ASTHMA

Summary

The veteran, who served from August 1986 to February 1993, including service in Southwest Asia, appealed the denial of service connection for asthma, kidney stones, chronic fatigue syndrome (CFS), strep throat, bilateral hearing loss, bronchitis, fibromyalgia, and memory loss/sleep disorder. The veteran later withdrew the appeal for CFS, strep throat, bilateral hearing loss, bronchitis, and fibromyalgia. The Board granted service connection for asthma, finding the evidence evenly balanced and resolving doubt in the veteran's favor, citing credible lay evidence of shortness of breath symptoms since service. For kidney stones, the Board also found the evidence evenly balanced, granting service connection based on a private nurse practitioner's opinion that linked the condition to Southwest Asia deployment, toxic exposure risk activities (TERA), and the veteran's unusual history of frequent kidney stones. The Board dismissed the withdrawn claims as per the veteran's request. The veteran's service era was Vietnam/Southwest Asia, and the decision did not mention specific medals, MOS, or discharge type.

Rationale

Credible lay evidence of shortness of breath since service; Evidence evenly balanced, doubt resolved in veteran's favor; No opinion of record discussing onset or relation to service

Full Decision Text

Citation Nr: A26024135
Decision Date: 03/18/26	Archive Date: 03/18/26

DOCKET NO. 201027-119211
DATE: March 18, 2026

ORDER

Entitlement to service connection for asthma is granted.

Entitlement to service connection for kidney stones is granted.

Entitlement to service connection for chronic fatigue syndrome (CFS) is dismissed.

Entitlement to service connection for strep throat is dismissed.

Entitlement to service connection for bilateral hearing loss is dismissed.

Entitlement to service connection for bronchitis is dismissed.

Entitlement to service connection for fibromyalgia is dismissed.

FINDINGS OF FACT

1.  The evidence is approximately evenly balanced as to whether the Veteran's asthma is related to his active duty service.? 

2.  The evidence is approximately evenly balanced as to whether the Veteran's kidney stones are related to his active duty service.? 

3.  In August 2024, prior to the promulgation of a decision in the appeal, the Veteran withdrew?from appeal the claims of service connection for CFS, strep throat, bilateral hearing loss, bronchitis, and fibromyalgia. 

CONCLUSIONS OF LAW

1.  With reasonable doubt resolved in favor of the Veteran, the criteria for service connection?for asthma are met. ?38 U.S.C. §§ 1110, 1131, 5107;?38 C.F.R. §§ 3.102, 3.303.?

2.  With reasonable doubt resolved in favor of the Veteran, the criteria for service connection?for kidney stones are met. ?38 U.S.C. §§ 1110, 1131, 5107;?38 C.F.R. §§ 3.102, 3.303.?

3.  The criteria for withdrawal of the Veteran's appeal of the?claims of service connection for CFS, strep throat, bilateral hearing loss, bronchitis, and fibromyalgia are met.  38 U.S.C. § 7105; 38 C.F.R. § 20.205.?? 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 1986 to February 1993, to include service in Southwest Asia. 

These matters come?before the?Board of Veterans' Appeals?(Board) on appeal from a May 2020 rating?decision by a Department of Veterans Affairs (VA) Regional Office (RO) that confirmed and continued the previous denials of the claims of service connection for shortness of breath, kidney stones, CFS, strep throat, bilateral hearing loss, bronchitis, fibromyalgia, and memory loss and sleep disorder.  The Board is bound by the favorable findings in the?decision that new and relevant evidence was received to readjudicate the claims on appeal, and the Veteran served in Southwest Asia.  38 C.F.R. § 3.104(c).? 

