Citation Nr: 21032637 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 14-17 250 DATE: May 27, 2021 ORDER Entitlement to service connection for asthma is denied. FINDINGS OF FACT 1. The Veteran's asthma was not noted on his service entrance examination, but the evidence shows it clearly and unmistakable pre-existed service and clearly and unmistakably was not aggravated beyond the natural progress of the disease during service. 2. Other than bilateral pulmonary nodules, which has already been service connected, the Veteran has not had any other respiratory condition, to include constrictive bronchiolitis, at any point during the current claim and appeal. CONCLUSION OF LAW The criteria for entitlement to service connection for asthma have not been met. 38 U.S.C. §§ 1110, 1131, 1135, 1137, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 2003 to October 2003 and from September 2004 to December 2010. He had active duty combat service in Iraq and Afghanistan and was awarded the Combat Action Badge, among other decorations, medals, badges, and campaign ribbons for his honorable service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) regional office (RO) located in Nashville, Tennessee. The matter has been remanded several times before the Board and was previously classified as entitlement to service connection for a "lung disorder" to encompass any and all respiratory conditions found during the pendency of this appeal. In a February 2019 rating decision, however, service connection was specifically granted for bilateral pulmonary nodules (claimed as lungs/basil nodes), effective December 22, 2010, the day after separation from service. As this represents a full grant of the appeal, this specific respiratory condition is no longer before the Board on appeal here. Rather, the claim was recharacterized as "service connection for asthma" and last remanded by the Board in February 2021 for further development, to include obtaining another nexus opinion to clarify whether there were any other respiratory conditions during the pendency of this appeal (other than "bilateral pulmonary nodules") and the likely nexus of any condition found. That development has been completed. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to service connection for asthma is denied. The Veteran contends that that he has asthma resulting from service, particularly from exposure to burn pits and dust during his service in Iraq and Afghanistan. The record also raises the issue of whether asthma pre-existed service and, if so, whether asthma was aggravated during service. Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for the aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of a current disability, an in-service incurrence or aggravation of an injury or disease, and a nexus between the claimed in-service injury or disease and the current disability. See Hickson v. West, 12 Vet.App. 247, 253 (1999). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination. 38 U.S.C. § 1111. In this case, the Board notes that the Veteran's April 2002 pre-enlistment examination does not indicate any respiratory abnormalities, nor does it note asthma specifically. Where, as here, no preexisting condition is noted upon entry into service, the Veteran is presumed sound. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The burden then falls on VA to rebut the presumption of soundness by: (1) clear and unmistakable evidence that the Veteran's disability preexisted service; and (2) clear and unmistakable evidence that the condition was not aggravated by service. Wagner, 370 F.3d at 1096. For reasons outlined below, the Board finds the Veteran's asthma clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated by service. Thus, service connection is not warranted here. With regard to the first prong, although not listed on his entrance examination, the Board finds there is clear and unmistakable evidence that the Veteran's asthma began in childhood. An October 2010 Social Security Administration (SSA) disability determination examination reflects that the Veteran himself conceded that he had asthma as a child. A March 2012 private treatment record documents the Veteran's reports of a year-long history of dyspnea with a history of childhood allergic asthma, triggered primarily by cats. In March 2021 a VA examiner concluded that asthma clearly and unmistakably pre-existed service based both on the examiner's review of the record (citing, for one the March 2012 private treatment record) and the Veteran's clinical presentation of his asthma. Thus, given the Veteran's own concession, the private treatment records, and the March 2021 VA examiner's opinion, the Board concludes there is clear and unmistakable evidence sufficient to show the Veteran's asthma existed since childhood and, therefore, clearly and unmistakably pre-existed service. With regard to the second prong, the Board further finds clear and unmistakable evidence that the Veteran's pre-existing asthma was not aggravated in service. The Veteran's service treatment record did not indicate complaints, treatment, or diagnosis of asthma specifically. In fact, although the Veteran contends he has a respiratory condition due to inhalation of dust and burn pits related to his deployment in Southwest Asia, the Board finds significant that his actual July 2005 post-deployment assessments show no such complaints related to respiratory ailments. The Veteran denied difficulties breathing or any lung-related issues at that time. Rather, service treatment records document impressions of multiple basilar lung nodules (which the Veteran has already been service-connected for). See October 2005 Physical Evaluation Board (PEB) and January 2010 CT scan. It is important to emphasize that these basilar lung nodules documented in 2005 and 2010 service treatment records were consistently characterized as "low risk," "small," and "benign." A January 2010 CT of the chest, for example, noted the nodules were smaller than 4mm each and therefore no further follow-up was necessary as any malignancy was considered "low risk." The Veteran was also provided a pre-discharge VA examination in November 2010 and, at that time, the examiner found no pathology warranting any lung related diagnosis. After