Citation Nr: 23009397 Decision Date: 02/14/23 Archive Date: 02/14/23 DOCKET NO. 18-30 712 DATE: February 14, 2023 ORDER Entitlement to service connection for respiratory symptoms due to undiagnosed illness is granted. FINDING OF FACT The Veteran's respiratory symptoms have not been attributed to a known clinical post-service diagnosis, have existed for more than 6 months and manifested during his Persian Gulf service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for respiratory symptoms due to undiagnosed illness have been met. 38 U.S.C. §§ 1110, 1117, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1989 to October 1991 with service in Southwest Asia. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision of the VA RO which, inter alia, denied service connection for asthma. In May 2016, the Veteran filed his notice of disagreement, was issued a statement of the case in April 2018, and in June 2018 perfected his appeal to the Board. PRIOR DENIALS In January 1992 and January 2003 rating decisions, the RO, among other things and respectively, denied entitlement to service connection for asthma and continued its denial of service connection for asthma. The Veteran did not timely appeal these decisions or submit new and material evidence within a year of the decisions, thus, the rating decisions became final. 38 U.S.C. § 7105 (b); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). One exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. However, another exception is that at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement that new and material evidence must first be received. 38 C.F.R. § 3.156 (c). In this case, partial service treatment records from June 1990 to October 1991 were associated with the claims file in December 2002, and additional service treatment records from August 1989 to September 1991 were associated with the claims file in November 2015. The service treatment records document that the Veteran was treated for chest tightness in December 1989, and mild obstructive pulmonary impairment and shortness of breath in January 1990. These records are relevant to the Veteran's present claims on appeal as they show that the Veteran received treatment for symptoms of a respiratory disability during active military service and that reported childhood asthma in his July 1991 medical history report. Kisor v. Wilkie, 969 F.3d 1333, 1339 (Fed. Cir. 2020) (to be relevant under 38 C.F.R. § 3.156(c), "a record must address a dispositive issue and therefore affect the outcome of the case"). The service treatment records existed at the time of the January 1992 and January 2003 rating decisions, but were not associated with the claims file or considered by the RO at that time. Moreover, there is no indication that the Veteran failed to provide sufficient information to identify and obtain the records, such that the exception of 38 C.F.R. § 3.156 (c)(2) is for application. As, pursuant to 38 C.F.R. § 3.156 (c), these relevant official service department records received after the prior denials require reconsideration of the claim for service connection for asthma, there is no basis for analysis of the claims as requests to reopen under 38 C.F.R. § 3.156 (a) and the Board will review them on a de novo basis. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. 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 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). Respiratory Symptoms due to undiagnosed illness The Veteran's DD-214 reflects that his military occupational specialty was as a heavy wheel mechanic and that he is a recipient of the Southwest Asia Service Medal among other decorations. The DD-214 also indicates that the Veteran served in Southwest Asia from December 1990 to March 1991. For Persian Gulf war veterans who exhibit objective manifestations of a qualifying chronic disability, 38 U.S.C. § 1117 provides for presumptive service connection when the disability manifests "during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War" or to a degree of 10 percent or more before December 31, 2021, and which, "[b]y history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnoses." 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1)(i), (ii). Signs or symptoms which may be manifestations of undiagnosed illness include signs or symptoms involving the respiratory system. 38 C.F.R. § 3.317(b)(8). The Veteran's June 1989 medical examination report upon enlistment is normal. December 1989 service treatment records reflect that the Veteran was treated for chest tightness, reporting that it felt like someone is sitting on his chest. January 1990 service treatment records reflect treatment for shortness of breath, but there is also a notation of no evidence of asthma. January 1990 service treatment records reflect treatment for mild obstructive pulmonary impairment. A July 1991 medical examination report is normal with no indication that the Veteran has any issues with his lungs or chest. November 2015 medical treatment records reflect that the Veteran denied respiratory disorders but reported asthma as a child. The Veteran indicated that he was diagnosed with asthma as a kid and currently becomes short of breath and wheezes, but is unsure of how often he has asthma attacks. A March 2016 VA examination noted a diagnosis of asthma in 1980 but does not contain a diagnosis of asthma or a respiratory disease. The Veteran reported asthma, allergic rhinitis and sinusitis as a child, and stated that during service he had multiple episodes of upper respiratory infections (URI) with a diagnosis of chronic sinusitis. In a July 2018 letter, the Veteran stated that he uses an inhaler several times a week including when he has to climb stairs, lift anything or do anything that requires physical exertion, do a lot of walking, or push a mower due to his asthma. A December 2022 VA memorandum reflects that the Veteran is presumed to have toxic exposure during service in Southwest Asia. The Board notes that a Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). In other words, "[w]hen no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Veteran's June 1989 medical examination report upon entry into service is normal with no indication that the Veteran suffers from asthma or symptoms associated with asthma. While the evidence of record reflects that the Veteran was diagnosed with asthma as a child, there is no clear and unmistakable evidence within his service treatment records or the claims file which indicates that his asthma was not aggravated by service. Therefore, the presumption of soundness has not been rebutted and the Veteran is presumed to have been sound upon entry into active duty service. The Veteran has reported current symptoms of shortness of breath and wheezing, and stated that he uses an inhaler, his service treatment records reflect treatment for chest tightness and shortness of breath. These symptoms manifested during the Veteran's Persian Gulf service and have continued since then for six months or more. Moreover, these symptoms have not been attributed to a known clinical diagnosis, as the recent VA examiner did not indicate a post-service diagnosis of asthma. While the Board could remand the claim for a VA examination, a request for an opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216, 225 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). The evidence is sufficient to decide the claim, as the Veteran meets the criteria for compensation for respiratory symptoms due to undiagnosed illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. Entitlement to service connection for respiratory symptoms due to undiagnosed illness is therefore warranted. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, 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.