung disease (ILD) secondary to chlorine gas exposure. The examiner claimed that the ILD was most likely from exposure to some chemical agent during the Veteran’s tour of duty in the Middle East. In a November 2019 addendum opinion, the examiner opined that it was more likely than not that the Veteran’s chlorine gas exposure in the military impacted his asthma. The examiner continued to say that it was difficult to say whether asthma was caused by the exposure since asthma is a common condition. Having weighed the evidence both in support of and against the claim, the Board finds that service connection for a respiratory disorder is warranted. The evidence reflects an injury during service. The Veteran complained of, and was diagnosed with, a respiratory disability within months of discharge from active duty. Finally, several treatment providers and examiners have related the Veteran’s current respiratory disability to the IED blast in service. Accordingly, the Board resolves all reasonable doubt in favor of the Veteran and grants service connection for a respiratory disability. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 49. Roya Bahrami Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Imam, 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.