service, an April 2011 VA examination notes that the Veteran was having progressively worse breathing difficulties and reported having had asthma attacks 3 or more times per week. A September 2011 VA examination documents a history of shortness of breath attributable to asthma in beginning early 2011. The Veteran received another VA examination in August 2011. At that time, the examiner assessed asthma and pulmonary granulomas. The examiner opined that the pulmonary granulomas do not cause symptoms of shortness of breath or breathing difficulty. The examiner based their conclusion on the fact that the Veterans calcified granulomas areas are small and few and that granulomas of this type are almost always asymptomatic. A June 2012 private medical record documents that the Veteran reported shortness of breath following his last deployment in 2009. The Veteran also reported exposure to burn pits in service but noted that he was able to complete a 2-mile run in 15 minutes after his deployments. The examining physician noted that they first began treating the Veteran in May 2012, at which time pulmonary function tests were normal, although two 4 mm. nodules were noted in the bases of each lung on HRCT. The physician felt that the Veterans presentation was concerning for constrictive bronchiolitis. In this regard, the physician remarked that the Veteran had a variety of exposures during service and did not begin having symptoms until after being asymptomatic in theater. The physician concluded that they "had strong index of suspicion that [the Veteran] has constrictive bronchiolitis based on the patterns of his presentation, the findings on his cardiopulmonary test and the small nodules on HRCT which are associated with constrictive bronchiolitis." The physician and the Veteran discussed a biopsy to confirm a diagnosis of constrictive bronchiolitis; however, the physician recommended against having the biopsy due to health concerns. The physician "recommended that we consider [the Veteran] as having constrictive bronchiolitis based on his exposures, presentation and risk of undergoing a confirmatory surgical biopsy." VA examination in February 2013 resulted in assessment of asthma and pulmonary nodules. The Veteran, however, denied having asthma, and reported that he only had problems around cats and dogs. He asserted that the scattered granuloma, which were asymptomatic, were the cause of his respiratory problems. VA obtained a medical opinion in November 2018 to address the lung nodules and if they had any etiological relationship to asthma. The examiner noted that the service records reflected the presence of pulmonary nodules by way of a CT scan in noted as very tiny non-calcified granulomas. The examiner remarked that the nodules were stable in April 2013. The examiner noted that small pulmonary nodules are common findings in healthy adults, followed by serial CT scans, that did not require any treatment absent any progression. In terms of al relationship to asthma, the examiner noted that there was no objective medical or scientific evidence that the pulmonary nodules caused or aggravated asthma. The examiner also remarked that there is no objective medical or scientific evidence that exposures to dust storms and burn pits could cause or aggravate the pulmonary nodules or asthma. VA obtained another medical opinion in March 2021. Based on a review of the record and with consideration of the Veteran's reports of exposures from burn pits and dust storms the VA examiner concluded that the Veteran's asthma was clearly and unmistakably not aggravated beyond its natural progression in service, reasoning that the Veteran had "no significant respiratory injury/illness in service that would be anticipated to cause a permanent aggravation" beyond normal progression. The examiner also concluded, based on a January 2012 methacholine challenge test, that the Veteran's symptoms were consistent with childhood asthma. Thus, based on the evidence outlined above, the Board finds the Veteran's asthma was also clearly and unmistakably not aggravated in service. For these reasons, the Board finds the presumption of soundness has been rebutted. The Board has also considered whether the Veteran has any other lung condition warranting service connection. Again, the Veteran has already been service connected for bilateral pulmonary nodules. The Board acknowledges the private assessment of constricting bronchiolitis but affords this assessment less probative value than the March 2021 VA examiner's opinion. The private treatment records first indicating constricting bronchiolitis in 2012 do not definitively assess the condition. The records note that the impression of constricting bronchiolitis should be confirmed by biopsy, but that a biopsy could not be performed without unnecessary risk to the Veteran. Notably, the private assessment was not based upon a review of the claims file or an adequate history. The assessment fails to consider the Veteran's asthma. The private examiner indicated the Veteran first became symptomatic during service, but in contrast the Veteran denied any symptoms during service and, indeed, a November 2010 VA examination conducted prior to separation from service, showed no pathology warranting any lung-related diagnosis. However, the March 2021 VA examiner considered the entire history, including the service treatment records, the Veteran's medical history and his lay contentions. The examiner ruled out an assessment of constricting bronchiolitis, not only based upon the lack of a biopsy, but also upon the fact that the Veteran's history, presentation, and symptoms were consistent with his asthma. The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). As is true with any piece of evidence, the credibility and weight to be attached to evidence are within the province of the Board as adjudicators. See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). Thus, the Board concludes that it is less likely than not that the Veteran has had an assessment of constrictive bronchiolitis during the present claim and appeal and service connection for constrictive bronchiolitis is not warranted. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph R. Keselyak, 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.