Citation Nr: 21051783 Decision Date: 08/23/21 Archive Date: 08/23/21 DOCKET NO. 17-38 220 DATE: August 23, 2021 ORDER Entitlement to service connection for asthma (claimed as right paralyzed hemidiaphragm with exercise induced bronchospasm, to include as due to exposure to environmental hazards and/or secondary to service-connected gastroesophageal reflux disease (GERD)) is granted. FINDING OF FACT The Veteran has experienced dyspnea and coughing related to asthma within the applicable 10 year presumptive period. CONCLUSION OF LAW The criteria for entitlement to service connection for asthma are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1988 to September 1992 with service in the Southwest Asia theater of operations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, March 2019, March 2020, July 2020, and April 2021 the Board remanded this claim for additional development. In the April 2021 Board remand, instructions to obtain a medical opinion were provided. A May 2021 medical opinion and June 2021 addendum opinion were obtained. However, the opinions failed to consider and discuss the following: (1) the Veteran's lay statements concerning his in-service symptoms of dyspnea and coughing; (2) the Veteran's lay statements that he experienced diaphragmatic trauma after jumping from airplanes; (3) the Veteran's lay statements concerning his post-service symptoms of dyspnea and coughing, to include during the police academy; (4) the April 2019 VA treatment note that diagnosed the Veteran with paralyzed right hemidiaphragm and opined it was likely caused by viral infection; and (6) the Veteran's asserted theory that the November 1988 documented in-service complaint of difficulty breathing with a diagnosis of tonsillitis was the viral infection that caused his paralyzed right hemidiaphragm and/or his exposure to mosquitoes that transmitted malaria. The Board is not satisfied that the prior remand directives have been complied with. See Stegall v. West, 11 Vet. App. 268 (1998). However, given the long history of this case and multiple medical opinions already of record, the Board finds that a remand for further development in this case would be futile. Moreover, the evidence of record, to include the competent and probative lay statements of the Veteran, is sufficient to grant presumptive service connection for respiratory conditions due to exposure to particulate matter. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). Service connection laws and regulations Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). Service connection may be established on a secondary basis for a disability which is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Under the Department of Veterans Affairs (VA), an interim final rule effective August 5, 2021 amended its adjudication regulations to establish presumptive service connection for three chronic respiratory health conditions, i.e., asthma, rhinitis, and sinusitis, to include rhinosinusitis, in association with presumed exposures to fine, particulate matter. The presumptions applies 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 (hereafter Gulf War), as well as in Afghanistan, Syria, Djibouti, or Uzbekistan, on or after September 19, 2001, during the Gulf War. This amendment is necessary to provide expeditious health care, services, and benefits to Gulf War Veterans who were potentially exposed to fine, particulate matter associated with deployment to the Southwest Asia theater of operations, as well as Afghanistan, Syria, Djibouti, and Uzbekistan. The intended effect of this amendment is to address the needs and concerns of Gulf War Veterans and service members who have served and continue to serve in these locations as military operations in the Southwest Asia theater of operations have been ongoing from August 1990 until the present time. Neither Congress nor the President has established an end date for the Gulf War. Therefore, to provide immediate health care, services, and benefits to current and future Gulf War Veterans who may be affected by particulate matter due to their military service, VA intends to provide presumptive service connection for the chronic disabilities of asthma, rhinitis, and sinusitis, to include rhinosinusitis, as well as a presumption of exposure to fine, particulate matter. This will ease the evidentiary burden of Gulf War Veterans who file claims with VA for these three conditions, which are among the most commonly claimed respiratory conditions. As such, service connection may be established for a qualifying respiratory health condition resulting from presumed exposure to fine, particulate matter that became manifest during active service in the Southwest Asia theater of operations during the Gulf War, as well as Afghanistan, Syria, Djibouti, or Uzbekistan, on or after September 19, 2001, during the Gulf War, or within the presumptive 10 year period. As noted in the Introduction, the Veteran served in the Southwest Asia theater of operations. Therefore, he qualifies for consideration for presumptive service connection for respiratory health condition resulting from presumed exposure to fine, particulate matter. After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to service connection for asthma The Veteran contends his right paralyzed hemidiaphragm with exercise induced bronchospasm is due to exposure to environmental hazards, and/or in-service tonsilitis, and/or diaphragmatic trauma from in-service parachute jumping, and/or secondary to service-connected GERD. Turning to the evidence, service treatment records (STRs) from November 1988 include complaints of a sore throat with difficulty breathing and a constant headache. He was diagnosed with tonsilitis and treated with Erythromycin. Military personnel records indicate the Veteran served in Saudi Arabia from August 1990 to April 1991. In a December 2000 correspondence from the VA, it was determined that based on the location of the Veteran's unit in the Southwest Asia theatre of operations between March 10-13, 1991, he may have been exposed to a very low level of chemical agent resulting from the demolition of munitions at Khamisiyah, Iraq. The Veteran was diagnosed with unspecified asthma in December 2010. The Veteran was diagnosed with exercise induced asthma in March 2015. VA