ASTHMA

H. SEESEL · 2026 · Case ID: A26040093

MIXED

Summary

The veteran, who served in the U.S. Army from September 1976 to June 1988, with subsequent service in the Army National Guard and deployments to Kuwait and Iraq, appeals the denial of service connection for asthma, bronchitis, a lumbosacral spine condition, and left hip disabilities. The Board granted service connection for asthma due to fine particulate matter exposure under the presumptive provisions of 38 C.F.R. § 3.320, finding it was aggravated by service, and granted service connection for chronic bronchitis under the PACT Act, also finding it was aggravated by service. The Board noted that both conditions pre-existed service but were aggravated during service, applying the benefit of the doubt. The Board remanded claims for asthma and bronchitis on alternative bases, as well as the lumbosacral spine condition and left hip disabilities. The remand for asthma and bronchitis was due to inadequate VA examinations that failed to address aggravation and pre-existing conditions properly. The lumbosacral spine claim was remanded to obtain information on National Guard service and clarify the injury's timing. The left hip claims were remanded for a new examination to assess severity, flare-ups, and functional loss, as the previous examination was deemed inadequate. The veteran's service in Southwest Asia and Iraq qualified him for presumptive conditions under the PACT Act and 38 C.F.R. § 3.320.

Rationale

Aggravated by service; Presumptive under 38 C.F.R. § 3.320; Benefit of the doubt applied

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210108-133460

Full Decision Text

Citation Nr: A26040093
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 210108-133460
DATE: April 29, 2026

ORDER

Service connection for asthma due to fine particulate matter exposure pursuant to 38 C.F.R. § 3.320 is granted.

Service connection for chronic bronchitis is granted. This issue is granted pursuant to the PACT Act.

REMANDED

Entitlement to service connection for asthma on a direct basis prior to August 5, 2021, is remanded.

Entitlement to service connection for bronchitis on any basis other than the PACT Act, prior to August 10, 2022, is remanded.

Entitlement to service connection for degenerative disk disease, lumbosacral spine (previously claimed as a back condition) is remanded.

Entitlement to an initial rating in excess of 10 percent for left hip degenerative joint disease with trochanteric bursitis, with limitation of extension, is remanded.

Entitlement to an initial compensable rating for left hip degenerative joint disease with trochanteric bursitis, with thigh impairment, is remanded.

FINDINGS OF FACT

1. The Veteran has qualifying service in the Southwest Asia theater of operations.

2. The Veteran has been diagnosed with asthma and there is evidence of aggravation during a qualifying period of military service.

3. The Veteran has been diagnosed with bronchitis which was aggravated during a qualifying period of military service.

CONCLUSIONS OF LAW

1. The criteria for presumptive service connection for asthma due to fine particulate matter exposure pursuant to 38 C.F.R. § 3.320 have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.320.

2. The criteria for presumptive service connection for chronic bronchitis have been met pursuant to the PACT Act. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309; PACT Act, Pub. L. 117-168, 136 Stat. 1759 (2022).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from September 1976 to June 1988, from March 2003 to September 2003, and from September 2005 to November 2006, as well as additional service in the Army National Guard. The Veteran has confirmed service in Kuwait and Iraq. The Board of Veterans' Appeals (Board) is grateful to the Veteran for his honorable service.

These matters come before the Board on appeal from an August 2020 rating decision of the Department of Veterans Affairs (VA), which found that new and relevant evidence had been received and reconsidered and denied the claims on appeal based on the evidence of record at the time of that decision. As new and relevant evidence has been found by the AOJ, the claims for service connection will be addressed on the merits below. 38 C.F.R. §§ 3.102, 3.104.

In January 2021, the Veteran filed a VA Form 10182, electing the Hearing docket under the Appeals Modernization Act (AMA). Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a).

In August 2024, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record.

Service connection for asthma.

Effective August 5, 2021, under 38 C.F.R. § 3.320(a), for veterans with qualifying service in the "Southwest Asia theater of operations" during the Persian Gulf War, service connection may be presumed for certain listed chronic diseases associated with exposure to fine, particulate matter, even though there is no evidence of such disease during the period of military service. The list of diseases includes asthma, rhinitis, and sinusitis (to include rhinosinusitis), among others. 38 C.F.R. § 3.320(a)(2).

