08-32 272
08-32 272
| Board of Vet. App. | Aug 31, 2017Background
- Veteran served on active duty Jan 1977–Jul 1983; appeal from a Sept 2006 RO rating decision; hearings held in 2010 and Apr 2016.
- Claim: service connection for asthma, assertedly from mustard gas exposure at Fort Leonard Wood in 1977 or from a January 1977 hospitalization during basic training.
- Service entrance exam (Dec 1976) was normal; service treatment record from Jan 1977 documents an acute respiratory illness (fever, sore throat, chest pain) treated with Tylenol and resolving in days; no contemporaneous asthma diagnosis or asthma treatment in service records.
- First post-service asthma notation appears in private records in May 1991; first treatment for asthma documented in Jan 1993 (about 10 years after separation).
- DoD official finding (May 2006) concluded no mustard gas exposure; VA obtained multiple medical opinions (Oct 2009 and June 2017) finding it less likely than not that asthma began in service or is related to the in-service illness.
- Board found the veteran not exposed to mustard gas, found no clear-and-unmistakable preexistence of asthma at entry, rejected a favorable treating opinion as based on inaccurate facts, and denied service connection for asthma.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether asthma is service-connected | Asthma caused by mustard gas exposure during training and/or began during Jan 1977 service hospitalization | Service records, DoD finding, and medical opinions show no mustard gas exposure and no in-service asthma; gap in onset post-service | Denied; preponderance of evidence against service connection |
| Whether presumption of soundness rebutted | Veteran asserts prior asthma history noted in some service records | Service entrance exam normal; service records do not clearly and unmistakably show preexisting asthma | Presumption of soundness not rebutted; veteran presumed sound at entry |
| Whether missing employee health records create reasonable doubt | Veteran contends some in-service records are missing (employee health files) and VA should afford benefit of the doubt | VA attempted to obtain records; further efforts futile; medical and DoD evidence weigh against claim | Benefit-of-the-doubt not applied; preponderance against claim |
| Whether medical opinions are probative | Veteran relies on a positive nexus opinion (Dr. Kurzrok) and lay testimony | Board found Dr. Kurzrok’s opinion relied on inaccurate service-fact assertions; competent medical opinions find no nexus | Positive opinion given no probative weight; competent opinions favored denial |
Key Cases Cited
- Stegall v. West, 11 Vet. App. 268 (establishes requirement to comply with Board remand directives)
- Allday v. Brown, 7 Vet. App. 517 (Board must provide adequate statement of reasons or bases)
- Crowe v. Brown, 7 Vet. App. 238 (supporting medical evidence needed to show a condition was "noted" at entrance)
- Wagner v. Principi, 370 F.3d 1089 (Gov't must rebut presumption of soundness by clear and unmistakable evidence)
- Scott v. McDonald, 789 F.3d 1375 (issue-exhaustion principle for Board duties and procedural arguments)
- Dickens v. McDonald, 814 F.3d 1359 (applies Scott to duty-to-assist/Bryant issues)
- O'Hare v. Derwinski, 1 Vet. App. 365 (VA obligations when service records are missing)
- Cromer v. Nicholson, 19 Vet. App. 215 (no presumption arises solely from missing records)
- Gilbert v. Derwinski, 1 Vet. App. 49 (benefit-of-the-doubt standard)