treatment records from August 2015 include a Persian Gulf Registry Note wherein the Veteran reported exposure to the following while in the Persian Gulf: smoke from oil fires; smoke or fumes from tent heaters; cigarette smoke; diesel and/or other petrochemical fumes; burning trash or feces; paints, solvents, or petrochemical substances; depleted uranium; microwaves; pesticide use; pyridostigmine; and ate food other than that provided by the Armed Forces. The Veteran underwent a September 2016 VA Gulf War examination. The examiner stated there are no diagnosed illnesses for which no etiology was established. A diagnosis of shortness of breath with an onset in 2000's was noted. The Veteran underwent a September 2016 VA examination. Chest x-rays revealed a normal impression. After a review of the medical records, the examiner opined that the Veteran's exercise induced asthma was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale provided was that exercise induced asthma is a disease with a clear and specific etiology and diagnosis. STRs do not contain treatment or diagnosis of exercise induced asthma. In fact, he was not diagnosed with the condition until 2015, approximately 23 years after discharge from service. In a March 2017 Notice of Disagreement, the Veteran asserted that although his exercise induced asthma was not diagnosed during service, he did have coughing during exercise while in service but just never knew what it was. Further stating, in 1998 when he went through the police academy, he noticed it more. He asserts that through the years it has gotten worse, which is why he deceived to seek medical attention. The Board finds these lay statements competent and probative. In an August 2018 Correspondence letter, the Veteran again contended he has had asthma since being in service. He stated whenever he would exercise, get excited, or be stressed, he would start coughing to the point of puking. He also attached a VA burn pit article, "Were you exposed to burn pits while deployed?" dated March 15, 2018. The Veteran underwent a September 2018 VA examination. During the examination, the Veteran claimed he experienced exercise induced asthma during the military after the Gulf War in 1991. A chest x-ray revealed a normal impression. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury or event, to include the Gulf War and any particular exposure in the Southwest Asia theater of operations. The rationale provided was that the Veteran was discharged in 1992, but was not diagnosed with asthma until 2010. Additionally, the examiner determined that the nature and etiology of his exercise induced asthma is obesity. Lastly, the examiner determined exercise induced asthma is a disease with a diagnoseable chronic multi-symptom illness with a partially explained etiology that is unrelated to any particular exposure in the Southwest Asia theater of operations. In a January 2019 Correspondence letter, the Veteran stated that when he got to the police academy in 1998, his fellow recruits noticed his "coughing problems during runs." VA treatment records from February 2019, indicate the Veteran was seen by a pulmonary specialist who noted that the Veteran displayed with pulmonary restriction after spirometry which was consistent with the paralysis of the hemidiaphragm. Further, it was found that there were "no significant breathing problems" and the "cough appears secondary to acid reflux." VA treatment records from April 2019 regarding exercise induced bronchospasm indicate that the Veteran has had a 25-year history of exertion and breathing problems. In an April 2019 pulmonary outpatient note, the Veteran was diagnosed with a paralyzed right hemidiaphragm that was likely caused by a viral infection. In an October 2019 VA Respiratory Conditions examination, the examiner determined that the Veteran did not have a current respiratory condition diagnosis. It was reiterated that the Veteran has a paralyzed right hemidiaphragm likely caused by a viral infection. Although the examiner explained that the Veteran's prior asthma diagnoses had resolved, no response was provided as to whether asthma existed during the claims period. In the March 2020 Board remand, the Board made a favorable factual finding that the Veteran's reports of in-service coughing and vomiting were competent and credible. In so finding, the Board determined "he did experience related symptoms during active service." In an April 2020 Correspondence letter, the Veteran contended this his paralyzed right hemidiaphragm likely caused by a viral infection is probably from his November 1998 tonsilitis. He also contends that his prior VA examiners are not medical doctors and he has "a right to expert medial opinion." In an April 2020 VA examination, the examiner stated that the Veteran's current paralyzed right hemidiaphragm with exercise-induced bronchospasm is a disease with a clear and specific diagnosis and etiology. The examiner acknowledged that causes of paralyzed right hemidiaphragm include direct trauma to the phrenic nerve (the nerve that controls the function of the diaphragm), either from surgery, radiation, or tumor or Central neurological disorders such as a brain or brainstem stroke, idiopathic, and trauma. The examiner noted the Veteran has had none of those listed condition except for trauma as a police officer at a jail house, involving handling prisoners. Additionally, it was noted that the Veteran's asthma was not diagnosed until 2010, and he was discharged in 1992, 18 years later. Further, the examiner found that the Veteran's asthma was not aggravated by exercise due to the fact that his albuterol inhaler did not help during exacerbation as noted from his September 2018 VA examination and thus he stopped taking it. It was opined that if the Veteran had exercise induced asthma since service, then he would have suffered recurring dyspnea and coughing spells from all the exertion as a police officer at a jail and during his yearly police officer fitness testing. In an August 2020 VA examination, the examiner reported that upon review of available medical records, it is acknowledged that the Veteran is identified to have paralyzed right hemidiaphragm which was supported by a diaphragm fluoroscopy. The examiner reported that the medically acknowledged causes for phrenic nerve paralysis are stroke, diaphragmatic trauma or surgery or neuromuscular disorders. The examiner noted that the Veteran has denied suffering from any of those conditions. Further, the examiner stated that current medical literature identifies three infectious causes for phrenic nerve paralysis, West Nile virus, dengue virus, and Lyme disease. The examiner expressed that these complications, however, are extremely rare with only two documented cases of phrenic nerve paralysis due to West Nile virus. The examiner noted that the Veteran suffered a viral tonsillitis while in service, however, West Nile virus and dengue fever are not the cause of viral tonsillitis. The examiner noted that exposure to burn pits are acknowledged to cause coughing and dyspnea because these are pulmonary irritants but does not subsequently lead an individual to acquire asthma. Thus, the examiner opined that it is less likely than not that the Veteran's right paralyzed hemidiaphragm with exercise induced bronchospasm had its onset during service or is causally or etiologically due to service, to include exposure to environmental hazards, such as burn pits, or the documented viral infection of tonsillitis during service. In a September 2020 Correspondence letter, the Veteran noted that the examiner reported that the Veteran's cough was from acid reflux but chose to leave out his bronchial spasm and the effects of having one lung and its difficulty in breathing. In an October 2020 Correspondence letter, the Veteran stated that he was deployed to Panama where there is still an abundance of mosquitoes and malaria. In addition, the Veteran indicated the he jumped from airplanes thirty times, and thus his hard landings could have been considered blunt trauma. As far as burn pits are concerned, the Veteran stated that the September 2020 VA examiner acknowledged that burn pits are irritants that cause coughing, however, the examiner did not explain why his asthma did not go away since service. In a May 2021 VA examination and June 2021 addendum opinion, records were reviewed and the examiner opined that right paralyzed hemidiaphragm with exercise induced bronchospasm is less likely than not caused by service, or is causally or etiologically due to service, to include exposure to environmental hazards, such as burn pits, or the documented viral infection of tonsillitis during service. The rationale provided was that based on November 1988 STRs of tonsilitis treated with Erythromycin, tonsilitis was not viral in origin. Additionally, chest x-rays from September 2016 reporting normal findings and chest x-rays from September 2018 reporting elevation of the right hemidiaphragm with overlying discoid change suggests "current right paralyzed hemidiaphragm was not due to some alleged exposure to environmental hazards, such as burn pits, or the documented viral infection of tonsillitis during service but incurred post service." Regarding aggravation, there was a baseline level of severity, which was the September 2018 chest x-ray reporting elevation of the right hemidiaphragm with overlying discoid change. The examiner opined that right paralyzed hemidiaphragm is less likely than not aggravated by GERD during service based on current medical literature: [The] cause of paralyzed hemidiaphragm include birth defects such as congenital central hypoventilation syndrome, diseases of the nervous system such as amyotrophic lateral sclerosis (ALS) or multiple sclerosis, injury (direct trauma) such as an upper cervical spinal cord injury that has spared the phrenic nerve, phrenic nerve fraying or damaging following cardiothoracic or pulmonary surgery, cervical spine arthritis, cancer that has spread and compresses the phrenic nerve... Here, the chest x-ray in September 2016 reported normal findings and the chest x-ray in September 2018 reported elevation of the right hemidiaphragm with overlying discoid change which suggests current right paralyzed hemidiaphragm was not aggravated by GERD. Regarding causation, the examiner opined it is less likely than not the Veteran's current condition is proximately due to or the result of his service-connected GERD providing the aforementioned rationale. In a July 2021 Correspondence letter, the Veteran contended that the September 2018 VA examination chest x-ray stating that the findings were normal are "simply not true." He enclosed a copy of the VA examination report from September 2018 which states, "mild elevation of the right hemidiaphragm." Effective August 5, 2021, the VA amended its adjudication regulations to establish presumptive service connection for three chronic respiratory health conditions, i.e., asthma, rhinitis, sinusitis, to include rhinosinusitis, in association with exposure to fine particulate matter for those Gulf War Veterans who served in Southwest Asia, Afghanistan, Syria, Djibouti, and Uzbekistan. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds that the criteria for presumptive service connection for respiratory health conditions, to include asthma (claimed as right paralyzed hemidiaphragm with exercise induced bronchospasm, to include as due to exposure to environmental hazards and/or secondary to service-connected GERD), are met. It is clear that the Veteran served in the Southwest Asia theater of operations during the Gulf War, was exposed to chemical agents per the December 2000 VA letter, manifested symptoms of in-service coughing and vomiting per the March 2020 Boards favorable finding, reported dyspnea and coughing within 10 years from separation as demonstrated in lay statements, and suffered from asthma during the appeal period. The Board finds that the evidence is, at minimum, in equipoise regarding the question of whether he meets presumptive service connection for a respiratory health condition resulting from presumed exposure to fine, particulate matter. As such, the benefit-of-the-doubt will be conferred in the Veteran's favor and his claim for presumptive service connection for asthma is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In light of this grant of service connection, the Board need not address any other theory of entitlement advanced. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.M. Edwards, 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.