Citation Nr: 21031597 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-36 751 DATE: May 24, 2021 ORDER Entitlement to service connection for a pulmonary respiratory disorder, to specifically include recurrent bronchitis, is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his pulmonary respiratory disorder incurred in active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a pulmonary respiratory disorder, to include recurrent bronchitis, have been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1959 to January 1963. He also served in the U.S. Coast Guard Reserves from September 1985 to September 2002. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of the hearing has been associated with the record. In August 2019, the Board remanded the claim for additional evidentiary development. The matter has been returned to the Board for adjudication. As a final initial matter, while the Veteran submitted evidence after issuance of the December 2020 supplemental statement of the case, waiver of Agency of Original Jurisdiction (AOJ) consideration is not required as the appeal was perfected in July 2016. Entitlement to service connection for a pulmonary respiratory disorder, to include recurrent bronchitis The Veteran contends that his recurrent bronchitis began during active military service. Specifically, the Veteran asserts that his first bout of bronchitis and pneumonia was during active duty service and insists that he had never suffered from these disorders prior to service. See April 2019 Board hearing transcript. He also maintains that his respiratory disorders were aggravated by exposure to "toxic chemical agents tear gas/CS in the gas chamber training at West Point and again in the gas chamber training at Ft Knox 6 mos." See May 2014 statement from Veteran. Furthermore, he contends that "exposure to a toxic irritant was the deployment of OC/CN against us in AD/ADT ca Dec 97 at USCG Training Center Yorktown, VA." Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 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)). 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. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Turning to the evidence of record, the December 2020 VA examiner found that the Veteran has a diagnosis of recurrent bronchitis. Accordingly, the first element of service connection is met. Turning to the second element of service connection, the Veteran contends that he had a one-time bronchitis episode during service in the 1960s and was treated at Fort Knox. The Board notes that the Veteran's service treatment records (STRs) from his 1959 to 1963 service contains no record of a pulmonary respiratory disorder, and none was found on entry into Cadet training in 1959 or the 1960 enlistment into the Army, nor during respective separation examinations. Nevertheless, the Veteran subsequently served in the U.S. Coast Guard Reserves and STRs from the 1990s document treatment for bronchitis and pneumonia while on active duty in the Reserves. See also 38 C.F.R. § 3.6. Regarding the last element, nexus, the Board finds that the evidence of record is at least in equipoise. Following the August 2019 Board remand, the Veteran was afforded a VA examination in December 2020. The VA examiner noted that the Veteran reported a one-time bronchitis episode during service in the 1960s and that he would get intermittent bronchitis with phlegm in the 1960s, 1980s, 1990s, until present, although records for such were not found in the Veteran's claims file. Additionally, the VA examiner noted that the Veteran has documented history of asthma as a child. Furthermore, while the examiner noted that the Veteran has documented post-service medical records of pneumonia in 1991, as the Veteran's STRs are silent for continuous treatment and care for any pulmonary disorder during service from 1960-1963, it is less likely as not that any pulmonary respiratory disorder was incurred during active military service. However, the VA examiner did not consider whether the Veteran's recurrent bronchitis is related to his documented treatment for bronchitis and pneumonia while on active duty in the Reserves during the 1990s. Additionally, in February 2021, the Veteran submitted private treatment records documenting treatment for bronchitis and pneumonia from 1984 to 1990, which were not considered by the December 2020 VA examiner. Furthermore, the Veteran submitted a private medical opinion from a physician who treated the Veteran on occasions in the 1980s for bronchitis. See February 2021 private medical opinion. The private examiner noted the Veteran's reports of experiencing cough, congestion, exudate, sore and inflamed throat, and a fever during service in February 1960. The examiner also noted that the Veteran did not have a history of bronchitis prior to 1960. Following review of the Veteran's Army STRs, as well as private medical records, to specifically include those from Dr. P.D.'s office, where the examiner treated the Veteran in the 1980s, the private examiner found that the Veteran had been correctly diagnosed with recurrent bronchitis. Additionally, as the Veteran had no identifiable history of recurrent bronchitis prior to February 1960, the private examiner found that it is more likely than not that the Veteran's subsequent crises and events of bronchitis are due to his Army military service. The Board finds the February 2021 private opinion to be probative in providing a comprehensive analysis of the Veteran's recurrent bronchitis, to include a positive nexus opinion etiologically connecting such pulmonary respiratory disorder to his active service. The private opinion is comprehensive in rationale and based on the knowledge of a physician who has treated the Veteran's pulmonary respiratory disorder in the past. In this case, there is positive and negative evidence of record. Thus, the Board finds that upon review of the record, to include STRs, VA treatment records, lay statements, and VA and private examination reports, the evidence is at least in equipoise as to whether the Veteran's recurrent bronchitis was caused by or is etiologically related to active service. Accordingly, the Board will resolve doubt in favor of the Veteran and grant service connection for a pulmonary respiratory disorder, to specifically include recurrent bronchitis. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appeal is granted. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. B. Smith, 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.