Citation Nr: 22014076 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 16-53 684A DATE: March 11, 2022 ORDER Entitlement to service connection for asthma is denied. Entitlement to service connection for chronic bronchitis, claimed as chronic persistent cough, is denied. Entitlement to service connection for cold weather injury residuals, claimed as Reynaud's syndrome, is denied. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that asthma began during active service, or is otherwise related to an in-service injury or disease. 2. The evidence of record persuasively weighs against finding that the Veteran has had chronic bronchitis at any time during or approximate to the pendency of the claim, that bronchitis began during active service, or is otherwise related to an in-service injury or disease. 3. The evidence of record persuasively weighs against finding that the Veteran has had cold weather injury residuals, claimed as Reynaud's syndrome, at any time during or approximate to the pendency of the claim, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for asthma are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for chronic bronchitis, claimed as chronic persistent cough, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for cold weather injury residuals, claimed as Reynaud's syndrome, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1977 to September 1981. These matters arise from a November 2012 Department of Veterans Affairs (VA) Regional Office (RO) rating decision denying service connection. The matters were previously before Board of Veterans' Appeals (Board) in July 2021, where the Board remanded for further development. The Board finds substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand gives the Veteran a right to compliance with the terms of the remand). SERVICE CONNECTION Service connection may be granted for a disability resulting from personal injury suffered or disease contracted, or for aggravation of a preexisting injury suffered or disease contracted, in the line of duty in active military, naval, or air service. 38 U.S.C. § 1113; 38 C.F.R. § 3.303(a). To establish service connection the following elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical "nexus" requirement). See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding a matter of any issue material to the determination of the matter, the benefit of doubt will be given to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) (holding that a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Where a Veteran's service treatment records (STRs) have been lost and are unavailable for review, the Board is considers a "heightened duty" to assist a Veteran in the development of the case, to explain its findings and conclusions, and to carefully consider the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). 1. Entitlement to service connection for asthma The Veteran contends his asthma was caused by or exacerbated during his duties in Fort Wainwright, Alaska, including as a forest firefighter, ice fog (i.e., car fog lingering in below zero weather), and smog inhalation from winter car emissions. The persuasive evidence of record establishes that there is no nexus between the Veteran's current asthma and his active service. A review of the record shows that the VA was unable to obtain the Veteran's full service records. In light of this, the Board gives the Veteran the benefit of the doubt that he was exposed to smoke and smog in service. The evidence of record also establishes that the Veteran was first diagnosed with asthma in 2004. Therefore, the element a currently diagnosed disability for service connection is met. This leaves the question of a medical nexus before the Board. The Veteran was afforded a November 2021 VA examination in for his respiratory conditions, including asthma and claimed chronic bronchitis. The VA examiner noted that the Veteran's report of starting to experience respiratory symptoms in 1981. The examiner noted a current diagnosis of asthma. The examiner noted that the Veteran's pulmonary function testing produced pre-bronchodilator results of FVC: 46, FEV-1: 49, FEV-1/FVC: 108 and post-bronchodilator: FVC: 58, FEV-1: 67, FEV-1/FVC: 115. The examiner noted that the Veteran's FEV-1/FVC was the most accurately reflects the Veteran's level of disability. The examiner also noted very poor effort by the Veteran. The examiner noted that the Veteran's asthma does not impact his ability to work. The examiner opined that the Veteran's asthma was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran's asthma was first diagnosed in 2004, with no indication of any prior diagnosis of any other chronic respiratory conditions. The examiner identified a more than 20-year difference from the time of service to diagnosis of asthma. The examiner also noted no evidence in the record of treatment in that time span. As such, the examiner found no plausible connection can be established between respiratory conditions and cold exposure or other environmental exposures. Here, the November 2021 medical opinion of record constitutes probative evidence weighing against a link between the Veteran's asthma and his military service, as the opinion represents the conclusion of a medical professional with sufficient expertise, is based on the Veteran's medical history, and is support by a clear explanation sufficient for the Board to make an informed decision. Notably, the Veteran has not provided any competent medical evidence or opinion to the contrary, or identified evidence that diminishes the probative value of the VA opinions against the claim. Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). The Board finds that although the Veteran contends that his asthma is due to service or his military service, he is not competent to make that conclusion. Although lay persons are competent to provide opinions on some medical issues, the issue of whether exposure to wildfires or to car exhaust in 1981 is sufficient to cause onset of asthma over 20 years later falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board accords significantly more weight to the medical evidence than to lay assertions. Even considering the lay statements with regard to the matters they are competent to address, the most probative evidence weighs against the claim of entitlement to service connection for asthma. Therefore, the Board finds that the medical evidence of record is more persuasive because of the training, experience, and rationales provided by the examiners. The Board notes that the Veteran claims his asthma was caused by or aggravated by his service. There is no record of asthma prior to the Veteran's service. The law states that a veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). In this case, there is no evidence that the Veteran's asthma pre-existed service. The first diagnosis is in 2004, more than two decades after service. Further, the Veteran's own statements identify the condition as being first caused by exposure in 1981, four years after his initial enlistment. As such, the Board finds that clear and unmistakable evidence does not exist establishing that the Veteran's asthma existed prior to service. Therefore, the asthma cannot be aggravated by service. Based on the foregoing, the Board concludes that the evidence persuasively favors against service connection for asthma. The evidence of record is not in approximate balance and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). Therefore, the Board must deny the Veteran's claim. 2. Entitlement to service connection for bronchitis, claimed as chronic persistent cough Here, like his claim for asthma, a review of the record shows that the VA was unable to obtain the Veteran's full service records. In light of this, the Board gives the Veteran the benefit of the doubt that he was exposed to smoke and smog in service. The Veteran does not have a current diagnosis of bronchitis. As such, the element of a currently diagnosed disability for service connection is not met. The Veteran was afforded a November 2021 VA examination for his respiratory conditions, including claimed chronic bronchitis and asthma. Asthma is separately addressed in the section above. Chest x-rays at the November 2021 were normal. The examiner noted that the Veteran does not have chronic bronchitis. The examiner further noted that the previous diagnosis was for acute bronchitis which had resolved. This is supported by the fact no residuals were noted during the November 2011 x-rays. The Board reviewed the available records and notes there is no diagnosis of bronchitis during the period on appeal. See E.g., June 2019 VA Treatment Note; January 2019 VA Treatment Record (No chronic cough or wheezing). Where wheezing is noted, it is attributed by treating physicians to the Veteran's asthma. See April 21, 2015 VA Treatment Record. An April 20, 2015, emergency department treatment record notes hyperactive airway disorder. However, there are no records during the period on appeal diagnosing bronchitis. The most recent diagnosis of bronchitis is in May 2007, more than four years prior to the period on appeal. Further, the diagnosis was for acute bronchitis, not chronic. The only mention of chronic bronchitis is an April 2006 noting a history of chronic bronchitis based on the Veteran's disclosed history. The examiner opined that the Veteran's bronchitis is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that there are no chronic respiratory conditions other than asthma as the Veteran's bronchitis was acute and resolved with no diagnosis of chronic bronchitis. Because there is no current diagnosis of chronic bronchitis, no plausible connection can be established between it and cold exposure or other environmental exposures in service. The Board finds that although the Veteran contends that his chronic bronchitis is due to service or his military service, he is not competent to make that conclusion. Although lay persons are competent to provide opinions on some medical issues, the issue of whether exposure to wildfires or to car exhaust in 1981 is sufficient to cause chronic bronchitis and a single diagnosed case of acute bronchitis qualifies as chronic is outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board accords significantly more weight to the medical evidence than to lay assertions. Even considering the lay statements with regard to the matters they are competent to address, the most probative evidence weighs against the claim of entitlement to service connection for bronchitis. Therefore, the Board finds that the medical evidence of record is more persuasive because of the training, experience, and rationales provided by the examiners. The Board