Citation Nr: 21026114 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 15-46 117 DATE: April 29, 2021 ORDER Entitlement to service connection for intrinsic asthma is denied. Entitlement to service connection for acute respiratory distress syndrome (ARDS) is denied. Entitlement to service connection for depression is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's asthma began during active service or is otherwise related to an in-service injury or disease. 2. The Veteran’s ARDS was diagnosed, treated, and resolved following the Veteran’s discharge from active service, and the preponderance of the evidence reflects that the ARDS was not related to an in-service injury, event, or illness. 3. The preponderance of the evidence is against finding that the Veteran's current depression began in service or is otherwise related to his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for intrinsic asthma have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for ARDS have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for depression have not been 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 honorably on active duty from February 1994 to August 1994, with additional periods of Reserves service. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified in March 2019 before a Veterans Law Judge at a video conference hearing and a hearing transcript is of record. The Veterans Law Judge who conducted the March 2019 hearing is no longer employed at the Board. In a February 2021 letter, the Veteran was informed that the Veterans Law Judge who conducted the March 2019 hearing was no longer employed at the Board, was given the opportunity to request another hearing and was informed that the Board would assume that he did not want another hearing if a response was not received within 30 days. The Veteran did not respond to this letter and the Board will proceed accordingly. The Board notes that this matter was previously before the Board in August 2019, at which time it was remanded to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. The Board finds that there has been substantial compliance with the August 2019 remand directives, and as such, will proceed with appellate review. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection will be granted for 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. Generally, the three-element test for service connection requires: (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). In adjudicating the merits of such claims, reasonable doubt that exists because of an approximate balance of positive and negative evidence concerning any point will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for intrinsic asthma is denied. The Veteran contends that his current asthma is related to his active duty service, to include exposure to jet fuel and solvents. The current medical evidence reveals a diagnosis of intrinsic asthma in November 2012. Thus, the threshold question of a current disability is met. Turning to the second element of service connection, the Veteran’s service treatment records (STRs) do not contain complaints of respiratory distress or treatment for asthma or any other related respiratory conditions during his active duty service, nor during his Reserve service. Private treatment records following active service reflect that the Veteran sought treatment from a pulmonologist in 2012, complaining of shortness of breath upon any type of exertion. The Veteran also reported coughing and wheezing. The Veteran indicated that he was previously using supplemental oxygen at night until he was diagnosed with sleep apnea and prescribed a CPAP machine. The private pulmonologist indicated that based on testing and presenting, the Veteran had intrinsic asthma, and was prescribed an inhaler. The Veteran had an examination for his condition in April 2016. The VA examiner indicated that the Veteran had a current diagnosis of asthma. The examiner noted that the Veteran’s asthma required the use of inhaled medications, including inhalational bronchodilator therapy and inhalation anti-inflammatory medication. The examiner opined that the Veteran's current asthma was less likely than not incurred in or caused by service. The examiner noted that there is no evidence that exposure to jet fuel solvents causes intrinsic asthma, nor is there any evidence that exposure to jet fuel solvents while the Veteran was on active duty aggravated his asthma beyond its natural progression. The Board, in its August 2019 opinion, found the April 2016 VA examiner’s opinion to be inadequate and remanded the matter to the AOJ for further development. In accordance with this remand, a new VA examination and opinion addressing etiology were obtained in January 2020. The January 2020 VA examiner noted that the Veteran has a history of tobacco use of 8-10 pk years. The Veteran reported during the examination that he quit smoking in 2007 or 2008. The Veteran also noted that he quit on and off several times, and that each time he resumed smoking, his breathing got worse. Regarding etiology of the Veteran’s asthma, the VA examiner opined that the Veteran’s condition was less likely than not incurred in or caused by an in-service injury, event, or illness. The VA examiner reasoned that “the Veteran’s intrinsic asthma was not diagnosed until 2012, which was long after his discharge from active duty. After thorough review of the STRs, this examiner cannot find evidence of breathing issues that occurred while on active duty. Intrinsic asthma is associated with things such as stress, anxiety, changes in the weather, and exercise. The Veteran notes that while he was smoking, his breathing was always worse and his breathing improved significantly during periods he abstained. When the Veteran was diagnosed by [private pulmonologist] in 2012, he gives an extensive history of the Veteran’s bicycle accident and subsequent pulmonary injury, but offers no speculation on the role any other exposures may have led to the development of his asthma. Given that there is no documentation of breathing problems occurring when [the Veteran] was in contact with jet fuels and/or solvents, no argument can be made for the chemicals aggravating his asthma. In addition, he is no longer exposed to these chemicals, yet still claims mild exacerbations of his asthma.” It is acknowledged that the Veteran is competent to give evidence about his observable symptomatology, such as shortness of breath or wheezing and coughing. Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, the Board finds that the Veteran is competent and credible to report her current symptoms. However, while the Veteran believes that his asthma is related to his military service, to include exposure to jet fuels and solvents, he is not competent to provide a nexus opinion in this case. This issue is medically complex, and it requires knowledge of the development of asthma. Although lay persons are competent to provide opinions on some medical issues, the existence and etiology of the Veteran's asthma falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372 (2007). The findings of the January 2020 VA examination weigh heavily against the claim. The Board finds the January 2020 VA examiner's opinion to be highly probative because it clearly resolves the question of whether the Veteran's asthma is related to his time in service. The examiner considered the pertinent evidence of record and provided a well-supported rationale for his opinion. The examiner explained that there is no evidence of chronicity of complaints, symptoms, or care for any respiratory condition to include asthma or reactive airway disease since leaving service in 1994 until 2012. There are no other medical opinions of record to contradict this finding. Accordingly, the criteria for entitlement to service connection for asthma has not been established. The Board has considered the applicability of the benefit-of-the-doubt doctrine, however as the preponderance of the evidence is against the claim of entitlement to service connection for asthma, that doctrine is not applicable. 2. Entitlement to service connection for ARDS is denied. The Veteran seeks entitlement to service connection for acute respiratory distress syndrome (ARDS) as due to his military service, to include exposure to jet fuel and solvents. For the reasons that follow, the Board finds that service connection for ARDS is not warranted. The Veteran’s STRs do not contain complaints, treatment, or diagnoses for ARDS. The Veteran submitted private treatment records from 2003 which indicate that the Veteran was diagnosed with severe upper respiratory distress syndrome. The Veteran reported that he was riding a bicycle when the front wheel came off and he was thrown over the front of the bike, landing on his left side. The Veteran reported to the emergency room with abdominal pain. A CT scan revealed significant injury to his spleen. Subsequently, the Veteran underwent a splenectomy, and shortly after the surgery, the Veteran’s respiratory status began to deteriorate and he was transferred to the ICU, where he was intubated and required oxygen treatment for about one week, until his lungs began to recover. Regarding the ARDS, a treatment provider noted that “it is possible with his splinting and subtle radiographic changes on admission, he may have been developing pneumonia though that is not at all obvious. He has not had hypotension of a severity to be expected to produce ARDS, and I do not see any documentation of aspiration.” See private treatment records, receipt date 10/11/2013. Private treatment records from November 2012 reflect that the Veteran sought treatment for difficulty breathing. The Veteran reported during his initial consultation that he had an episode of respiratory failure and ARDS after a ruptured spleen, splenectomy, and broken ribs from a bicycle accident. The Veteran reported that he was in the ICU for three to four weeks. During the consultation, the Veteran reported current issues with shortness of breath, and never getting a full breath upon exertion. The Veteran also reported coughing and wheezing upon exertion. The private pulmonologist diagnosed the Veteran with intrinsic asthma, and noted that “his prior episode of ARDS may have minimal effects on his overall lung function[.]” The Veteran underwent a VA examination in April 2016. The VA examiner did not include ARDS in the respiratory condition diagnoses but did note that the Veteran has asthma. The Veteran reported during the examination that he experienced a bike accident in 2003, for which he was hospitalized with broken ribs. During his stay in the hospital, he reported that he developed ARDS, but recovered. The VA examiner noted that the Veteran was seen by a pulmonologist in November 2012, when he was first diagnosed with intrinsic asthma, and the pulmonologist indicated that the Veteran’s episode of ARDS had “minimal effects on his overall lung function.” Regarding etiology, the April 2016 VA examiner opined that the Veteran’s ARDS was less likely than not incurred in or caused by an in-service injury, event, or illness, including exposure to jet fuel and solvents. The VA examiner reasoned that “[e]xposure to jet fuel during active duty neither caused nor aggravated an episode of ARDS beyond its natural progression. [The Veteran’s] episode of ARDS, during a hospitalization for multiple traumas after a bike accident, was likely caused by blunt trauma to his thorax, causing rib fractures, and presumably, lung contusions. Further, the pulmonologist who diagnosed the Veteran’s asthma in 2012 felt he would have no permanent comprise of lung function due to the episode of ADRS, which generally resolves completely.” Pursuant to the Board’s August 2019 remand, an additional examination and opinion was obtained addressing the Veteran’s claimed ARDS. During the January 2020 VA examination, the Veteran was again diagnosed with asthma, but not ARDS. The Veteran reported that he developed ARDS after a bicycle accident where he experienced a splenic laceration, which occurred in 2003. The Veteran was not on active duty at this time. The Veteran also reported that he was not formally diagnosed with asthma until 2012, but noted difficulty breathing after the ARDS episode in 2003. Regarding etiology of the Veteran’s episode of ARDS, the VA examiner stated that the ARDS was “a clear result of the fractured ribs and pulmonary contusions incurred in a bike accident while he was not on active duty service.” The providers who have evaluated him for possible residuals of ARDS have not identified any residual of the ARDS diagnosed during service. The fact that ARDS was diagnosed and treated, in and of itself, sufficient evidence to establish that the Veteran has a current ARDS disability or residual for which service connection may be granted. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). A current disability means a disability shown by competent and credible evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). The Board has reviewed the medical records and has found no current diagnosis of ARDS. The only mention of ARDS was contemporaneous to the ARDS associated with his splenectomy following his post-service bicycle accident in 2003, or in his medical records as part of his medical history. Further, the VA examiner has determined that this is not a chronic disability. Moreover, while the Veteran is competent to report respiratory symptoms, he does not possess the medical expertise necessary to diagnose a chronic respiratory condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board finds the clinical evidence establishes that the Veteran's ARDS occurred following his active duty service and establishes that no residuals of that disorder have been medically identified. The criteria for service connection are not met where there is an absence of medical evidence that the Veteran currently has the disability for which service connection is being sought. As such, the claim must be denied. 3. Entitlement to service connection for depression is denied. The Veteran contends that he suffers from depression that is began during his active duty service and has persisted since then. See e.g., March 2019 Board hearing transcript. As explained below, although there is a current disability in that the Veteran has been diagnosed with depression during the appeal period, there is no evidence of an in-service event, illness or injury, nor a nexus between the Veteran’s current psychiatric disability and his active duty service. The Veteran's STRs are silent with respect to psychiatric symptoms, treatment, or diagnoses. Significantly, the Veteran’s records for his periods of Reserve service are also absent of any complaints regarding his current psychiatric condition. Following his active duty service, beginning in 2012, private treatment records reflect that the Veteran was being treated for chronic depression and placed on prescription medication including Prozac and Wellbutrin. During his private treatment, the Veteran reported that he has been “depressed all my life” and that his current depression has been chronically problematic since his childhood. The Veteran endorsed feelings of helplessness, hopelessness, irritability, negative rumination, severe anhedonia, low energy, and lack of motivation. See e.g., October 2013 private treatment records. The Veteran also began seeking substance abuse treatment from the VA during this time, and reported to a VA provider that he had experienced a history of abuse as a child, which has led to his depression, which in turn affect his substance abuse issues. See June 18, 2013 SATP note. During the March 2019 Board hearing, the Veteran testified that he did not have a diagnosis of depression prior to entering his active service, although he indicated to private treatment providers that he had been “depressed” all his life. The Veteran indicated that he believed his depression was aggravated during service and stated that “[t]here’s a lot of different reasons why,” but could not point to a specific incident. The Veteran also testified that he began taking medications for his psychiatric condition while he was in service and put on light duty “while I was on it, and then I got better and then I had to go off of it because, I couldn’t have that career field while being on the medicine[.]” The Veteran reported that he is not currently taking any medication for his depression and not receiving any mental health treatment, but that he still experiences symptoms. The Veteran stated that he stays home, doesn’t go shopping except for certain times of the day, and tries to avoid a lot of interaction with other people. The Veteran was afforded a VA examination for his depression in January 2020. The January 2020 VA examiner indicated that the Veteran does not currently have a mental disorder diagnosis. During the examination, the Veteran denied having any mental health issues or treatment prior to his military service. The Veteran also denied having any mental health treatment while on active duty. The Veteran reported that he has had some treatment for depression of the years but has not had any treatment for “seven or eight years.” Regarding symptoms, the Veteran reported that he does not feel he is currently depressed, but that he has some “residual sadness” but does not feel he needs treatment or medication. The Veteran denied experiencing anxiety, panic attacks, mania, hallucinations, sleep problems, irritability, impulsivity, paranoia, detachment or disconnectedness, or suicidal ideation. The VA examiner opined that “it is less likely as not that the Veteran has a diagnosable mental health or psychiatric condition that was incurred in or caused by his active duty service, or proximately due to or the result of his other service-connected conditions.” The VA examiner reasoned that “[t]he Veteran’s STRs do not document diagnosis or treatment for depression. While both the Veteran’s VA treatment records and non-government facility records show a history of depression several years ago, neither indicate a military etiology for his depression (treatment records contain references to childhood traumas, as mentioned above). This examiner did not find any corroborating material in the Veteran’s personnel records or STRs to support a military nexus. During the current examination, the Veteran reported his depression was ‘several years ago’ and indicated that he does not feel he currently suffers from depression. This examiner found no contemporary evidence of any current diagnosable psychiatric or mental health condition connected to the Veteran’s military service or secondary to his other service-connected conditions.” The Board gives the January 2020 VA psychologist's opinion great probative weight as it is based on a review of the pertinent records and provides support for its conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, there is not contrary evidence of record. While the Veteran believes he has depression that is related to his military service, he is not competent to provide such an opinion in this case. The issue is medically complex as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Further, the Veteran’s own statements contradict his contention that his depression is related to military service, as he himself has attributed his psychiatric issues to previous experiences during his childhood in the course of his mental health treatment. In view of the above, the weight of the evidence is against the claim for service connection for depression. Accordingly, the claim is denied. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. M. Lowman, 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.