Citation Nr: 21029527 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-37 742 DATE: May 13, 2021 ORDER Entitlement to service connection for a respiratory disorder is granted. FINDING OF FACT The Veteran's respiratory disorder is related to his military service. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty service in the United States Army from September 1989 to June 1992, with service in Southwest Asia. In May 2020, the Board remanded the above issue to obtain another VA opinion, which was obtained in June 2020. The case has since returned to the Board for appellate review. 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, including organic diseases of the nervous system such as sensorineural hearing loss, 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). The Board also notes that service connection may be presumed for Persian Gulf Veterans' undiagnosed illnesses, medically unexplained chronic multisymptom illnesses, and any diagnosed illness that the Secretary of VA determines in regulations warrants a presumption of service connection. 38 U.S.C. § 1117(a); 38 C.F.R. § 3.317. However, as discussed in more detail below, as the Veteran has confirmed diagnoses of respiratory disorders, this provision does not apply here. 1. Entitlement to service connection for a respiratory disorder is granted. The Veteran contends that a current respiratory disorder is related to his exposure to burn pits and other contaminants during his service in Iraq. The Veteran's personnel records confirm his service in Southwest Asia from December 1990 to April 1991. First, as to a diagnosis, the Board notes that the Veteran has a diagnosis of asthma. Specifically, both the April 2016 and June 2020 VA examiners noted that the Veteran has a 2015 diagnosis of asthma. The evidence also suggests that the Veteran has diagnoses of COPD and bronchitis. Specifically, providers noted that the Veteran had COPD and constrictive bronchitis in a February 2016 VA treatment note, a June 2016 VA progress note, and an August 2016 statement by a private physician. In contrast, in June 2020, the VA examiner concluded that it was less likely that the Veteran has a diagnosis of bronchiolitis/COPD based on the CT scan results. The examiner noted that a high-resolution CT scan of the lungs were unremarkable. The examiner noted that the Veteran was thought to have bronchiolitis based on subjective complaints of shortness of breath. However, after reviewing the Veteran's medical records, the examiner concluded that there is no objective evidence of bronchiolitis/COPD, particularly on the CT scan. However, the June 2020 VA examiner also later stated that the Veteran's current clinical diagnosis of mild COPD/asthma is less likely related to the exposures in the Persian Gulf War. The examiner further opined that his COPD is at least as likely as not related to his chronic cigarette smoking, suggesting that the Veteran indeed has a diagnosis of COPD. Given the contradictions of the June 2020 VA opinion, the Board finds the June 2020 VA opinion inadequate as to a diagnosis. Given the evidence above, the Board finds that the Veteran has diagnoses of asthma, COPD, and bronchiolitis. Therefore, the first element of service connection, a diagnosis, has been met. Second, as to an in-service incurrence, as noted above, the Veteran contends that a current respiratory disorder is related to his exposure to burn pits and other contaminants during his service in Iraq. The Veteran's personnel records confirm his service in Southwest Asia from December 1990 to April 1991. As the Veteran's personnel records corroborate the Veteran's statements regarding his service in Iraq, the Board finds the Veteran's statements competent and credible. Therefore, given his statements regarding exposure to burn pits while in Iraq, the Board finds that the second element of service connection has been met. As to a nexus, the record contains positive and negative nexus evidence. The nexus evidence against the claim includes April 2016 and June 2020 VA opinions. In April 2016, the VA examiner opined that the Veteran's respiratory condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner concluded that, based on a thorough review of medical records, the Veteran's current diagnosis of asthma in 2015, more than two decades after military service in the Gulf War, is less likely than not related to the history of exposure to oil fires in 1990. The examiner reasoned that the Veteran did not have any documented symptoms in service or immediately after service. He did not seek any medical care from 1992-2010. The examiner noted that the Veteran's initial complaint of exertional dyspnea occurred until December 2012. The examiner also noted that the Veteran had quit smoking cigarettes one year ago. In June 2020, the VA examiner concluded that, based on a thorough review of medical records, the Veteran's current diagnosis of asthma, which was diagnosed in 2015 (more than two decades after military service in the Gulf War), is less likely than not related to the Veteran's exposure to oil fires in 1990. The examiner reasoned that the Veteran did not have any documented symptoms in service or immediately after service within one year after discharge. The VA examiner also noted that he did not seek any medical care from 1992-2010. The examiner noted that the Veteran's initial complaint of exertional dyspnea occurred in December 2012, 22 years after the Veteran's discharge from service. The evidence in favor of the claim includes opinions found in a February 2016 VA treatment note, a June 2016 VA note, and an August 2016 private treatment statement. Specifically, in a February 2016 VA treatment note, a physician stated that the Veteran had reactive airway disease, "likely service connected from Iraq War does not seem to be just asthma, rather it might be COPD with constrictive bronchiolitis related to his exposure." Moreover, in a June 2016 VA progress note, a physician stated that the Veteran has mixed obstructive and restrictive defects, "Likely constrictive bronchiolitis with COPD which is related to his service in Iraq and exposure to burn pits." In an August 2016 statement, a private physician opined that the Veteran was very likely to have constrictive bronchiolitis related to Gulf War exposure, although associated degree of COPD couldn't be ruled out given his history of smoking. The Board finds that the nexus evidence is in equipoise and that as a result, reasonable doubt goes in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Consequently, the Board finds that a nexus has been established. Accordingly, the preponderance of the evidence supports the Veteran's service connection claim for a respiratory disorder, identified as asthma, COPD and bronchiolitis, and the claim is granted. 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.