The Veteran?timely?appealed the May 2020?rating decision in an October 2020 Decision Review Request: Board Appeal (Notice of Disagreement)?(NOD)?(VA Form 10182)?and?selected a?hearing?before a Veterans Law Judge (VLJ).??38 C.F.R. § 20.202(b)(2).? In May 2024, the Veteran?withdrew?his request for a Board hearing.  In Appeals Modernization Act (AMA) cases where the Veteran requests a hearing with a VLJ, the applicable regulation provides that, if the?hearing?request is withdrawn, the Board's decision will be based on a review of evidence of record at the time of the Agency of Original Jurisdiction's (AOJ) decision "and?evidence submitted by the appellant?or?his representative within 90 days following receipt of the withdrawal."  38 C.F.R. § 20.302(b).? Thus, the Board will consider the evidence in the claims file as of the May 2020?rating decision, as well?as 90?days from the date of the May 2024?letter withdrawing the hearing request.  The Board will not consider evidence added to the record in between the May 2020?rating decision?and?date of the?hearing?withdrawal letter?or?added to the record more than 90 days after the date of the?hearing?withdrawal letter.??If evidence was added during any ineligible period, the Board did not consider it.? If the Veteran wishes to have VA consider any evidence that was not?considered, he may at any time file a supplemental claim with the?AOJ?after receiving this decision and the additional evidence will
 the May 2020?rating decision, as well?as 90?days from the date of the May 2024?letter withdrawing the hearing request.  The Board will not consider evidence added to the record in between the May 2020?rating decision?and?date of the?hearing?withdrawal letter?or?added to the record more than 90 days after the date of the?hearing?withdrawal letter.??If evidence was added during any ineligible period, the Board did not consider it.? If the Veteran wishes to have VA consider any evidence that was not?considered, he may at any time file a supplemental claim with the?AOJ?after receiving this decision and the additional evidence will be considered in connection with the supplemental claim.??38 U.S.C. §§ 5104C(a)(1)(B), (b); 5108;?38 C.F.R. §§ 3.2501, 20.1105(a).? If filed within one year, this supplemental claim will preserve the date of the claim denied?herein?as the effective date of the grant of the benefit or benefits sought. ?38 U.S.C. § 5110(a)(2)(B);?38 C.F.R. § 3.2500(h). 

As a final preliminary matter, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Court explained that in determining the scope of a claim, the Board must consider the Veteran's description of the claim, symptoms described, and the information submitted or developed in support of the claim. ?In light of the Court's decision in Clemons and the Veteran's clarification in August 2024 correspondence that the claims of service connection for shortness of breath and memory loss and sleep disorder are claims of service connection for asthma and insomnia, the Board has recharacterized the claim of service connection for shortness of breath as a claim for service connection for asthma.  Given that service connection for sleep apnea was granted in October 2019 and a 50 percent rating assigned, and sleep disorder breathing and persistent day-time hypersomnolence are symptoms listed in the criteria for sleep apnea under diagnostic code 6847, the Board finds that any sleep-related symptoms including insomnia are contemplated by the grant of service connection for sleep apnea.  Therefore, a remand for a new examination, as the August 2015 VA examiner did not offer an opinion as to whether the Veteran's sleep-related symptoms are related to his service-connected sleep apnea, is not warranted.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (citing Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991)) (remand not required when it would impose unnecessary burdens on VA adjudication system with no benefit flowing to the Veteran).

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;?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).?? 

Entitlement to service connection?for asthma 

The Veteran contends that his asthma is secondary to his service-connected allergic rhinitis or that he should be awarded service connection for asthma on a presumptive basis pursuant to his service in Southwest Asia and the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act).  However, discussion of service connection based on any other theory of entitlement other than direct service connection is not necessary, as a grant of service connection on any other basis would not result in an earlier effective date.  Cf.?Johnson v. Collins, 38?Vet. App.?151 (2025) ("the Court rejects the Secretary's argument that because service connection was granted under the PACT Act, only a downstream effective date issue remains").

For the following reasons, entitlement to service connection?for asthma is warranted.

Multiple private treatment records indicate
 on a presumptive basis pursuant to his service in Southwest Asia and the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act).  However, discussion of service connection based on any other theory of entitlement other than direct service connection is not necessary, as a grant of service connection on any other basis would not result in an earlier effective date.  Cf.?Johnson v. Collins, 38?Vet. App.?151 (2025) ("the Court rejects the Secretary's argument that because service connection was granted under the PACT Act, only a downstream effective date issue remains").

For the following reasons, entitlement to service connection?for asthma is warranted.

Multiple private treatment records indicate that the Veteran has a diagnosis of asthma. ?Thus, the Veteran meets the current disability requirement for the claim.

The Veteran has reported throughout the appeal period that he has had a history of shortness of breath symptoms that the Board interprets as a contention that he has experienced those symptoms since approximately separation from service.  Buchanan v. Nicholson,?451 F.3d 1331, 1337 (Fed. Cir. 2006)?(holding lay evidence concerning?continuity?of symptoms after service, if credible, is?ultimately competent, regardless of the lack of contemporaneous medical evidence); Evans v. Shinseki, 25 Vet. App. 7, 16 (2011) ("The entire veterans claims adjudication process reflects the clear congressional intent to create an Agency environment in which VA is actually engaged in a continuing dialog with claimants in a paternalistic, collaborative effort to provide every benefit to which the claimant is entitled").  These reports are?credible?and?therefore?competent as they have been consistent throughout the appeal period.  Moreover, there is no opinion of record discussing whether the Veteran's asthma had its onset in or is related to active duty service.

To the extent that the grant of service connection in this matter is based primarily on lay evidence, "[i]f the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence."  Buchanan, 451 F.3d at 1337.

At this point, the Board could remand the claim for a VA examination or opinion.  However, a request for an opinion could be construed as obtaining additional evidence for the sole purpose of denying the 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 (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").    

For the?above?reasons, the evidence is?approximately evenly balanced as?to whether the Veteran's asthma is related to his active duty service. ?As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for asthma is?warranted.? 38 U.S.C. § 5107(b);?38 C.F.R. § 3.102.?? 

Entitlement?to?service connection for kidney stones 

The Veteran contends that his kidney stones are related to his exposure to environmental hazards while serving in Southwest Asia.

For the following reasons, the evidence is?approximately evenly?balanced as?to whether the Veteran's kidney stones are related to his active duty service.? 

An August 2024 private nurse practitioner noted the Veteran's diagnosis of kidney stones.  Thus, the Veteran meets the current disability requirement for the claim.

The Board is bound by the favorable finding the May 2020 rating decision that the Veteran served in Southwest Asia.  Therefore, the Veteran is presumed to have participated in toxic exposure risk activities (TERA) under 38 U.S.C. § 1119 based on his deployment in the Southwest Asia theater of operations, and the in-service injury requirement is met. 

In August 2024, a private nurse practitioner noted the Veteran's highly unusual history of 20 years of frequently occurring kidney stones dating back to at least 1996 and his exposure to environmental hazards while serving in the Persian Gulf.  The nurse practitioner further indicated that the kidneys work to filter toxins and pollutants and cited to medical literature finding that Southwest Asia is a "high risk environment for stone disease" and that environmental toxins are a common cause of kidney injury.  Thus, the
.  Therefore, the Veteran is presumed to have participated in toxic exposure risk activities (TERA) under 38 U.S.C. § 1119 based on his deployment in the Southwest Asia theater of operations, and the in-service injury requirement is met. 

In August 2024, a private nurse practitioner noted the Veteran's highly unusual history of 20 years of frequently occurring kidney stones dating back to at least 1996 and his exposure to environmental hazards while serving in the Persian Gulf.  The nurse practitioner further indicated that the kidneys work to filter toxins and pollutants and cited to medical literature finding that Southwest Asia is a "high risk environment for stone disease" and that environmental toxins are a common cause of kidney injury.  Thus, the nurse practitioner found that when considering the Veteran's two-year deployment to Southwest Asia, his known toxin exposure, and his highly unusual, frequently recurring kidney stones, it was likely that the Veteran's kidney stones were incurred in or due to service.

Thus, the Board gives significant probative weight to the August 2024 opinion when reading the opinion as a whole and?based on the context of the evidence of record.  Nieves-Rodriguez v. Peake,?22 Vet. App. 295, 304?(2008) (most of the probative value of a medical opinion comes from its reasoning).  There is no other opinion of record discussing whether the Veteran's kidney stones had their onset in or are related to active duty service. 

Therefore, given the above-discussed positive nexus opinion that has been assigned significant probative weight, the evidence is?approximately evenly balanced as?to whether the Veteran's kidney stones were caused by TERA in service. ?As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for?kidney stones is?warranted.? 38 U.S.C. § 5107(b);?38 C.F.R. § 3.102.?? 

Withdrawal and dismissal of the appeal?of the claims of service connection for CFS, strep throat, bilateral hearing loss, bronchitis, and fibromyalgia

"The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees."? 38 U.S.C. § 7105(d).  An appeal may be withdrawn as to any or all issues involved in the appeal, and withdrawal may be made by the Veteran or his representative.? 38 C.F.R. § 20.205(a).??? 

In the present case, in August 2024 correspondence submitted by the Veteran's attorney, the Veteran's attorney indicated that the Veteran was making a motion to withdraw the claims of service connection for CFS, strep throat, bilateral hearing loss, bronchitis, and fibromyalgia.

The August 2024 correspondence constitutes a valid withdrawal?of?the appeal as it?complied with?the requirements?of?38 C.F.R. § 20.205(b)(1)?and?(2) by including the name?of?the Veteran, the applicable VA file number,?and?a statement that the appeal was withdrawn.? Hembree v. Wilkie,?33?Vet. App.?1, 8?(2020).? 

As the Veteran has withdrawn the appeal of the claims of service connection for CFS, strep throat, bilateral hearing loss, bronchitis, and fibromyalgia, there?remains?no specific determination as to those claims with which the claimant disagrees.??Accordingly,?dismissal?of the appeal of the claims of service connection for CFS, strep throat, bilateral hearing loss, bronchitis, and fibromyalgia is warranted. 

 

Jonathan Hager

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	H. Styer, 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. 


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