Citation Nr: 21049783 Decision Date: 08/12/21 Archive Date: 08/12/21 DOCKET NO. 14-23 812 DATE: August 12, 2021 ORDER Entitlement to service connection for asthma is granted on a presumptive basis as due to exposure to particulate matter. FINDINGS OF FACT 1. The Veteran served in Southwest Asia during the Persian Gulf War. 2. The Veteran is presumed exposed to fine, particulate matter during service in Southwest Asia during the Persian Gulf War. 3. The Veteran's asthma became manifest to a degree within 10 years from his date of separation from military service in Southwest Asia. CONCLUSION OF LAW The criteria for service connection for asthma are met on a presumptive basis as due to exposure to particulate matter. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.2(i), 3.102, 3.303, 3.317(e)(2); 86 Fed. Reg. 42724 (August 5, 2021), to be codified at 38 C.F.R. § 3.320. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1999 to November 2003 and January 2006 to December 2009. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, denied the claim of service connection for lung condition (claimed as a result of exposure to herbicides and/or Gulf War environmental exposures). In August 2019, the Board remanded the Veteran's claim for further development. As the Board is granting the claim of service connection in full, discussion of compliance with the Board's August 2019 remand instructions is unnecessary. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for asthma on a presumptive basis Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). Effective August 5, 2021, VA issued an interim final rule amending its adjudication regulations and establishing presumptive service connection for three chronic respiratory health conditions, to include asthma, in association with presumed exposures to fine, particulate matter. These presumptions apply to veterans with a qualifying period of service, i.e., who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, as well as in Afghanistan, Syria, Djibouti, or Uzbekistan, on or after September 19, 2001, during the Gulf War. See Presumptive Service Connection for Respiratory Conditions Due to Exposure to Particulate Matter, 86 Fed. Reg. 42724 (August 5, 2021), to be codified at 38 C.F.R. § 3.320. A qualifying disease shall be service-connected even though there is no evidence of such disease during the period of service if it becomes manifest to any degree (including non-compensable) within 10 years from the date of separation from military service. The Persian Gulf War began on August 2, 1990, and the Southwest Asia theater of operations encompasses Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, and the Red Sea. 38 C.F.R. §§ 3.2(i), 3.317(e)(2). The Veteran's military personnel record reflects that he served on active duty in Kuwait and Iraq from approximately February to May 2003. Thus, the Veteran has a period of service that qualifies for the presumption as a result of his military service in Kuwait and Iraq from approximately February to May 2003. The Veteran is therefore presumed exposed to fine, particulate matter during such service, and there is no affirmative evidence to establish he was not exposed to fine, particulate matter during such service. During a June 2011 VA examination, the Veteran reported that he felt like he was not in as good a shape as he once was and became short of breath when climbing stairs. He was subsequently diagnosed with asthma in November 2019. Therefore, the Veteran's asthma became manifest to a degree within 10 years from the date of his qualifying period of service in Southwest Asia as shown by the evidence of his symptoms of shortness of breath reported during the June 2011 VA examination. McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (in determining the date entitlement arose, when an original claim for benefits is pending, the Board must determine when a claimant's disability manifested itself under all the "facts found" and "the date on which the evidence is submitted is irrelevant"); Traut v. Brown, 6 Vet. App. 495 (1994) (establishing service connection on a presumptive basis does not require that a chronic disease be diagnosed within the applicable time period; rather, symptoms that manifest within this time period may subsequently be determined to have been early manifestations of a chronic disease). In July 2020, a VA nurse practitioner found that the Veteran's asthma was less likely than not related to service as the Veteran's treatment records described a 13 year history of smoking. The Veteran stopped smoking in 2012. A qualifying disease will not be presumed service-connected if there is affirmative evidence that (1) the disease was not incurred during or aggravated by a qualifying period of service; or (2) the disease was caused by a supervening condition or event that occurred between the veteran's most recent departure from a qualifying period of service and the onset of the disease; or (3) the disease is the result of the veteran's own willful misconduct. Willful misconduct means an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of, or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n)(1). There is no affirmative evidence that the disease was not incurred in service. The July 2020 negative nexus opinion was made without knowledge of the presumption and the studies underlying it and therefore is not probative and cannot overcome the presumption. There is also no evidence that the disease was caused by a supervening condition or event or is the result of the Veteran's willful misconduct. As the Veteran's asthma manifested to a degree within 10 years of his qualifying period of service in Southwest Asia during the Persian Gulf War, and he is presumed to have been exposed to particulate matter based on his service in Southwest Asia during the Persian Gulf War, specifically Kuwait and Iraq from February to May 2003, entitlement to service connection for asthma is warranted on a presumptive basis. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.