Citation Nr: 21031808 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-49 917A DATE: May 24, 2021 ORDER Entitlement to service connection for asthma is granted. REMANDED Entitlement to service connection for sleep apnea to include as secondary to asthma is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his asthma is at least as likely as not related to his exposure to Chemical Agent Resistant Coating (CARC) paint in service. 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, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the Army from November 1985 to March 1986. He also served in the Army Reserve from March 1986 to October 1993. This matter is on appeal to the Board of Veterans' Appeals (the Board) from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified in a hearing before a Veterans Law Judge. A transcript of the hearing is in the evidence of record. In November 2020, the Veteran was informed the Judge who conducted his September 2019 hearing was no longer available, his appeal was reassigned to a new Veterans Law Judge, and he had the right to request another optional Board hearing. The Veteran declined another Board hearing. In January 2020, the Board remanded the Veteran's claims to verify his periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) from March 1986 to October 1993. Once this information was verified, his personnel and service treatment records from those periods should be requested. In an April 2020 letter, the Veteran was informed the National Personnel Records Center (NPRC) was contacted in February 2020 to obtain his outstanding service records. However, it was determined that those records could not be located and were therefore unavailable for review. All efforts to obtain this information were exhausted and it was determined that further attempts to obtain these records would be futile. The Veteran also reported contacting the Defense Finance and Accounting Service (DFAS) and was advised there was no information that could be sent to him. The RO has either obtained, or made sufficient efforts to obtain, personnel and treatment records relevant to the Veteran's claimed conditions. Therefore, there was substantial compliance, to the extent possible, with the January 2020 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that since the issuance of the August 2020 supplemental statement of the case (SSOC) additional records were added to the claims file. A disability benefits questionnaire (DBQ) and supplemental statement from J.C. (MD) were received in August 2020. These records were duplicative of documents already admitted to the record and considered by the RO. Therefore, the Board has concluded it may proceed with appellate consideration of these claims without prejudice to the Veteran. See 38 C.F.R. § 19.31. Applicable Law and Regulations Entitlement to VA compensation may be granted for a disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1131; 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) an 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. 38 U.S.C. § 1110; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Due consideration must be given to all pertinent medical and lay evidence in evaluating a claim for service connection for any disability. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Competent lay evidence is any evidence that does not require the proponent to have specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Lay statements can be considered competent to establish a diagnosis when the layperson is competent to identify the medical condition, reports a contemporaneous medical diagnosis, or describes symptoms which support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Once evidence is deemed competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465 (1994). When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Factual Background and Analysis The Veteran contends service connection for asthma is warranted due to in-service exposure to CARC paint. The Veteran has a current diagnosis of asthma. As such, the first Shedden element is met. The Veteran reported completing his basic training at Fort Knox and his advanced individual training at Fort Leonard Wood. After completing his training in 1986, he was station in Arlington Heights, Illinois. His military occupational specialty (MOS) was as a motor transport operator. He worked in the motor pool performing tasks such as taking tires off, test driving repaired vehicles, stripping paint and rust from vehicles, and repainting vehicles. He reported removing paint with wire brushes, sandpaper, and a grinder. Repainting was done using sprayers. He was never issued a breathing device or warned of the potential hazards. The Veteran reported developing a cough not long after arriving at Arlington Heights. In 1987, he was assigned to the 302nd Transportation Battalion NBC Decontamination Team. He was still working in the motor pool. The Veteran separated from the reserves in 1993 and reported being diagnosed with asthma in the early 1990s. His service treatment records show a normal clinical evaluation during his October 1985 enlistment examination. He denied asthma as well as ear, nose, and throat trouble. His military personnel records show him enlisting in October 1985 and immediately being ordered to initial active duty training. In March 1986, he was released from training and transferred back to his reserve unit. By August 1987, he was appointed to the 302nd Transportation Battalion NBC Decontamination Team. As discussed in detail above, there are limited service records available. The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Although the Veteran's CARC paint exposure was not documented in his service treatment records, the Board finds the Veteran to be a reliable historian. However, as to the etiology of a particular claimed disability, the issue of causation of a medical condition is a medical determination outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In June 2015, C.H., the Veteran's friend, provided a buddy statement. C.H. had been friends with the Veteran for 35 years. He recalled the Veteran was very active and athletic in school. He loved fishing and hunting, was on the track and football teams, and played tuba. After finishing his military training in Kentucky, he was stationed in Arlington Heights. C.H. soon noticed that the Veteran had developed a cough. The Veteran reported feeling like he was getting a cold or had allergies. However, C.H. reported his friend was rarely sick and had never had allergies before. The Veteran told C.H. that he spent a lot of time removing rust and helping to paint vehicles on