In particular, service connection for the listed disease may be presumed under 38 C.F.R. § 3.320, if the listed disease becomes manifest
5, 2021, under 38 C.F.R. § 3.320(a), for veterans with qualifying service in the "Southwest Asia theater of operations" during the Persian Gulf War, service connection may be presumed for certain listed chronic diseases associated with exposure to fine, particulate matter, even though there is no evidence of such disease during the period of military service. The list of diseases includes asthma, rhinitis, and sinusitis (to include rhinosinusitis), among others. 38 C.F.R. § 3.320(a)(2).

In particular, service connection for the listed disease may be presumed under 38 C.F.R. § 3.320, if the listed disease becomes manifest to any degree (including noncompensable) at any time following separation from a qualifying period. Id.

Exposure to fine, particulate matter shall be presumed under 38 C.F.R. § 3.320(a)(4) for veterans with qualifying service in the Southwest Asia theater of operations during the Persian Gulf War or in Afghanistan, Syria, Djibouti, or Uzbekistan on or after September 19, 2001, unless there is affirmative evidence to establish that the veteran was not exposed to fine, particulate matter during that service. The "Southwest Asia theater of operations" refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations from August 2, 1990, through a date Presidential proclamation or law will prescribe. See 38 U.S.C. § 101(33); 38 C.F.R. §§ 3.2(i), 3.317(e)(2), 3.320(a)(5).

However, a listed disease such as asthma shall not be presumed service connected based on exposure to fine, particulate matter if there is affirmative evidence that: (1) the disease was not incurred during or aggravated by a qualifying period of service; or (2) the disease was caused by a supervening condition or event that occurred between the veteran's most recent departure from a qualifying period of service and the onset of the disease; or (3) the disease is the result of the veteran's own willful misconduct. 38 C.F.R. § 3.320(b).

Primary sources of fine, particulate matter include the following: dust storms and other wind-born suspension of organic and inorganic particles, diesel engine emissions from generators and military vehicles and trucks, burn pit emissions, and industrial pollutants. See VBA Letter 20-22-10 at page 19.

The Veteran's form DD214 reflects qualifying service in Kuwait/Iraq from November 2005 until November 2006. Accordingly, he has qualifying service in the Southwest Asia theater of operations.

The record further reflects that the Veteran has been diagnosed with asthma. In the present case, as will be discussed further in the remand section below, there is evidence that the asthma preexisted the Veteran's service in November 2005. Although there is not entrance examination for this last period of service, the evidence reflects complaints, treatment and diagnoses of asthma from 1988. Significantly, A May 2005 dental treatment record noted he had allergy induced asthma treated with medication. In June 2005 he was noted to have bronchitis and had an albuterol inhaler. In June 2005 he was seen for follow up for bronchitis and described purulent colored sinus discharge, improving cough and no shortness of breath. The assessment was acute sinusitis.

A January 2007 VA record noted the Veteran was seen for follow up in primary care and reported a recurrence of asthmatic symptoms which he reported worsened while in Iraq. He described a lot of whitish sputum, some wheezing but no shortness of breath. A January 2007 record notes a PFT was ordered for asthma. On the March 2007 post deployment questionnaire the Veteran described his health as "much worse now than before I deployed." He reported having a chronic cough, chest pain or pressure, and difficulty breathing among other symptoms. On the July 2007 report of medical history he indicated he had sinusitis, asthma, shortness of breath, pain or pressure in chest, chronic cough.

A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a).

The evidence reflects that
2007 post deployment questionnaire the Veteran described his health as "much worse now than before I deployed." He reported having a chronic cough, chest pain or pressure, and difficulty breathing among other symptoms. On the July 2007 report of medical history he indicated he had sinusitis, asthma, shortness of breath, pain or pressure in chest, chronic cough.

The evidence reflects that prior to the 2005 period of service, the Veteran's asthma was described as stable on medication. Records throughout this period of service reflect continued treatment for the condition, continued notation that he was prescribed medication and testimony, lay statements and reports to physicians that the conditioned worsened during his service. Resolving all doubt in the Veteran's favor and applying the presumption of aggravation the Board finds the condition was aggravated by service. There is no affirmative evidence that the condition was not aggravated during this service or was caused by a supervening condition or event.

The Board finds that the evidence persuasively favors finding that service connection for asthma due to exposure to fine, particulate matter under the presumptive provisions of 38 C.F.R. § 3.320 is warranted.

Service connection for bronchitis.

The Veteran also contends that service connection is warranted for his bronchitis, based on exposure to toxins while serving during the Gulf War. The appeal is granted.

