Citation Nr: 21012633 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 16-09 267 DATE: March 4, 2021 ORDER Entitlement to service connection for asthma is granted. FINDING OF FACT Resolving all doubt in favor of the Veteran, his asthma is etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for asthma have been met. 38 U.S.C. §§ 1110, 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 Marine Corps from May 1991 to August 1991, June 1992 to September 1992, January 2003 to August 2003, September 2004 to December 2004, January 2005 to January 2006, and February 2009 to June 2010, to include service in Southwest Asia. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Newark, New Jersey. Jurisdiction of this appeal is currently with the RO in Waco, Texas. In May 2019, the Board issued a decision denying entitlement to service connection for asthma. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Order, the Court granted a Joint Motion for Remand (JMR), the Court vacated and remanded the case to the Board for action consistent with the JMR. Service Connection - Asthma The Veteran seeks to establish service connection for asthma, to include as due to his service in Southwest Asia. Specifically, the Veteran states that he began to experience symptoms of asthma during his 2003 deployment and since. See VA Form 9, March 9, 2016. Additionally, the Veteran’s representative argues that the Veteran’s asthma is a diagnosed illness that is a medically unexplained chronic multisymptom illness (MUCMI), and service connection is warranted as the January 2019 VA examination opinion of record is inadequate. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, 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). Generally, to establish service connection 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). However, for the purpose of evaluating lay evidence, to include a veteran’s statements about his health conditions, competent evidence is “limited to that which the witness has actually observed, and is within the realm of his personal knowledge.” Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). For example, although a lay person is competent to report observable symptomatology of an injury or illness (such as pain or the visible flatness of his feet), a lay person is “not competent to opine as to medical etiology or render medical opinions.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Lay evidence may also include the Veteran’s reported history at the time of medical examination or treatment. The Veteran’s report of injury, history of symptoms, history of treatments, and current complaints made to the doctor are lay evidence. Such history and complaints are not transformed into medical evidence just because the Veteran tells them to a doctor who writes it down. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (ruling that “a bare transcription of a lay history is not transformed into ‘competent medical evidence’ merely because the transcriber happens to be a medical professional....”); Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (holding that a Veteran’s account, “filtered as it was through a layman’s sensibilities, of what a doctor purportedly said is simply too attenuated and inherently unreliable to constitute ‘medical’ evidence.”). In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 133537 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran’s service treatment records show the Veteran complained of asthma on several occasions, and denied asthma at other times. See Service Treatment Records (STRs), June 1991, June 1996, July 2003, July 2005, April 2006, May 2007, April 2008. Notably, the Veteran endorsed asthma in June 1991, during his first period of active service; denied asthma in July 2003, during his third period of active service; and denied asthma in July 2005, during his fifth period of active service. Additionally, in August 2005 the Veteran denied a chronic cough in his post-deployment health assessment, and a June 2010 separation examination from his sixth, and last period of active service, were normal with respect to his lung and chest. Post service treatment records confirm diagnosis of, and treatment for, asthma. Turning to the question of whether there is an etiological relationship between the Veteran’s asthma and service, the Board notes that the record contains three contradicting opinions which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (stating that the probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board will consider each of these opinions below. At a September 2013 VA examination, the examiner opined the Veteran’s asthma was more likely than not related to his active service. The examiner noted that the Veteran had a history of, and was treated in service, for asthmatic bronchitis many times. Therefore, the examiner found that “considering the condition started in service, it is as likely as not that his asthma is related to his service.” This opinion has clear conclusions and supporting data, as well as a reasoned medical explanation connecting the two. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Notably, the examiner noted the Veteran’s treatment for asthma, seasonal allergies, and shortness of breath during active service; as well as his lack of smoking history. This opinion is therefore afforded great probative weight. At an October 2013 VA examination, the examiner opined the Veteran’s asthma was less likely than not related to active service. In this regard, the examiner noted that the Veteran’s available service treatment records did not show complaints or treatment for any respiratory condition; there was no evidence of acute cardiopulmonary disease, with normal pulmonary function testing (PFT) results and no bronchodilator response. Therefore, the examiner opined it was less likely than not that the Veteran’s asthma was caused by or a result of exposure to environmental hazards in the Gulf. However, the October 2013 VA examiner did not adequately consider the Veteran’s complaints of asthma during service, specifically in June 1991, and his lay statements and contentions regarding the onset and continuity of his asthma symptoms following his 2003 deployment. Moreover, the October 2013 VA examiner relied on inaccurate facts, namely, that the Veteran did not complain of asthma during active service. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). Further, the October 2013 VA examiner failed to address the Veteran’s lack of smoking history, as noted in the September 2013 VA opinion. This opinion is therefore afforded little, if any, probative weight. Finally, at a January 2019 VA examination, the examiner opined the Veteran’s asthma was less likely than not as a result of active service. In this regard, the examiner noted that the Veteran reported asthma in service and that review of records showed no prior treatment for asthma or any chronic respiratory condition. Additionally, the January 2019 examiner noted there was “no evidence that [the Veteran] had any signs or symptoms of asthma, including recurrent dry coughing, especially at night, rhonchus, wheezing, chest tightness, or shortness of breath. Further, the January 2019 examiner noted that there was no evidence that any PFT results showed any reversible obstructive lung condition, and therefore there was no objective evidence that there were recurrent symptoms or a positive medical history of recurrent symptoms of asthma. Essentially, the January 2019 VA examination found there was no evidence in the STRs to support a diagnosis of asthma during active service. Therefore, the January 2019 VA examiner opined that it was less likely than not that the Veteran’s asthma either began during or was otherwise caused by the Veteran’s active service, to include his service in Southwest Asia. However, as noted by the Court, the January 2019 VA examiner’s opinion is insufficient because it is based on the absence of evidence of asthma in service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Additionally, the VA examiner again relied on inaccurate facts, namely, that the Veteran did not complain of asthma during active service; and did not adequately consider the Veteran’s complaints of asthma during service, specifically in June 1991, and his lay statements and contentions regarding the onset and continuity of his asthma symptoms following his 2003 deployment. Further, the January 2019 VA examiner failed to address the Veteran’s lack of smoking history, as noted in the September 2013 VA opinion. See Reonal v. Brown, supra. This opinion is therefore afforded little, if any, probative weight. (Continued on the next page)   In sum, the Veteran has competently and credibly reported symptoms of asthma that began during active service and have continued since; and the Veteran’s STRs indicate the Veteran complained of asthma in June 1991. The Veteran has a current diagnosis of asthma. There is no competent medical opinion of record against the claim. Rather, there is a probative VA opinion from September 2013 indicating the Veteran’s asthma is more likely than not as a result of his active service. Moreover, there is no sufficient basis for the Board to reject this supportive opinion and to further develop the claim. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant’s case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Accordingly, the Board finds that the preponderance of the evidence is for the claim and entitlement to service connection for asthma is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, 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.