base. C.H. opined the Veteran's respiratory problems were from stripping and painting the Army vehicles and equipment while in service. In June 2015, H.N., the Veteran's father, and R.N. the Veteran's mother, provided buddy statements. They reported the Veteran was active in school playing sports and tuba. They noticed when the Veteran came home on leave from service, he had a hacking cough, which the Veteran dismissed as allergies. They reported their son had no respiratory problems prior to his enlistment. The Veteran's parents inquired about the kind of work he was performing in service and were told he was stripping paint and rust as well as repainting vehicles. His breathing problems have gotten worse since his time in service. In September 2015, H.N. provided an addendum buddy statement. H.N. reported dropping his son off at work on more than one occasion while he was stationed at Arlington Heights. On several occasions he saw his son removing paint as well as repainting vehicles and equipment. H.N. once waited for over 30 minutes for the Veteran to finish working on a vehicle. He indicated not reporting this earlier because he was a civilian and did not think his report would be given serious consideration. In June 2015, C.C., the Veteran's uncle, provided a buddy statement. C.C. reported the Veteran was an active child. He joined the Army and was stationed in Arlington Heights. C.C. reported visiting the Veteran on base. He saw him driving a truck as well as sanding and painting different types of vehicles. The Veteran developed a cough and shortness of breath while stationed at Arlington Height. C.C. opined to witnessing his nephew's declining health over the years and his belief that it stemmed from his time in service. In July 2015, B.H., the Veteran's friend provided a buddy statement. B.H. reported knowing the Veteran since 1980. In school he played sports and they were in band as well as orchestra together. The Veteran went into the Army and after completing his training was sent to Arlington Heights. B.H. reported meeting with his friend on several occasions for lunch when he was working on base. B.H. saw what the Veteran was doing while stationed there including washing vehicles, removing paint and rust spots with a hand grinder, and repainting vehicles. He noticed that his friend developed a cough, which he opined was unusual. The Veteran never smoked and was always healthy. In June 2015, R.N. Jr., the Veteran's son, provided a buddy statement. R.N. reported when he was growing up his father was a very active person but had used an inhaler for as long as he could remember. R.N. described a steady decline in the Veteran's health over the years. He never smoked, and yet he could not walk without becoming short of breath and had passed out trying to mow the yard. The Veteran was the only family member with respiratory issues. In June 2015, S.N., the Veteran's wife, provided a buddy statement. She did not know the Veteran during his active service, but she has witnessed his daily struggles. Simple chores and sitting in the heat cause him to become short of breath. Long walks are out of the question for him. He requires the use of an inhaler and CPAP machine. R.N. Jr., S.N., C.H., H.N., R.N., C.C., and B.H. are competent and credible to report their observations and conversations with the Veteran. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Although the Veteran's exposure to CARC paint was not documented in his service treatment records, the Board finds the Veteran to be a reliable historian as to his report of an in-service exposure to CARC in the reserves and the reports of R.N. Jr., S.N., C.H., H.N., R.N., C.C., and B.H. to be probative. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Based on these credible reports, the second Shedden element has been met. Therefore, the question to be decided in the present appeal is whether the current asthma was caused by or the result of the Veteran's service. After resolving reasonable doubt in favor of the Veteran, the Board finds service connection for asthma is warranted. In July 2014, S.F. (MD), the Veteran's private provider, opined his asthma was more likely than not due to his MOS and exposure to chemicals that were harmful to his health during service. Doctor S.F.'s opinion was accorded little probative weight because only notes from the Veteran's chart were review and a supporting rationale was not provided. The Veteran provided articles, technical guides, and reports about CARC paint. The Army Motor Transport Units and Operations Field Manual 55-30 described the duties of the drivers. These duties included operating vehicles to move cargo or personnel between designated points, supervising the loading and securing of cargo, performing preventative maintenance, and the servicing of the vehicles. Servicing of the vehicle included among other things spot painting as required. An Olive-Drab article entitled "CARC and WD CARC Paint" reported CARC was used as a finishing coat on military combat equipment since 1985. The Clean Air Act and 1990 amendments restricted the amount of volatile organic compounds (VOCs) emitted during the application of surface coatings. This prompted the development of Water Dispersible Chemical Agent Resistant Coating (WD CARC) paint. In 1988, the US Army Safety Center produced a safety support pamphlet about CARC painting. This guide discussed required safety equipment and procedures for CARC painting operations. A small portion of individuals exposed to the compound hexamethylene diisocyanate (HDI) over a period of months to years might develop asthma. This occurred even at relatively low concentration levels over time. A VA public health article entitled "CARC Paint," noted inhaling the paint during painting and drying as well as dried paint during welding or sanding was harmful. Health problems associated with CARC paint included asthma. The Department of Defense (DOD) Office of the Inspector General (OIG) issued an August 1993 audit report on corrosion prevention for wheeled vehicle systems. The Army required use of CARC paint for all combat, combat-support, tactical wheeled vehicles, aircraft, and essential ground support equipment beginning in fiscal year 1985. Nearly all the vehicles originally painted by the manufacturer were later repainted in the field. The OIG audit report found extensive deterioration of CARC paint on high mobility multipurpose wheeled vehicles. Another DOD report discussed the risks of CARC paint exposure to Gulf War veterans. Inhaling high concentrations of some of the compounds and solvents in CARC could cause short-term symptoms such as coughing, shortness of