Citation Nr: 21030475 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-26 679 DATE: May 19, 2021 ORDER Having received new and material evidence, the claim for service connection for asthma is reopened. Entitlement to service connection for asthma is granted. FINDING OF FACT The Veteran's asthma is related to his exposure to irritants from burn pits in Afghanistan and Iraq. CONCLUSION OF LAW The criteria for service connection for asthma 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 in the United States Army from May 2002 to January 2003, and from August 2006 to January 2008, with service in Afghanistan and in Iraq. In May 2021, the Veteran testified before the undersigned Veterans Law Judge in a Virtual Hearing. Of note, the issue of waiver for indebtedness is also on appeal before the Board, however, that issue will be decided in a separate decision. The Veteran previously submitted a claim of entitlement to service connection for asthma which was denied in a September 2015 rating decision on the basis that there was no nexus between the Veteran's asthma and his service. The September 2015 rating decision became final because the Veteran did not submit a Notice of Disagreement or new evidence in connection with the claims within the appeal period. See 38 C.F.R. § 3.156(b). In connection with the Veteran's claim to reopen, he submitted a positive nexus opinion in January 2017 regarding his asthma and exposure to burn pits in Afghanistan. Thus, the Board finds that new and material evidence has been received sufficient to reopen his previously denied claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Entitlement to service connection for asthma The Veteran asserts that his asthma is due to his exposure to burn pits and environmental toxins while serving in Afghanistan and Iraq. Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, 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' - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The nexus element may also be fulfilled by (1) a nexus opinion or (2) competent and credible evidence showing that the veteran has experienced frequent and persistent symptoms of the disease since service. 38 U.S.C. § 1154(a); 38 C.F.R. §§ 3.303(a), (d); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). As an initial matter, the Veteran has a diagnosis of asthma, see August 2015 VA examination. The Veteran' s initial claim was denied for lack of a positive nexus opinion in an August 2015 examination. The examiner noted that the Veteran's diagnosis was made years after his active duty service and provided a negative nexus opinion. In the rationale to support her opinion, the examiner wrote that, "NIH has completed years of clinical study since Veteran's returned from PGW1 and have found that asthma was not caused by potential exposure to environment of deployment of PGW." When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. For an opinion to be adequate, it must include consideration of the Veteran's statements, be based on accurate factual premises, and contain a rationale sufficient to support its conclusions. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). If an examiner does not consider the Veteran's history, complaints, and lay statements, any negative opinion is inadequate for rating purposes. See Dalton v. Nicholson, 21 Vet. App. 23 (2007); see also Nieves-Rodriguez, 22 Vet. App. 295 (2008) (explaining that a medical report without "a reasoned medical explanation" lacks probative value). Here, the examiner provided a conclusory rationale without any application to this Veteran, or his statements. As such, the Board finds this negative opinion is without probative value for adjudication purposes. The Board observes that there are two positive nexus opinions linking the Veteran's asthma to his service. In January 2017, a private examiner, Dr. D.M. noted the Veteran' diagnosis of asthma and wrote, Patient's diagnosis and exacerbation of asthma is as least as likely as not caused by his military service in Afghanistan and Iraq and specifically, [his] exposure to burn pits in those countries." The examiner also noted that the Veteran did not have any respiratory problems prior to deployment. In March 2020, Dr. A.M.C., a VA physician, wrote, "When he was in Afghanistan and Iraq for his tours of duty (1 year at a time), he was a combat photographer, and was exposed to the environments there. Thus, he likely did have irritant (and likely allergic) exposures while he was on his tours of duty." In his rationale, the physician noted that, "Asthma and allergic rhinitis are affected by the environment and exposures to allergens and irritants." The Board finds that the March 2020 VA examiner's opinion and the January 2017 examiner's opinion are highly probative as each presented the medical opinion of a competent expert, informed by review of the claims file, and presented with a rationale sufficient to support its conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that the probative evidence of record shows that the Veteran has a current diagnosis of asthma that is related to his in-service exposure to burn pit irritants and allergens, thus satisfying the elements for service connection; service connection for asthma is warranted. 38 C.F.R. § 3.303(a), (d). T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Nelson 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.