Citation Nr: 0706873 Decision Date: 03/08/07 Archive Date: 03/20/07 DOCKET NO. 05-20 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for asthma. ATTORNEY FOR THE BOARD Barbara C. Morton, Associate Counsel INTRODUCTION The veteran served on active duty from October 1964 to September 1968. This matter is before the Board of Veterans' Appeals (Board) from a January 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied service connection for asthma. The RO issued a notice of the decision in January 2005, and the veteran timely filed a Notice of Disagreement (NOD) in February 2005. Subsequently, in June 2005 the RO provided a Statement of the Case (SOC), and the veteran timely filed a substantive appeal. The RO provided Supplemental Statements of the Case (SSOCs) in October 2005 and August 2006. The veteran initially had requested a Travel Board hearing, but subsequently withdrew that request in writing in December 2006. FINDINGS OF FACT 1. A diagnosis of asthma was not noted on the veteran's Enlistment Report. 2. Asthma became manifest during the veteran's active service. 3. The evidence does not clearly and unmistakably demonstrate that the veteran's asthma preexisted service or that it was not aggravated therein. 4. The veteran has had chronic asthma since service. CONCLUSION OF LAW The presumption of soundness has not been rebutted; the veteran's asthma was incurred during service. 38 U.S.C.A. §§ 1110, 1111, 1131 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.304 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The enactment of the VCAA, codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002) significantly changed the law prior to the pendency of this claim. VA has issued final regulations to implement these statutory changes. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2005). The VCAA provisions include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and they redefine the obligations of VA with respect to the duty to assist the veteran with his claim. In the instant case, the Board has rendered a decision in favor of the veteran, finding that service connection for asthma is warranted, and therefore, a further discussion of the VCAA duties is unnecessary at this time. It should be noted, however, that the RO should cure any potential defects in notice, as would be demonstrated by a failure to notify the veteran of all five elements of a service connection claim (to include the type of evidence necessary to establish a disability rating and the effective date for the claimed disability), or assistance provided by VA, prior to its determination of a proper disability rating and effective date for the veteran's service-connected disability. See Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004) (holding that proper VCAA notice must "precede an initial unfavorable [RO] decision"); see also Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006) (holding that the VCAA notice requirements contained in 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, which include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability). II. Law & Regulations a. Service Connection The Court has held that "[f]or service connection to be awarded, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury." Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006); accord Disabled Am. Veterans v. Sec'y of Veterans Affairs, 419 F.3d 1317, 1318 (Fed. Cir. 2005); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). If the veteran fails to demonstrate any one element, denial of service connection will result. Disabled Am. Veterans, supra; Coburn, supra. With respect to the "current disability" prong, the Court has recognized that, "[i]n the absence of proof of a present disability there can be no valid claim" of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Caluza v. Brown, 7 Vet. App. 498, 505 (1995) (recognizing that "[a] service-connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability"); see also Chelte v. Brown, 10 Vet. App. 268, 271, 272 (1997) (holding that the veteran's claim was not well grounded when the evidence "establishe[d] only that the veteran had a [disability] in the past, not that he has a current disability"). Turning to the second, "incurrence in or aggravation by service" prong, the Court has expressed that "[s]ervice connection for VA disability compensation . . . will be awarded to a veteran who served on active duty during a period of war . . . for any disease or injury that was incurred in or aggravated by" such service. Caluza, 7 Vet. App. at 505. VA may grant service connection, despite a diagnosis after discharge, when all the evidence, including that pertinent to service, establishes that the veteran incurred the disease during service. See 38 C.F.R. § 3.303(d); accord Caluza, supra ("When a disease is first diagnosed after service, service connection may nevertheless be established by evidence demonstrating that the disease was in fact 'incurred' during the veteran's service, or by evidence that a presumption period applied"). With respect to the third, "nexus" prong, the veteran must demonstrate through medical evidence that "a causal relationship" exists between the present disability and an in-service event. Shedden, 381 F.3d at 1167. Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence must demonstrate that the claim is plausible. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Mere lay assertions of medical status do not constitute competent medical evidence. Moray v. Brown, 5 Vet. App. 211, 214 (1993) ("lay persons are not competent to offer medical opinions"). Alternatively, a veteran can establish a nexus between service and the current disability by offering medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117, 120 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). In addition, 38 C.F.R. § 3.303(b), which sets forth provisions governing chronicity and continuity of diseases, provides that "[w]ith chronic diseases shown as such in service (or within the presumptive period under § 3.304) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes." 38 C.F.R. § 3.303(b); accord Savage v. Gober, 10 Vet. App. 488, 495 (1997) (recognizing that a "veteran may utilize the 'chronic disease shown as such in service' provision when the evidence demonstrates: (1) that the veteran had a chronic disease in service, or during an applicable presumption period . . . ; and (2) that the veteran presently has the same condition"). In order for a disease to qualify as having been "chronic in service," § 3.303(b) requires a demonstration of "a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word 'Chronic.'" 