breath, and watery eyes. Long-term exposure to CARC paint could lead to respiratory problems, including asthma. There was a risk of inhaling harmful fumes when painting with a brush or roller, and spray painting significantly increased that risk. Material safety data sheet "MIL-DTL-53039D" provided the ingredients of CARC paint. Exposure reportedly caused lung damage, including decreased lung function, which might be permanent. Technical Guide 144 "Guide for Controlling Health Hazards in Painting Operations: Respiratory Protection Requirements" was issued in December 2012. The guide noted early formulations of CARC paint were solvent based and contained lead and hexavalent chromium. In response to more stringent health and environmental regulations, WD CARC paint was developed. Although spot painting generally involved a smaller total surface area the use of personal protected equipment (PPE) safety precautions as well as disposal procedures are applicable. The use of air purifying respirators should be required when grinding and sanding. In October 2019, J.C. (MD), a private provider, opined the Veteran's current diagnosis of asthma was more likely than not caused by his exposure to the chemicals and solvents associated with CARC painting and grinding job duties while in service. Doctor J.C. noted the Veteran's military personnel records showed he was trained as a motor transport operator. Field Manual 55-30 described his job duties as including corrosion removal and spot painting. The material safety data sheet "MIL-DTL-53039D" provided the ingredients of CARC paint and discussed the hazards associated with exposure were asthma to permanent lung damage. The Mayo Clinic newsletter regarding CARC paint also found there was a danger of developing asthma and permanent lung damage associated with exposure. Doctor J.C. noted audit report 93-156 discussing the Army's policy to use CARC paint beginning in 1985. However, by 2012 Technical Guide 144 from the US Army Public Health Command discussed the use of respiratory protection when grinding and sanding CARC paint. The guide also noted symptoms from harmful exposure to CARC paint could appear immediately or take longer to appear. These safety guidelines were put into effect after the Veteran's period of service, so he likely performed his duties unprotected. Furthermore, he had no family history of asthma. The Board considered the literature submitted by the Veteran but accords the opinion of Doctor J.C. more probative weight. Doctor J.C.'s opinion was accorded positive probative weight because it not only considered the literature provided by the Veteran but relied on facts and data relevant to the Veteran's history and provided a rationale for the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Having considered the credible lay reports and weighing the medical opinions of record, the Board resolves reasonable doubt in the Veteran's favor and finds service connection for his asthma warranted. REASONS FOR REMAND The Veteran contends service connection is warranted for obstructive sleep apnea to include as secondary to service-connected asthma. The Board finds that more development is necessary prior to final adjudication of the claims on appeal. In July 2014, S.F. (MD), a private provider, opined the Veteran was diagnosed with a sleep disorder. He had constriction of his airways due to complications from asthma. Doctor S.F. noted the Veteran's wife reported hearing him struggling to breathe in his sleep and constantly waking up with shortness of breath. He must sit up to sleep. Doctor S.F. opined the constriction of airways due to complications from asthma impacted his ability to work. This opinion did not address whether the Veteran's sleep disorder was due to his asthma or whether it had been aggravated beyond its natural progression by his asthma. Additionally, Doctor S.F. provided no rationale for the opinion. At the September 2019 hearing, the Veteran requested through his representative and was granted 90 days to submit additional medical opinions from his treating providers. In October 2019, J.C. (MD), a private provider, opined the Veteran was diagnosed with obstructive sleep apnea. Doctor J.C. noted the Veteran's wife reported hearing him struggling to breathe in his sleep and waking up with shortness of breath. He was using a CPAP machine daily. Doctor J.C. opined that having reviewed the medical records and service records there was a connection between the Veteran's duty in service and his current symptoms. The constriction of his airways was due to complications from asthma, which impacted his ability to work. It is not clear if the examiner is opining to a direct nexus between the Veteran's sleep apnea and his in-service exposure to CARC paint, or that his sleep apnea was the result of the constriction of his airways due to his asthma. The threshold for finding a link between current disability and disease or injury in service is low. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation claims, the VA must provide a medical examination when there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. However, there is insufficient competent medical evidence on file for the VA to make a decision on the claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Accordingly, the Board finds that a remand is necessary for a VA examination to determine the nature and etiology of his sleep apnea. The matters are REMANDED for the following action: 1. Obtain and associate any outstanding VA and non-VA treatment records with the claims file. 2. Schedule the Veteran for a VA examination of his obstructive sleep apnea. (a.) The reviewing clinician is asked to opine on the following: If it is at least as likely as not that his obstructive sleep apnea had its onset in service or was otherwise etiologically related to any event or circumstance of his service. If it is at least as likely as not that his current obstructive sleep apnea was caused or aggravated by his service-connected asthma. If aggravation is found, the examiner should state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record as well as the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The claims file should be forwarded to an appropriately qualified clinician. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. The examination report must include a notation that this record review took place. 3. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded the opportunity to respond. Thereafter, the case should be returned to the Board for further consideration. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Byers 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.