Citation Nr: 18124022
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 10-11 146
DATE:	August 3, 2018
ORDER
Entitlement to service connection for a respiratory disability, to include asthma is granted.
FINDING OF FACT
The Veteran’s currently diagnosed respiratory disability is etiologically related to his in-service respiratory complaints, as caused by occupational and environmental exposures during active military service. 
CONCLUSION OF LAW
The probative medical evidence of record establishes that the Veteran’s respiratory disability, to include asthma is etiologically or otherwise related to active military service.  38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active service in the U.S. Army from July 1976 to October 1979.  This claim was before the Board in September 2014, and again in June 2015 when it was denied on the merits.  The Veteran promptly appealed the claim to the U.S. Court of Appeals for Veterans Claims (CAVC or Court), which entered into a joint motion for remand (JMR) with VA in January 2016 to set aside the previous Board decision and readjudicate the claim.  
The Board remanded the claim in April 2016 and denied it on the merits again in March 2017.  The Veteran promptly appealed that denial, and CAVC vacated and remanded the claim back to the Board in April 2018 for further adjudication. 
1. Entitlement to service connection for a respiratory disability, to include asthma
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996).  
The claims file includes evidence of the Veteran’s currently diagnosed respiratory disability, including asthma, chronic obstructive pulmonary disorder (COPD), and chronic bronchitis.  Therefore, the issue before the Board is whether the Veteran’s respiratory condition is caused by or related to active military service. 
The Veteran argues that he served as a power generator track and wheel vehicle mechanic and clerk performing duties in the motor pool.  He claims such resulted in long term exposure to lung irritants fuel and chemical fumes brake dust and numerous other hazardous materials.  According to the Veteran he developed shortness of breath by exposure to smoke on the weapons firing range and that after leaving service he continued to have breathing problems and was diagnosed with asthma in 1984. 
At entry of service in May 1976 the Veteran was examined was normal and denied a history of chronic or frequent colds, sinusitis, hay fever, asthma, and shortness of breath. 
During service, the Veteran sought medical treatment on multiple occasions for upper respiratory symptoms, including upper respiratory infections, wheezing, and rhinorrhea.  In July 1976, the Veteran was assessed with acute respiratory disease after a two-day hospitalization. 
On the May 1977 medical history form, the Veteran denied a history of asthma or hay fever, but reported ear, eye, nose, or throat trouble without any additional information provided.  In September 1978, the Veteran was assessed with a viral upper respiratory infection.  On the May 1979, the Veteran denied hay fever, chest pain, asthma, and shortness of breath.  
Post-service records note that the Veteran was treated for asthma, COPD, bronchitis, and bronchial asthma.  In 1996, the Veteran reported a history of bronchitis one year ago or less, and in 1998, he reported having respiratory difficulties since he was in his late teens.  In 1999, the Veteran reported having bronchitis all his life.  Thus, the Board notes the inconsistent account provided by the Veteran as to the onset of his symptoms. 
The medical evidence of record is conflicting regarding the etiology of the Veteran’s claimed respiratory condition.  Specifically, the April 2015 examiner stated that the Veteran’s respiratory condition is less likely related to the military, but more likely the consequence of the Veteran’s long-standing history of smoking and clinical findings inconsistent with asthma-chronic obstructive pulmonary disease overlap syndrome (ACOS).  The examiner noted that the Veteran’s presentations in-service were acute in nature, self-limited, and transient. 
Alternatively, the May 2015 VA examiner opined that the Veteran’s condition was at least as likely as not incurred in or caused by in-service injury, event, or illness.  The examiner stated that despite the Veteran’s post-service diagnosis of asthma in 1984, the documented history of wheezing and rales while in the military which was responsive to bronchodilators and frequent upper respiratory infections exacerbated by his work environment is reasonable to conclude that the condition incurred during military service.  Moreover, the examiner acknowledged the Veteran’s history of tobacco smoking, but determined that the exposure which more likely caused the Veteran’s condition was his work environment including dust, as evidenced by frequent exacerbations of the Veteran’s condition. 
A June 2016 medical opinion was submitted, where the examiner stated that the Veteran’s respiratory condition is less likely related to service, as the Veteran was evaluated and treated in-service for various conditions including sore throat, viral syndrome, and common cold.  On one occasion there was notion of wheezing and rhonchi.  However, at separation the Veteran was assessed as clinically normal.  Thus, the examiner determined the Veteran’s condition was dissociated with active service.  Following up on the 2015 and 2016 opinions, the July 2016 examiner attempted to resolve any deficiencies within the previous medical opinions.  This examiner determined that the Veteran’s respiratory condition is also less likely related to service, as the Veteran smoked in-service and cessation did not occur until 2015, which totaled thirty-nine years of tobacco use.  Asthma, COPD, and pulmonary airway disease are progressive in nature and etiologically related to smoking, and COPD in particular, typically develops in the fourth decade of life.  Thus, while the Veteran asserted exacerbations around dust and environmental exposure, the Veteran was negative for an exposure related diagnosis.  Lastly, the examiner stated that it would be speculative to assume what significant effects the periodic, intermittent, in-service occupational exposure caused to the Veteran’s lung tissue in light of his history of smoking, specifically concurring with the 2016 examiner. 
The Veteran, through representation submitted a private medical opinion in March 2017.  The physician stated that with 90 percent certainty, he believed that the Veteran’s current lung problems and need for constant oxygen are secondary to military injuries because he entered the service clinically normal, was exposed to dust and other environmental hazards during service, and there was no clear consensus on etiology of previous VA examiners.  Acknowledgement was made regarding the negative reports of asthma at entry and exit of service, as the disease was described as slowly progressive.  Further, the physician discounted the chest x-rays in June 1976 and 1979, as he determined that x-rays are not sensitive in detecting early manifestations of any occupational and environmental hazards.  In contrast to the July 2016 examiner’s opinion, this physician determined that not all instances of wheezing resulted in asthma, which is why he determined the Veteran’s most likely diagnosis is ACOS.  Asthma can be periodic and responsive to triggers as noted in ACOS, thus the physician determined that the Veteran’s components of both pneumoconiosis and reactive airway disease are very likely due to in-service exposure to occupational and environmental hazards, including dirt and dust which sensitized his lung resulting in an interstitial process which is again, consistent with a negative x-ray due to early exposure.  Lastly, the physician stated that despite the Veteran’s medical history of tobacco smoking which is most likely the cause of his COPD, it does not negate the baseline root cause of occupational and environmental hazards as also opined by the May 2015 VA examiner.  
The Board recognizes the Veteran’s previous inconsistent report of the onset of his symptoms, but still finds that entitlement to service connection for a respiratory condition is warranted.  In light of the multiple VA examinations of record, inclusive of the varying etiological determinations attributing the Veteran’s respiratory condition to tobacco smoking or in-service environmental hazards, the Board finds that the evidence is in relative equipoise.  The most recent medical opinion of record addressed the Veteran’s service treatment record, post-service complaints, and clearly explained why previous VA examiners were incorrect in their etiological determinations.  The Board finds this opinion to be adequate for rating purposes, with the opinion weighing positively on the claim. 
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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).  
Accordingly, entitlement to service connection for a respiratory disability, to include asthma is granted.  38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).  See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’..., the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”)

 
T. MAINELLI
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J.L. Reid, Associate Counsel 

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