The PACT Act provides that bronchitis, which manifest in a "covered veteran," shall be presumed to have been caused by exposure to burn pits and other toxins without regard to date of onset. See Public Law Number 117-168; 136 Stat. 1759 (Aug. 10, 2022) (PACT Act). The Veteran served in Iraq, during a qualifying period under the PACT Act and is therefore a "covered veteran." The presumption established by the PACT Act means that when the law's criteria are met, as they are in this case, the law presumes a causal relationship between the claimed disability and the veteran's service, and no evidence of a nexus is needed to establish service connection.

Similarly to the claim for asthma above, the record clearly reflects the Veteran had symptoms and treatment for bronchitis long before his service in Southwest Asia. Specifically, the record reflects an assessment of "probable chronic bronchitis/sinusitis may be secondary to allergic rhinitis" as early as 1987.

As such the record reflects the condition preexisted the Veteran's service in 2005.

The Veteran is presumed to have been exposed to toxins during his deployment to Iraq. The question is whether the record reflects aggravation of the bronchitis during service.

There is no official entrance examination prior to the Veteran's 2005 service. A January 2007 VA record noted the Veteran was seen for follow up in primary care and reported a recurrence of asthmatic symptoms which he reported worsened while in Iraq. He described a lot of whitish sputum, some wheezing but no shortness of breath. A January 2007 record notes a PFT was ordered for asthma. On the March 2007 post deployment questionnaire the Veteran described his health as "much worse now than before I deployed." He reported having a chronic cough, chest pain or pressure, difficulty breathing among other symptoms. On the July 2007 report of medical history he indicated he had sinusitis, asthma, shortness of breath, pain or pressure in chest, chronic cough.

Additionally, the Veteran provided lay statement alleging the bronchitis worsened and increased in occurrence during service. Resolving all doubt in the Veteran's favor and applying the presumption of aggravation the Board finds the condition was aggravated by service. There is no affirmative evidence that the condition was not aggravated during this service or was caused by a supervening condition or event.

Consideration of service connection for asthma and bronchitis, on a basis other than as due to particulate matter or the PACT Act, is discussed in the Remand section below. The remand action is to afford the Veteran consideration of his claim under prior laws. If successful, the Veteran may be entitled to an earlier effective date of service connection than is afforded by provisions of 38 C.F.R. § 3.320 and the PACT Act.

REASONS FOR REMAND

The issue of service connection for asthma on a basis other than as pursuant to fine particulate matter.

The issue of service connection for bronchitis on a basis other than as pursuant to the PACT Act.

Although service connection for asthma and bron
Consideration of service connection for asthma and bronchitis, on a basis other than as due to particulate matter or the PACT Act, is discussed in the Remand section below. The remand action is to afford the Veteran consideration of his claim under prior laws. If successful, the Veteran may be entitled to an earlier effective date of service connection than is afforded by provisions of 38 C.F.R. § 3.320 and the PACT Act.

REASONS FOR REMAND

The issue of service connection for asthma on a basis other than as pursuant to fine particulate matter.

The issue of service connection for bronchitis on a basis other than as pursuant to the PACT Act.

Although service connection for asthma and bronchitis have been granted on a presumptive basis under 38 C.F.R. § 3.320 and the PACT Act, alternate theories of entitlement to service connection should be explored, as the claim was pending prior to the changes in law. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). The Board is therefore remanding the issue of entitlement to service connection for asthma and bronchitis on a basis other than as pursuant to the provisions of 38 C.F.R. § 3.320 and the PACT Act in light of the pre-decisional duty to assist error identified below.

The Veteran was afforded a VA examination in August 2020; however the opinion is inadequate because the examiner's rationale stated that asthma pre-existed service but did not provide an aggravation opinion. Further, at the August 2024 Board hearing, the Veteran testified that his bronchitis also pre-existed service, and no opinion to date has opined on whether the Veteran's bronchitis was aggravated by service. Significantly, the examination does not consider each period of service separately.

The December 1975 and September 1976 entrance examination described the nose, sinuses, lungs and chest as normal and noted no defects or diagnoses. Accordingly, the Veteran is presumed sound prior to his first period of service from September 1976 to June 1988.

The examiner did not discuss or consider evidence noting symptoms during this period of service. Specifically, a February 1987 record noted an assessment of probable chronic bronchitis/sinusitis may be secondary to allergic rhinitis. A June 1988 dental form the Veteran checked yes for a history of asthma and sinus problems. The 1988 separation examination was normal.

Concerning the second period of service from March 2003 to September 2003 the entrance examination in November 2002 described the nose, sinuses, lungs and chest as normal but clearly noted a diagnosis of asthma, controlled in the summary of defects and diagnoses. As such, asthma is noted and preexisted service for this period of service. Bronchitis was not noted, however, there is evidence suggesting the condition preexisted service and an opinion should be obtained. Specifically, records in the 80s noted symptoms, and an October 2002 record noted chronic bronchitis. A November 2002 record noted that symptoms related to chronic bronchitis with asthma were well controlled with medication. Another November 2002 record noted asthma and described it as controlled. In December 2002 he was also seen for a cough for the prior 3-4 weeks and noted to have an exacerbation of asthma.

During service, the record also reflects treatment and symptoms of respiratory conditions. A March 2003 record noted the Veteran had allergy induced asthma. Another March 2003 record diagnosed bronchitis. In April 2003 he was seen for asthma. Another April 2003 record noted he had been seen 3 times for wheezing and was diagnosed with asthmatic bronchitis. An April 2003 emergency record noted he was seen again as the medicine was not working and the diagnosis was upper respiratory infection, asthma unaffected by Augmentin. In June 2003 he was seen for bronchitis. An August 2003 record noted asthma, increase secondary to dust. January 2004 he was seen for complaints of a cough for 3 weeks and cough due to upper respiratory infection and bronchitis and asthma.

A May 2005 dental treatment record noted he had allergy induced asthma treated with medication. In June 2005 he was noted to have bronchitis and had an albuterol inhaler. In June 2005 he was seen for follow up for bronchitis and described purulent colored sinus discharge, improving cough and no short ness of breath. The assessment was acute sinusitis.

Accordingly, there was a pre-decisional duty to assist error requiring remand under the AMA to consider each period of service separately under the correct standards. 38 C.F
dust. January 2004 he was seen for complaints of a cough for 3 weeks and cough due to upper respiratory infection and bronchitis and asthma.

Accordingly, there was a pre-decisional duty to assist error requiring remand under the AMA to consider each period of service separately under the correct standards. 38 C.F.R. § 20.802(a); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (once VA undertakes providing a claimant with a medical examination, it has a duty to ensure the examination is adequate). Remand is necessary to correct the errors, to clarify whether these disabilities pre-existed service and to provide adequate medical opinions.

Entitlement to service connection for degenerative disk disease, lumbosacral spine.

The Veteran's military personnel records reflect that he may have additional active service in the National Guard. In this regard, the Veteran testified at the August 2024 Board hearing that while he was in the National Guard, Red Cross, he was involved in a motor vehicle accident, where he immediately felt a strain in his low back. The Veteran also stated this low back pain persisted as he also noticed it while he was lifting heavy boxes for the Red Cross. The Veteran testified that he was drilling for the Red Cross at the time.

However, the record does not contain these additional active service dates and drill status pay periods. Thus, the Board finds that a remand is necessary in order for the RO to obtain and provide information regarding the Veteran's periods of active duty, including any ADT (active duty for training), IDT (inactive duty for training), or active duty for special work, including work with the Red Cross. The Board notes that the Veteran testified that his service with the Red Cross was in 2004, but could not remember the dates, although he did state that he drilled with the Red Cross once a month. The Board acknowledges that the Veteran finished one period of active duty service in September 2003 and began his next active duty service in September 2005. As such, further information on any National Guard service, including with the Red Cross, between September 2003 to September 2005, is necessary as the Veteran testified he injured his lumbar spine sometime in 2004.

Accordingly, the Board finds that a remand is required to obtain information regarding any additional active duty dates.

Entitlement to an initial rating in excess of 10 percent for left hip degenerative joint disease with trochanteric bursitis, with limitation of extension.

Entitlement to an initial compensable rating for left hip degenerative joint disease with trochanteric bursitis, with thigh impairment.

The Board finds additional development is necessary prior to final adjudication of these matters. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

The Veteran attended VA hip conditions examination in August 2020. The Veteran reported constant dull pain in his left hip that varies in intensity based on activity. No flare-ups were reported and the Veteran did not use assistive devices for his hip disabilities. In that same examination, however, the Veteran reported he experienced pain with motion of the hips and indicated he was unable to run due to pain over the hip area. In discussing repeated use over time the examiner noted there was pain that limited functional ability but the examiner was unable to describe in terms of range of motion as "any answer is mere speculation." The examiner did not further explain why this required speculation. Jones v. Shinseki, 23 Vet. App. 382, 393-92 (2010). Furthermore, at the August 2024 Board hearing, the Veteran reported the condition increased with flare-ups with walking and noted use of a cane.

In light of the Veteran's testimony as to flare-ups and assertion that the VA examination is not adequate, remand is warranted for an examination to assess the severity of his hip disabilities and to account for the lay statements given at the August 2024 Board hearing.

Therefore, the Board finds there is not an adequate examination of record regarding the current severity of the Veteran hip disabilities that accounts for flare-ups. This is a pre-decisional duty to assist error requiring remand. 38 C.F.R. § 20.802. As such, a rem
-92 (2010). Furthermore, at the August 2024 Board hearing, the Veteran reported the condition increased with flare-ups with walking and noted use of a cane.

Therefore, the Board finds there is not an adequate examination of record regarding the current severity of the Veteran hip disabilities that accounts for flare-ups. This is a pre-decisional duty to assist error requiring remand. 38 C.F.R. § 20.802. As such, a remand is required for a new examination that adequately assess the severity of the Veteran's left hip disabilities.

The matters are REMANDED for the following action:

1. Obtain any outstanding VA or private medical treatment records.

2. Take all necessary steps to verify the Veteran's period(s) of active duty for training (ACDUTRA), inactive duty training (IDT), or active duty for special work for the period(s) from 1998 to 2001, and from September 2003 to September 2005

Reserve retirement point sheets are not adequate for this purpose; rather, the specific dates of the Veteran's ACDUTRA, IDT, or active duty for special work service are required. If this information or documentation is unavailable, then this fact should be documented and a formal finding of unavailability should be made with notice to the Veteran and his representative and they should be given an opportunity to respond.

3. Obtain an addendum opinion from an appropriate clinician to address the etiology of the Veteran's asthma and bronchitis for the period on appeal prior to August 10, 2022. The examiner must review the entire record and consider the Veteran's lay statements as to onset. The examiner is reminded that a presumption of soundness on entrance to service is afforded to the Veteran for asthma and/or bronchitis condition not noted on clinical examination for entrance to service.

Following a review of the entire record, to include the Veteran's lay statements, the examiner should determine

For the period of service from September 1976 to June 1988.

(a.) Whether it is at least as likely as not (nearly equal) the asthma and/or bronchitis is caused by service?

For the period of service from March 2003 to September 2003,

(b.) Whether it is at least as likely as not (nearly equal) that the asthma, which was noted on entrance, increased in severity during service?

(c.) Whether it is clear and unmistakable, or undebatable, that the Veteran entered service with any bronchitis condition.

If the examiner makes such a finding, he or she is asked to point to the evidence in the file that led to this conclusion.

(d.) If any bronchitis condition pre-existed service, then the examiner is asked to provide an opinion on whether it is also clear and unmistakable that the disability was NOT aggravated (that is, did not undergo a permanent increase in severity) during service.

(e.) If, and only if, the examiner is unable to find clear and unmistakable evidence supporting a pre-existing condition that was NOT aggravated during service, the examiner should then provide an opinion on whether it is at least as likely as not that Veteran's bronchitis had its onset during the Veteran's service or is otherwise causally related to any event or circumstance of his service?

4. Forward the Veteran's claims file to a qualified medical professional for an opinion regarding the nature and etiology of the Veteran's lumbar spine condition. If the examiner determines an additional medical examination is necessary, schedule the examination.

The examiner should address the following:

Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the lumbar spine condition originated during or is otherwise etiologically related to the Veteran's active service.

5. Afford the Veteran a VA examination to determine the current severity of his service-connected left hip disabilities. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed.

The VA examiner must:

Test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing.

Elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and after repeated use over time.

If such testing cannot be performed the examiner must provide the reasons why such testing cannot be performed.

To the extent possible, the examiner should identify any symptoms and functional impairments due to the left hip disabilities alone and discuss the effect of the Veteran's left hip disabilities on any occupational functioning and activities of daily
of his service-connected left hip disabilities. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed.

The VA examiner must:

Test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing.

Elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and after repeated use over time.

If such testing cannot be performed the examiner must provide the reasons why such testing cannot be performed.

If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

For all opinions, the examiner shoulder consider the following:

The term "as likely as not" does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. In comparison, "clear and unmistakable evidence" means with a much higher certainty than "at least as likely as not" or "more likely than not."

The examiner should explain the medical basis for the conclusions reached.

If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner's medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided.

H. SEESEL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Dourmashkin, Mark W.

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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