38 C.F.R. § 3.303(b). Where a chronic disease has been identified in service, an evidentiary showing of continuity of symptomatology is not required. 38 C.F.R. § 3.303(b). Such a showing of continuity is necessary, however, "where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic . . . ." 38 C.F.R. § 3.303(b); see Savage, supra, at 495-96 (noting that "[i]f the evidence fails to demonstrate the applicability of the chronicity provision of § 3.303(b), a [veteran] may still obtain the benefit of § 3.303(b) (that is, providing a substitute way of showing in-service incurrence and medical nexus . . .) if continuity of symptomatology is demonstrated"). That is, "[w]hen the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim." 38 C.F.R. § 3.303(b); accord Grover v. West, 12 Vet. App. 109, 113 (1999) (noting that, according to § 3.303(b), "sufficient evidence is required to show continuity of symptomatology only if there is no evidence in service demonstrating that his disability was chronic"). b. Presumption of Sound Condition 38 U.S.C.A. § 1111 sets forth governing principles relating to the presumption of a wartime veteran's soundness of condition upon entry to service. 38 U.S.C.A. § 1111 (West 2005) (entitled "Presumption of sound condition"). It provides that "every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service." 38 U.S.C.A. § 1111. The implementing regulation, 38 C.F.R. § 3.304(b), similarly provides that "[t]he veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted." 38 C.F.R. § 3.304(b). A history of preservice existence of a disease or injury recorded at the time of examination does not constitute a notation of such a malady, but instead, must be considered with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). A veteran thus enjoys an initial presumption of sound condition upon service entry if the enlistment records do not reflect that the veteran has a disease or injury that subsequently becomes manifest during service. Wagner v. Principi, 370 F.3d 1089, 1096 (2004) (noting that "[w]hen no preexisting condition is noted upon entry to service, the veteran is presumed to have been sound upon entry," but that "if a preexisting disorder is noted upon entry to service, the veteran cannot bring a claim for service connection for that disorder"); see 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Such an initial presumption, however, is not absolute and may be rebutted. Wagner, 370 F.3d at 1092, 1096, 1097. The United States Court of Appeals for the Federal Circuit has interpreted § 1111 to "permit[] the government to overcome the presumption of soundness" upon a two-prong showing: it "must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness for wartime service . . . ." Id. If the government fails to demonstrate either prong, the rebuttal fails and the soundness presumption remains. See id., at 1096, 1097 (recognizing that the government's failure to rebut the soundness presumption means that "the veteran's claim is one for service connection"); see also Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993) (noting that if a veteran's disease "was first diagnosed while in service, the burden of proof is on the government to rebut the presumption of sound condition upon induction by showing that the disorder existed prior to service and, if the government meets this requirement, by showing that the condition was not aggravated in service") (Emphasis added). The government's "burden of proof is a formidable one," Kinnaman, supra, and it "means that an item cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258 (1999); accord Cotant, 17 Vet. App. at 131 (noting that "[t]he clear-and- unmistakable-evidence standard is an 'onerous' one"). III. Analysis a. Factual Background Service Medical Records (SMRs) The veteran's October 1964 Report of Medical Examination for Enlistment contains a completely normal clinical evaluation of all systems, to include the lungs, and in the accompanying Report of Medical History, the veteran conveyed that he did not currently have and had never previously had asthma. He also stated that he was in good health, except for a cold at the time. Also in October 1964, Dr. A.H., the veteran's father's personal physician, offered a letter indicating that he had known the veteran for approximately ten years and that "[t]o my knowledge, [the veteran] has had no asthmatic attacks for the past several years." A Chronological Record of Medical Care dated December 1964 indicates that the veteran had bronchitis. A May 1965 medical record notes the veteran's difficulty breathing, and the examiner diagnosed him with asthma. A January 1968 Chronological Record of Medical Care discloses a history of asthma and the veteran's complaints of wheezing. It also conveyed that the veteran had received an inhaler with good results and recommended that the veteran discontinue smoking cigarettes. At this time the veteran received a diagnosis of bronchitis. A June 1968 medical note indicates that the veteran had a history of asthma and daily use of an inhaler. The veteran's July 1968 Report of Medical Examination for Separation contains a completely normal clinical evaluation, to include that of the lungs. This document further disclosed the veteran's report that he had had asthma during childhood, with his last bad attack occurring in 1965, while on active duty and that he used a nebulizer as needed. This Report also stated that the veteran had no complications or sequelae at this time. In the companion Report of Medical History, the veteran indicated that he had asthma and shortness of breath. He also reported that he was in only fair health, as his asthma was bothering him. Post-Service Records A September 2004 private medical report by Dr. L.T. contains a diagnosis of asthma. In October 2004, the veteran's brother, a dental surgeon, submitted a letter discussing his personal knowledge of the veteran's history of asthma. He noted that the veteran had received continuous treatment for this disorder since his service discharge, to include the use of inhalers. The veteran's brother reviewed the veteran's SMRs and offered his opinion that the veteran's asthma likely was aggravated by his military service, citing