Citation Nr: 0714778 Decision Date: 05/17/07 Archive Date: 06/01/07 DOCKET NO. 02-08 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Whether new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for asthma. 2. Entitlement to service connection for asthma. 3. Entitlement to service connection for sinus disease, including as secondary to asthma. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. W. Harley, Associate Counsel INTRODUCTION The veteran had active service from July 1963 through May 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The case is now before the Board for appellate review. FINDINGS OF FACT 1. The veteran's claim for service connection for asthma was denied in May 1970 and not appealed. 2. Since May 1970, medical opinions have been obtained suggesting that the veteran's asthma onset as a result of military service, or was aggravated by military service. 3. There is no competent medical evidence to show that the veteran's asthma existed upon his entry into active service. 4. There is competent medical evidence to show that the veteran's current asthma diagnosis originated in service. 5. There is competent medical evidence to show that the veteran's current sinus disease is a result of his asthma. CONCLUSIONS OF LAW 1. New and material evidence has been submitted to reopen a claim for entitlement to service connection for asthma; the claim is reopened. 38 C.F.R. § 3.156(a) (2001). 2. It is as likely as not that the veteran's asthma was incurred in service. 38 U.S.C.A. §§ 1111, 1131, 5107 (West 2005); 38 C.F.R. §§ 3.102, 3.303(a), 3.304(b) (2006). 3. The criteria for service connection for sinus disease secondary to service-connected asthma are met. 38 C.F.R. § 3.310 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is seeking to reopen his claim for service connection for asthma, as well as seeking service connection for a sinus disease secondary to his asthma. The provisions of the May 2004 Board remand have been met and the case is ready for appellate review. New and Material Evidence The veteran is seeking to reopen his claim for service connection for asthma. A claim that has been denied, and not appealed, will not be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302(a). The exception to this rule provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. The regulation regarding new and material evidence was amended during the course of this appeal. See 38 C.F.R. 3.156(a) (2005). This amendment applies only to claims to reopen a finally decided claim received on or after August 29, 2001. The veteran's request to reopen his claim was filed in April 2001, before the amendment's effective date. Therefore, the amended regulation does not apply here. In this case, new and material evidence means evidence not previously submitted to agency decision makers that bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and that, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001). With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim. Evans v. Brown, 9 Vet. App. 273 (1996). However, the specified bases for the final disallowance must be considered in determining whether the newly submitted evidence is probative. Id. Such evidence must tend to prove the merits of the claim as to each essential element that was a specified basis for that last final disallowance. Id. While the RO ultimately reopened the veteran's claim for service connection for asthma and considered the claim on a de novo basis, the Board is not bound by that determination and is, in fact, required to conduct an independent new and material evidence analysis in claims involving final rating decisions. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The veteran's claim for service connection for asthma was originally denied in March 1970 on the basis that the veteran's asthma existed prior to service and was not aggravated by service. Since March 1970, medical opinions have been obtained suggesting that the veteran's asthma onset as a result of military service, or was aggravated by military service. In particular, Dr. Canale, a private physician, opined in July 2003 that the veteran's asthma was aggravated by service. Also, in May 2005, a VA examiner stated that the veteran's asthma "more likely than not had its onset during active service." Because these statements were not associated with the claims folder at the time of the March 1970 denial, and because they lend support to the claim, specifically to the basis of the March 1970 disallowance, they are new and material to the claim. Accordingly the claim is reopened. Service Connection - Asthma For service connection, a claims folder must contain (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Pond v. West, 12 Vet. App. 341, 346 (1999). In other words, entitlement to service connection for a particular disability requires evidence of the existence of a current disability and evidence that the disability resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Whether the veteran has a current diagnosis of asthma is not in question. The most recent VA examination in May 2005 confirms the diagnosis, which is supported by private treatment records, as well as the January 2002 VA examination report. The veteran has a current diagnosis of asthma. The question in this case is whether the veteran's asthma preexisted service, and, if so, whether the condition was aggravated by service. A veteran is afforded a presumption of sound condition upon entry into service, except for any defects noted at the time of entry examination. That presumption can be rebutted by clear and unmistakable evidence that a disability existed prior to service and was not aggravated by service. See Monroe v. Brown, 4 Vet. App. 513, 515 (1993); Green v. Derwinski, 1 Vet. App. 320, 322 (1991); 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active service when an increase in disability is shown 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.A. § 1153; 38 C.F.R. § 3.306(a). In this case, entry examinations are negative as to the existence of asthma. In an April 1962 examination, prior to his entry into service, the examiner made no notation of any history of asthma and noted no respiratory abnormality. Upon actual entry of service in July 1963, the veteran was again examined and no asthma was noted. Because there is no abnormality noted at service entry, the veteran is entitled to a presumption of soundness, which, under 38 C.F.R. § 3.304(b), can only be rebutted by clear and unmistakable evidence that a disability existed prior to service. In March 1964, the veteran was afforded a Medical Board examination to determine his fitness for service due to asthma. This was following episodes of trouble breathing during training and climbing exercises. See August 2003 Board hearing transcript, page 5. The March 1964 examination report clearly shows the asthma diagnosis that led to the veteran's medical discharge in May 1964. The March 1964 separation examination also notes the veteran's asthma. In the narrative summary accompanying the Medical Board recommendation, it was noted that the veteran's asthma was of lifelong duration, existed prior to service, and was not aggravated by service. The notation that the veteran's asthma began in infancy was presumably made based upon the veteran's reported history at the time. There is no medical evidence of asthma prior to service. The veteran's statements are not competent medical evidence of a diagnosis. Although lay evidence is acceptable to prove symptomatology over a period of time, lay testimony is not competent to prove a matter requiring medical expertise, such as an opinion as to diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Competent medical evidence showing asthma prior to service is required to rebut the veteran's presumption of soundness. There is no such medical evidence in this file. The veteran's own reports of asthma symptoms, for which he is competent to testify under Espiritu, do not suggest that he had asthma upon entry into service. He reports that he did have asthma in childhood, but had no asthma attacks after age 12. See August 2003 Board hearing transcript, page 4. The veteran's mother and siblings also submitted statements in November 2005 that support the notion that the veteran had no asthma attacks following adolescence. The record is devoid of medical evidence of asthma at the time of the veteran's entry into service. As such, because his entry examinations are negative as to any respiratory abnormality, the veteran is presumed to have entered service in sound condition. 38 C.F.R. § 3.304(b). Because the March 1964 Medical Board examination clearly shows a medical diagnosis of asthma during service, the second element for service connection under 38 C.F.R. § 3.303(a) is met. As such, the one question remaining is whether there is a medical nexus between the veteran's current asthma disability and the asthma diagnosed in service. In January 2002, the veteran was afforded a VA examination. The examiner reviewed the claims folder and examined the veteran, upon which time the following diagnosis was made: 1) sinus disease associated with chronic allergic rhinitis, as well as a deviated septum, most likely associated with bronchial asthma; 2) inflamed or hypertrophy of turbinates bones, compatible with allergic rhinitis and associated with asthma; and 3) mild obstructive pulmonary disease compatible with an irreversible lung defect caused by bronchial asthma. In an addendum to that report, the examiner opined that the veteran's present condition is not associated with his period of service, because it is a "preexisting poorly controlled condition." This opinion was based upon the Medical Board examination, which, as discussed above, is not sufficient to show that the veteran's asthma preexisted service. As such, this negative nexus opinion is of little use in deciding this claim. The claims folder also contains treatment records from the veteran's private physicians, including Doctors Phillips, Scalco, Canale, Joslyn, Brooks, Lake, and Stumpf. These records lend credence to the veteran's current diagnosis, but there is minimal evidence regarding a medical nexus. An October 2002 statement from Dr. Canale stated that he began treating the veteran in the "early 1990s," which is well after service. In July 2003, Dr. Canale submitted a statement in which he opined that it is as likely as not that the veteran's asthma was aggravated by his military service. The doctor, however, provided no basis for the opinion and made no suggestion that he had reviewed the veteran's service medical records. As such, the implication that the veteran's asthma was a preexisting condition that was aggravated by active service is made with little merit. Following the Board's May 2004 remand, the veteran was afforded updated VA examinations. In April 2005, a VA nose, sinus, larynx and pharynx examiner reviewed the claims folder and examined the veteran, after which she diagnosed allergic rhinitis, chronic pansinusitis, and asthma. The examiner stated that "given the fact that he had no complaints of allergic rhinitis or sinusitis in the military...it is unlikely with probability very less than 50% that any identified asthma...had its onset in active service." The examiner did not believe that the veteran's asthma was etiologically related to, or increased in severity beyond its natural progression as a result of, activities performed in active service. This evidence clearly weighs against the idea that there is a nexus between the veteran's current disability and service. In a May 2005 VA respiratory examination, a different examiner also reviewed the claims folder and examined the veteran. The examiner confirmed the veteran's asthma diagnosis and stated that it "is more likely than not" that it "had its onset during active service" and "is etiologically related to his present problem." This opinion is the most recent in the claims folder. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Here, there are two opinions that have relatively little weight in this determination. The VA's negative nexus opinion in January 2002 relied upon the notion that the veteran's asthma preexisted service, and Dr. Canale's July 2003 positive nexus opinion was provided with absolutely no basis. Since then, there have been two VA examinations, also with opposing results. See April 2005 negative nexus opinion and May 2005 positive nexus opinion. Considering asthma's respiratory nature, and considering that the positive VA nexus opinion came from the May 2005 respiratory examination, it may be said that the May 2005 opinion should be given greater weight than the April 2005 examination, which was primarily for the veteran's sinus condition. At the very least, the evidence regarding whether there is a medical nexus between the veteran's current asthma diagnosis and the diagnosis made in service, is in equipoise. As such, under 38 U.S.C.A. § 5107, the veteran's claim for service connection for asthma must be granted. Service Connection - Sinus Disease The veteran is also seeking service connection for a sinus disease. While the service medical records are devoid of evidence of treatment for a sinus condition, the veteran contends that his sinus disease is secondary to his asthma, which was deemed service connected, above. Thus, the veteran is seeking service connection for sinus disease on both a direct basis and as secondary to his service connected asthma. Under 38 C.F.R. § 3.310(a), service connection may be granted on a secondary basis for a disability that is proximately due to a service-connected disability. The most recent VA sinus examination shows that the veteran is currently diagnosed with allergic rhinitis, chronic pansinusitis, and asthma. See April 2005 VA examination report. However, treatment for allergy and sinus problems dates back to March 1970. Dr. Scalco, in March 1970, stated that the veteran's primary problems "are all connected with an allergic problem" and that the veteran's allergic problem was a continuation of the asthma diagnosed in service. There are voluminous private medical records showing treatment for sinus and allergy issues over the years following Dr. Scalco's March 1970 statement, including records from sinus surgeries in June 1996 and January 2001. The veteran reported at his hearing that he has had six sinus surgeries over the last approximately thirty years. See August 2003 Board hearing transcript, page 10. In January 2002, the veteran was afforded a VA examination. The examiner reported, based upon physical examination and chest x-ray that the veteran has "significant sinus disease associated with his chronic allergic rhinitis, as well as his deviated septum, which is most likely associated with his history of bronchial asthma." In July 2003, Dr. Canale submitted a handwritten note stating that the veteran's "current sinus problems are caused by his asthma." The doctor, however, provided no explanation or basis for this opinion. In April 2005, the veteran was afforded another VA examination. The examiner noted that the first report of a sinus problem is the March 1970 report of allergic rhinitis. This examiner did not believe that the asthma caused the veteran's allergic rhinitis or his pansinusitis, both diagnosed at the time of that examination. The examiner explained this conclusion by noting that there were no complaints of sinus problems in service and concluding that the sinus disease, therefore, did not start in service. This, however, is not the question. The issue is whether the veteran's sinus disease was proximately caused by his service connected asthma. The March 1970 doctor answered that in the affirmative, while the April 2005 VA examiner essentially provided a nonanswer. In a May 2005 VA respiratory examination, the examiner noted, based upon physical examination and a review of the record, that the veteran has "significant sinus disease that is more likely than not had its onset during active service and is etiologically related to his present problem." While this was the respiratory, rather than sinus VA examination, this examiner more directly answered the question at issue than the April 2005 sinus examiner. When looked at as a whole, the preponderance of medical evidence supports the veteran's claim. Both the March 1970 private physician, seemingly familiar with veteran's condition at the time, as well as the May 2005 VA examiner support the notion that the veteran's sinus and allergy problems are a result of his service-connected asthma. The March 1970 statement was made years before this claim was ever made by the veteran, which gives it even greater credibility. This evidence outweighs the opinion by the April 2005 examiner, which does not address the issue of secondary service connection. Thus the positive evidence outweighs the negative evidence and service connection is granted for sinus disease secondary to service-connected asthma. Duties to Notify and Assist A discussion addressing whether VA's duties to notify and assist the veteran have been complied with is not warranted. To the extent necessary, VA has fulfilled its duties to notify and to assist the veteran in the development of his claim. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). In light of the determinations reached in this case, no prejudice will result to the veteran by the Board's consideration of this appeal at this time. Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). ORDER New and material evidence has been submitted to reopen a claim of entitlement to service connection for asthma. Entitlement to service connection for asthma is granted. Entitlement to service connection for sinus disease as secondary to service-connected asthma is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs