Citation Nr: 21040171 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 15-14 699A DATE: July 2, 2021 ORDER Entitlement to service connection for a respiratory disorder, including asthma, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding the Veteran has a respiratory disorder that began during his service or that is otherwise related or attributable to his service. 2. Moreover, his asthma, which clearly and unmistakably preexisted his service, was not aggravated during or by his service meaning worsened beyond its natural progression. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for a respiratory disorder, including asthma. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 2002 to January 2006, including in Iraq between February 2004 and March 2005. This appeal to the Board of Veterans' Appeals (Board) is from a December 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that, in relevant part, denied the Veteran's claim of entitlement to service connection for a respiratory disorder, including asthma. The Board remanded this claim back to the RO in November 2018 and May 2020 for further development and consideration. Entitlement to service connection for a respiratory disorder, to include asthma, is denied. The Veteran attributes his respiratory disorder, including asthma, to his service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). According to VA regulation, every person employed in the active military, naval, or air service 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 the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or where evidence of medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C. §§ 1111, 1132. Only such conditions as are recorded in examination reports are considered as noted at enlistment. 38 C.F.R. § 3.304(b). See also Quirin v. Shinseki, 22 Vet. App. 390, 394, 396 (2009). A preexisting injury or disease will be considered to have been aggravated by active military service where there is an increase in disability during such service, unless there is a finding that the increase in disability is due to the natural progress of the disease. However, aggravation may not be conceded where the disability underwent no increase in severity during service based on all the evidence of record. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 Turning now to the relevant evidence, the Veteran was seen several times during service for complaints related to respiratory conditions. Service treatment records (STRs) show he was treated in an emergency room (ER) for what was diagnosed as acute bronchitis. Shortly after that ER visit in service, he presented with additional complaints of coughing and chest pain. During the Veteran's service, an evaluating physician noted an inconclusive impression that included "URI vs Allergies, rhinitis" and to rule out pharyngitis. A follow-up with a different physician, about a month after, noted a past medical history of asthma, the acute bronchitis diagnosis in the ER, and "suspect[ed]" reactive airway disease. In November 2002, he was seen for complaints of coughing and chest pain. In October 2003, he was seen in the ER for complaints of lightheadedness, dyspnea, malaise, nausea, and vomiting. His military service ended in January 2006. In 2014, treatment records show the Veteran "need[ed] to go to ER ASAP given concerns for ? [sic] pneumonia and acute worsening of asthma symptoms." The evaluating physician during this visit further noted that the Veteran needed to schedule regular follow-ups with a primary care physician. The Veteran was initially afforded a VA examination in September 2012. In the report of that evaluation, the examiner concluded the Veteran's asthma clearly had existed prior to his service, based on his medical records, which indicated a diagnosis of asthma at age 16. The examiner further indicated there was no evidence found to support permanent aggravation, but there was not any rationale, which is where most of the probative value of a medical opinion is derived. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Consequently, in November 2018, the Board remanded this claim for an addendum medical opinion concerning whether there was clear and unmistakable evidence that any currently diagnosed respiratory condition had existed prior to the Veteran's service and whether any pre-existing respiratory condition also clearly and unmistakably was not aggravated during or by his service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Failing that, an opinion also would be needed concerning whether there is any direct correlation between any current respiratory condition and his service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993). In July 2019, to this end, an addendum opinion was provided. This additional opinion also concluded the Veteran's asthma clearly and unmistakably predated his service, that there was no medical evidence of aggravation in his service treatment records (STRs), that the instance of bronchitis during his service was "likely" an exacerbation of asthma, and that "any currently diagnosed respiratory disorder" had its onset prior to service and, thus, was unrelated to service. As rationale, the examiner supplemented his conclusion with supporting medical evidence of record predating the Veteran's time in service and referenced the September 2012 VA examination report, providing a similar conclusion. However, while the July 2019 examination and opinion contained some rationale, the September 2012 VA examiner determined the Veteran never had any physician visits because of exacerbations, a fact relied on by reference in the July 2019 addendum opinion despite evidence in treatment records indicating the Veteran, for example, "need[ed] to go to ER ASAP given concerns for ? [sic] pneumonia and acute worsening of asthma symptoms." That determination was considered important as it may support whether the Veteran's asthma was permanently aggravated by his service again, meaning worsened beyond its natural progression. Thus, in the additional May 2020 remand, the Board pointed out that the medical opinions of record from September 2012 and July 2019 did not discuss the impact of the Veteran's aforementioned, documented physician visits, deeming both opinions inadequate and thus necessitating a third medical opinion. More specifically, the July 2019 addendum opinion in particular was noted to describe an in-service ER visit as an "episode" of bronchitis, a "likely" exacerbation of asthma, without discussion as to its severity. Further, the September 2012 and July 2019 VA examiners were found to have discussed the Veteran's asthma and associated bronchitis in isolation without reference to any other symptoms. The Board observed that the medical evidence of record shows several associated signs and symptoms including those referenced above in service, several treated conditions to include chronic airway obstruction, sinusitis, reversible airway disease, allergic rhinitis, and acute bronchitis, and one report of chronic obstructive pulmonary disease (COPD) during a sleep study describing the Veteran's past medical history. Another addendum opinion thus was provided in December 2020 addressing these issues. The Board finds that, when viewed together, the September 2021, July 2019 and December 2020 opinions are adequate for adjudication purposes. The December 2020 examiner, like the previous examiners, acknowledged the Veteran's history of asthma was noted in multiple places in his treatment records, both prior to and after his enlistment into the military. While not noted during his enlistment examination, this condition clearly and unmistakably preexisted his service. To wit, the Board sees that treatment records leading up to his enlistment indicate his history of asthma requiring a physician discussion with an Air Force recruiter and was referenced in his STRs during his service. Therefore, the remaining question is whether the Veteran's asthma, which clearly and unmistakably preexisted his service, was aggravated by his service, again, meaning worsened beyond its natural progression. Concerning this, the December 2020 examiner observed the Veteran had been diagnosed with acute bronchitis during service that, according to STRs, eventually resolved and was considered acute (meaning of brief duration and not chronic). The signs and symptoms associated with the Veteran's ER visit and follow-up appointments, including lightheadedness, dyspnea, malaise, nausea, and vomiting, were all attributed to the incidents of acute bronchitis noted in service. This is an extension to the July 2019 VA opinion in which the examiner explained that the Veteran's preexisting asthma was not aggravated beyond the natural progression of the disease because the episodes of bronchitis noted in the treatment records are considered a natural progression of asthma. Taken together, these opinions both account for the Veteran's symptoms, attribute them to a specific diagnosis, and provide sufficient rationale as to why the Veteran's preexisting asthma was not aggravated by his service. Gulf War Service In addition, the Veteran is a Persian Gulf War (PGW) Veteran for the purposes of 38 C.F.R. § 3.317. See 38 C.F.R. § 3.317(e)(1). He contends that his respiratory condition should be service connected as an undiagnosed illness. Service connection may be granted on a presumptive basis for a PGW Veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, which became manifest either during active service in the Southwest Asia Theater of operations during the PGW or to a degree of 10 percent or more not later than the date specified in 38 C.F.R. § 3.317(a)(1)(i) and which by history, physical examination, and laboratory tests cannot be attributed to any known diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). In claims based on qualifying chronic disability, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Laypersons are competent to report objective signs of illness. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); See Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465 (1994). A "qualifying chronic disability" for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multi-symptom illness (MUCMI) that are defined by a cluster of signs or symptoms (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome (IBS)) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). For the purposes of this section, the term MUCMI means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to: (1) fatigue, (2) unexplained rashes or other dermatological signs or symptoms, (3) headache, (4) muscle pain, (5) joint pain, (6) neurological signs and symptoms, (7) neuropsychological signs or symptoms, (8) signs or symptoms involving the upper or lower respiratory system, (9) sleep disturbances, (10) gastrointestinal signs or symptoms, (11) cardiovascular signs or symptoms, (12) abnormal weight loss, and (13) menstrual disorders. 38 C.F.R. § 3.317(b). Thus, in the previous May 2020 Board remand, the examiner was asked to describe all associated signs and symptoms related to the Veteran's respiratory conditions and opine on whether they can be related to a diagnosed condition (i.e., his asthma) and, if so, whether any diagnosed condition has a conclusive etiology and pathophysiology. The remand examiner also was asked to provide opinion on the signs and symptoms related to a diagnosed condition that either did not preexist the Veteran's service or was aggravated by his service. With regards to a potential COPD, the December 2020 examiner found no records of diagnostics supporting this diagnosis, meaning the Veteran does not have a current diagnosis of COPD. While prior Board remands noted a potential COPD diagnosis made during a sleep study or indicated in the records of it, the December 2020 VA examiner explained that sleep studies do not diagnose COPD. As for the Veteran's sinusitis, the December 2020 examiner found this to be a separate diagnosis unrelated to the Veteran's diagnosis of asthma. In June 2011, treatment records indicate a diagnosis of sinusitis owing to inflammation of his paranasal sinuses and causing symptoms of headaches. With regards to the Veteran's reversible airway disease, the December 2020 examiner noted asthma is considered reversible airway disease (in other words, they are the same condition). With regards to the Veteran's allergic rhinitis, the December 2020 examiner explained that allergic rhinitis and asthma are separate but related diagnoses that often overlap symptoms. But, as discussed, a MUCMI means a diagnosed illness without conclusive pathophysiology or etiology. And, while the Board is mindful of the Veteran's multiple symptoms and related respiratory diagnoses, each has a conclusive pathophysiology or etiology and has not been attributed to his service, including to his service during the PGW. Thus, the Board ultimately concludes that, while the Veteran has a current diagnosis of asthma that clearly and unmistakably preexisted his service, and evidence shows he was treated several times during his service for respiratory conditions, the preponderance of the evidence weighs against finding that his asthma was aggravated by his service or that any other respiratory condition that has been diagnosed originated during his service or is attributable to his service. While the Veteran contends that his respiratory condition, including his asthma, is related to his service, he is not competent to ascribe his symptoms to a particular diagnosis and, in turn, relate this diagnosis to events that took place during his service. These critical determinations are beyond his lay competence. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the combination of his September 2021, July 2019, and December 2020 examinations than to his lay reports and pleadings. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). For these reasons and bases, the Board finds that the preponderance of the evidence is against this claim, so the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Consequently, this appeal must be denied. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. B. Kucera 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.