Citation Nr: 22005486 Decision Date: 02/02/22 Archive Date: 02/02/22 DOCKET NO. 16-17 600 DATE: February 2, 2022 ORDER Entitlement to service connection for asthma is granted. FINDINGS OF FACT 1. The Veteran has qualifying Southwest Asia theater service and it is presumed that he was exposed to fine, particulate matter during such service, as there is no affirmative evidence to establish that he was not. 2. The Veteran has currently diagnosed asthma and was diagnosed with asthma within ten years of his service in Southwest Asia. CONCLUSION OF LAW The criteria for service connection for asthma have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.320. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 2000 to March 2001 and from December 2003 to February 2005, with additional service in the Army Reserves and service in Southwest Asia. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). The Board last remanded the case in June 2021, and it has since returned for further appellate action. Following the June 2021 Board remand, the VA examiner found that the Veteran's bronchitis is more likely than not due to service. However, the Veteran has not yet filed a claim for service connection for bronchitis and the Agency of Original Jurisdiction (AOJ) did not adjudicate the issue of bronchitis. Therefore, the Board cannot adjudicate that issue. The Veteran is advised to contact the AOJ to file a claim for service connection if he so desires. Entitlement to service connection for asthma is granted. The Veteran asserts that he suffers from asthma due to service. Specifically, the Veteran asserts that while stationed in Kuwait between 2004 and 2005, he began to experience asthmatic symptoms become severe enough to be problematic, and by 2008, he was put on permanent profile for asthma. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303(a). Effective August 5, 2021, VA revised 38 C.F.R. § 3.320. These revisions apply to all claims received by VA on or after August 5, 2021, or that were pending before VA, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit on August 5, 2021. 86 Fed. Reg. 42724. As this claim was pending on or after August 5, 2021, these revisions apply. Under 38 C.F.R. § 3.320, if a veteran was exposed to particulate matter during active military service, certain chronic diseases, including asthma, shall be service-connected if it becomes manifest to any degree (including non-compensable) within 10 years from the date of separation from military service that includes a qualifying period of service as defined in 38 C.F.R. § 3.320(a)(4), except as provided in 38 C.F.R. § 3.320(b) or if there is affirmative evidence to establish that the veteran was not exposed to fine, particulate matter during that service. 38 C.F.R. § 3.320. In-service particulate matter exposure is presumed for veterans who served in Afghanistan, Syria, Djibouti, Uzbekistan, or the Southwest Asia theater of operations (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, the Red Sea, and the airspace above these locations) during the Persian Gulf War, August 2, 1990 through a date Presidential proclamation or law will prescribe. 38 C.F.R. §§ 3.2(i), 3.317(e)(2), 3.320(a)(4). The Veteran's January 2005 Post-Deployment Health Assessment notes that the Veteran was assigned to serve in Kuwait from February 2004 to February 2005. Accordingly, the Veteran is presumed to have been exposed to particulate matter during service. 38 C.F.R. § 3.320(a)(4). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service treatment records shows that the Veteran reported to some wheezing and sneezing between October and November 2003. In the December 2003 pre-deployment health assessment, the Veteran reported having in general, excellent health. In a January 2004 pre-deployment health assessment, the Veteran reported ot having in general, excellent health. As noted in the January 2005 post-deployment health assessment, the Veteran was exposed to sand, dust, and other particles. However, the Veteran marked no on whether he suffered from any symptoms to include chronic cough, runny nose, or any other concerns. The Veteran was noted to have experienced respiratory rate of 18 and was also noted to not have been put on a permanent profile at this time. At the February 2005 Army Reserve report of medical examination, the Veteran's systems were found to be normal. In a corresponding report of medical history, the Veteran specifically denied having any asthma or any breathing problems, shortness of breath, wheezing, being prescribed to use an inhaler, or chronic cough or cough at night. Post service treatment records reveal that the Veteran received treatment for asthma in August 2008 and received a permanent profile for asthma in February 2010. A May 2013 VA respiratory conditions Disability Benefits Questionnaire (DBQ) report indicates that the Veteran was diagnosed with asthma in 2005 and associated pulmonary functioning testing (PFT) reveals an obstructive defect. The Board notes that these clinical records establish that the Veteran was diagnosed with asthma within 10 years of his service in Kuwait from February 2004 to February 2005. Therefore, as asthma is one of the chronic diseases presumed to be associated with exposure to fine, particulate matter, service connection is warranted on a presumptive basis as asthma were diagnosed within 10 years of the Veteran's separation from service as well as his service in Kuwait. The claim is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.J. Kim, 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.