notes that the Veteran claims his bronchitis was caused by or aggravated by his service. Similar to asthma above, there is no record that the Veteran's bronchitis existed prior to the Veteran's service. The first diagnosis is for acute bronchitis in 2007, more than two decades after service. Further, the Veteran's own statements identify the condition as being first caused by exposure in 1981, four years after his initial enlistment. As such, the Board finds that clear and unmistakable evidence does not exist establishing that bronchitis existed prior to service. Therefore, bronchitis cannot be aggravated by service. Based on the foregoing, the Board concludes that the evidence persuasively favors against service connection for chronic bronchitis. The evidence of record is not in approximate balance and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). Therefore, the Board must deny the Veteran's claim. 3. Entitlement to service connection for cold weather injury residuals, claimed as Reynaud's syndrome The Veteran contends he has Reynaud's syndrome caused by cold weather exposure to temperatures of minus 60 degrees during his field exercises at Fort Wainwright, Alaska as a paratrooper without being allowed to attend mandatory cold weather classes. See e.g., May 2010 Statement in Support of Claim. The persuasive evidence of record establishes that the Veteran does not have a current diagnosis of Reynaud's Syndrome or any other cold weather injuries and that there is no nexus to the Veteran's active service. A review of the record shows that the VA was unable to obtain the Veteran's full service records. Evidence of record does establish that the Veteran was stationed in Ft. Wainwright in Alaska. In light of this, the Board gives the Veteran the benefit of the doubt that he was exposed to cold weather during service. The Veteran does not have a current diagnosis of Raynaud's syndrome or any cold weather injuries. As such, the element of a currently diagnosed disability for service connection is not met. The Veteran was afforded a November 2021 VA examination for cold weather injures, including Raynaud's syndrome. The examiner noted that the Veteran does not have Raynaud's syndrome. The examiner noted that all findings at the examination regarding cold weather injuries were normal. He could not identify any current signs of symptoms or any cold weather injuries at the examination. The November 2021 examiner noted that the entire record is silent for complaints, treatment, or diagnosis of any cold weather injuries. The examiner further noted that based on the examination with all normal findings and lack of any previous findings, treatment, no diagnosis is warranted or supported by the evidence of record. The examiner noted that the Veteran's complaints are subjective only based on the normal examination results. Based on no current findings supporting any cold weather injuries, the examiner opined that the claimed cold weather injury conditions, including Raynaud's syndrome, are less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that there is no diagnosis for any cold weather injury or residuals thereof, including Raynaud's syndrome. The examiner noted that all objective examination findings are normal, with symptoms being subjective only. Based on these facts and findings, the examiner stated that a nexus has not been established. Here, the November 2021 medical opinion of record constitutes probative evidence weighing against a link between the Veteran's claimed cold weather injuries and his military service. The opinion represents the conclusion of a medical professional with sufficient expertise, is based on the Veteran's medical history, and is support by a clear explanation sufficient for the Board to make an informed decision. Notably, the Veteran has not provided any competent medical evidence or opinion to the contrary, or identified evidence that diminishes the probative value of the VA opinions against the claim. Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). (Continued on the next page) The Board finds that although the Veteran contends that he has cold weather injuries due to service. However, the Veteran is not competent to make that conclusion. Although lay persons are competent to provide opinions on some medical issues, the issue of diagnosis of Raynaud's syndrome or whether it is related to service falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board accords significantly more weight to the medical evidence than to lay assertions. Even considering the lay statements with regard to the matters they are competent to address, the most probative evidence weighs against the claim of entitlement to service connection for cold weather injuries, including Raynayd's Syndrome. Therefore, the Board finds that the medical evidence of record is more persuasive because of the training, experience, and rationales provided by the examiners. Based on the above, the Board concludes that the evidence persuasively favors against service connection for cold weather injures, including Raynaud's syndrome. The evidence is not in approximate balance and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). Therefore, the Veteran's claim must be denied. Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Boushehri, Darjush M. 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.