the veteran's emergency room treatment for an asthma attack six months after his enlistment, his continued breathing difficulty and a request for inhalers. In April 2005 the veteran submitted to a VA examination, where he recalled having had respiratory problems as a child, which he outgrew during teenage years. He did not remember receiving medication for any respiratory problems at this time. The veteran also stated that during basic training in 1964, he had become extremely short of breath, and since that time, he had experienced a worsening shortness of breath. After performing pulmonary function tests, the clinician diagnosed the veteran with asthma causing mild and bronchodilator reversible chronic obstructive pulmonary disease (COPD). He offered no opinion as to whether the veteran's active service or any incident thereof had caused or aggravated his diagnosed asthma. In a February 2006 statement, the veteran indicated that prior to entering active service, he never visited the hospital for an asthma attack and that he was active in sports. The veteran also explained that he had requested the October 1964 letter from Dr. A.H., because when he went to enlist, he had mentioned to the recruiter that he had asthma at a very young age. The recruiter had suggested that the veteran obtain a doctor's letter indicating that he was not bothered by asthma at that time so as to ensure his ability to enlist. In a July 2006 statement, the veteran's mother indicated that the veteran had breathing and allergy problems as a child. She also conveyed that a doctor had diagnosed the veteran with "probable" asthma during this time prior to his active service. The veteran's mother further indicated that during his teenage years, the veteran's asthma and breathing difficulties had not hindered is ability to partake in athletics and that he did not receive any medical treatment (such as inhalers or other prescriptions) when he experienced shortness of breath. She noted that during the time that the veteran lived with her up until he enrolled in college, he never visited the hospital for asthma or respiratory treatment. In an August 2006 correspondence, the veteran indicated that from the time of his severe asthma attack during service, he had to use inhalers. b. Discussion The Board determines that the presumption of soundness attaches in the instant case, that the veteran had chronic asthma during service and that he has had asthma ever since service. The Board first finds that the existence of asthma was not "noted" on the veteran's entrance examination within the meaning of 38 C.F.R. § 3.304(b) and that such a disorder did not clearly and unmistakably pre-exist service. Specifically, as discussed above, the veteran's Report of Medical Examination for Enlistment contains a completely normal clinical evaluation, to include a normal assessment of the lungs. Thus, a diagnosis of asthma was not in fact recorded on the veteran's Enlistment Examination Report. In addition, while the Board acknowledges that January 1968 and June 1968 Chronological Records of Medical Care indicate that the veteran had a history of asthma, such a mere recited history of a pre-service disorder or injury, which was not recorded on the enlistment examination report, does not constitute a notation of such a malady, but instead, must be considered with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). Moreover, although the Board acknowledges Dr. A.H.'s October 1964 letter indicating that the veteran had not experienced an asthmatic attack for years, thus intimating that the veteran had had asthma prior to service, Dr. A.H. admittedly never treated the veteran as his own patient, and therefore the Board considers him not competent to offer a medical opinion on the existence or nonexistence of an asthma disorder in the veteran. The veteran's mother's July 2006 statement that the veteran had been diagnosed with "probable" asthma as a child further calls into question (and renders debatable) whether the veteran actually had asthma before service. In view of the foregoing, it cannot be said undebatably or definitively that the veteran's current asthma existed prior to service. Thus, the presumption of soundness is not rebutted. Wagner, supra. In addition, the record does not clearly and unmistakably demonstrate that the veteran's asthma did not permanently worsen during service. In addition to being treated for asthma while on active duty, it is apparent that the veteran remained symptomatic at the time of his separation examination as evidence by the report of medical history dated at that time and he currently has a diagnosis of asthma. The statement from the veteran's brother is also competent evidence that supports a finding of service incurrence. While clearly not a specialist in respiratory diseases, the brother nevertheless has some degree of competence to provide an opinion on the questions of diagnosis and approximate onset date by virtue of his doctorate in dentistry and there is no contrary opinion of record. The veteran's mother and brother have both attested to the fact, based on their own personal observations, that the veteran's asthmatic symptoms have increased in severity since his active service, as manifested by use of treatment such as inhalers and at least one emergency room visit during service. In view of the foregoing, it cannot be undebatably maintained that the veteran's asthma was not aggravated or permanently worsened by his active service or any incident thereof. Accordingly, the Board finds that the aggregate state of the record does not clearly and unmistakably (i.e., undebatably) show that the veteran's asthma pre-existed service or that his asthma was not aggravated by service. Thus, the presumption of sound condition on entering service has not been successfully rebutted and remains intact. The medical evidence of record clearly indicates that the veteran was diagnosed with asthma during service and currently is diagnosed with this disorder. Considering these diagnoses and the veteran's report of continuous symptoms since discharge, which have been medically diagnosed as asthma, and the statement from the veteran's brother, who has some degree of medical expertise on the matter, the Board finds that the evidence supports the claim for service connection for asthma. ORDER Service connection for asthma is granted subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs