Citation Nr: 0708934 Decision Date: 03/27/07 Archive Date: 04/09/07 DOCKET NO. 02-16 353 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for asthma. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from June to August 1951. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions of March 2002 and later by the Department of Veterans Affairs (VA) Columbia, South Carolina, Regional Office (RO). FINDINGS OF FACT 1. The evidence of record establishes that asthma clearly and unmistakably existed prior to service. 2. The pre-existing asthma clearly and unmistakably did not permanently increase in severity during service. CONCLUSIONS OF LAW 1. The presumption of soundness at entrance is rebutted. 38 U.S.C.A. §§ 1101, 1111, 1112, 1113, 1131, 1137, 1153 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2006). 2. Pre-existing asthma was not aggravated during service. 38 U.S.C.A. §§ 1101, 1111, 1112, 1113, 1131, 1137, 1153 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the content requirements of a duty-to-assist notice have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Letters from the RO dated in September 2001, March 2004, November 2004, and March 2005 provided the veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. In addition, the letters specifically advised the veteran to submit any additional evidence that he had in his possession. The VA has no outstanding duty to inform the appellant that any additional information or evidence is needed. The veteran's duty-to-assist letter was provided prior to the adjudication of his claim. Although he was not provided with notification as to possible effective dates or ratings which could be assigned if service connection were to be granted, See Dingess v. Nicholson, 19 Vet. App. 473 (2006), this did not result in any prejudice in light of the denial of the service connection claim. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. The veteran was afforded a VA examination. His available treatment records have been obtained. He failed to appear for a scheduled hearing. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the veteran's claim. Therefore, no further assistance to the veteran with the development of evidence is required. The evidence which has been developed includes the veteran's service medical records. The veteran entered active service on June 11, 1951. A service record dated June 26, 1951, shows that the veteran was treated for mild asthma or allergic bronchitis. A record dated June 27, 1951, reflects that he felt weak but his asthma was better. It was indicated that the disorder existed prior to service. A record dated June 29, 1951 reflects that the veteran was very short of breath and was referred to a hospital. A service medical record dated in July 1951 reflects that the veteran stated that he had asthma symptoms intermittently during his entire life. During the attacks he had wheezing and tightness in his chest, and shortness of breath. The attacks were often precipitated by exertion, inclement weather, gas, smoke fumes, and lack of proper rest. At times, he reportedly had attacks three to four times a month. Other times, he was free of attacks for months. He had taken adrenaline, capsules, and used an atomizer on occasions. The diagnosis was asthma, perennial, severe, allergen unknown. He was returned to duty pending action of a medical board. A service hospital cover sheet reflects that the veteran's diagnosis was asthma, perennial, allergen unknown. It was stated that the disorder existed prior to service. The veteran's DD 214 indicates that the veteran was discharged on August 1, 1951, as a result of "Disability existing prior to entry on active service and not aggravated by Military Service." His total service was one month and 21 days. A VA post service medical treatment record dated in October 1952 reflects that the veteran recounted that ever since he could remember he had attacks of asthma. His last attack started three days earlier. On admission he was treated with adrenalin, and also given ephedrine and Phenobarbital. He improved markedly, and was discharged after nine days. The diagnosis was asthma, extrinsic, due to house dust. A letter dated in August 1954 from Dr. G. D. Stephenson, reflects that he treated the veteran since July 1954 for a severe case of asthma. Similarly, a medical statement from another private physician reflects that he treated the veteran for asthma in 1959. A note dated in December 2000 from a VA certified pharmacy technician indicates that the veteran had a history of asthma which was aggravated in the military, and that he should have a disability evaluation examination for asthma for service connection. The report of a respiratory disorders examination conducted by the VA in March 2002 contains the following impression: A 72-year-old white male with a history of asthma which was diagnosed before he joined the service. The patient could not get a pulmonary function test secondary to his cough. The patient's C-file was reviewed and in my opinion the patient did not have any permanent aggravation of his asthma during the military service but currently the patient's asthma is severe which requires nebulizers and he could not get a pulmonary function test which is the natural progression of the disease. In my opinion, even if the patient would not have joined the service, his asthma would have progressed the way it did right now. The patient had asthma before joining the service and in my opinion his tenure in the service had no affect in the asthma whatsoever. The Board has noted that the veteran's claim for service connection for asthma was previously denied in a decision of June 1953 on the basis that the asthma existed prior to service and was not aggravated by service. That decision was confirmed by the Board in September 1953. However, he has since presented new and material evidence in the form of a note from a VA health care provider indicating that he had a history of asthma which was aggravated by service. Accordingly, the RO properly reopened the claim. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Generally, veterans are presumed to have entered service in sound condition as to their health. See 38 U.S.C.A. § 1111 (West 2002); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The presumption of sound condition provides: [E]very 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 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; see also 38 C.F.R. § 3.304(b). This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby, 1 Vet. App. at 227. A history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. Determinations should not be based on medical judgment alone as distinguished from accepted medical principles, or on history alone without regard to clinical factors pertinent to the basic character, origin and development of such injury or disease. They should be based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof. 38 C.F.R. § 3.304(b)(1). There has been a change in the interpretation of the law with respect to the adjudication of claims involving pre-existing conditions and the application of the presumption of soundness. Essentially, under 38 U.S.C.A. § 1111, as recently interpreted under Cotant v. Principi, 17 Vet. App. 116 (2003), and VAOPGCPREC 3-2003 (July 16, 2003), mandates that, to rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The burden of proof is on the government to rebut the presumption of sound condition upon induction by clear and unmistakable evidence 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. Vanerson v. West, 12 Vet. App. 254, 258 (1999); Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). The Court has defined the word "unmistakable" as an item which "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson, 12 Vet. App. at 258 (quoting WEBSTER'S NEW WORLD DICTIONARY 1461 (3rd Coll. Ed. 1988)). See also Crippen v. Brown, 9 Vet. App. 412 (196). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The service medical records include a pre-enlistment examination which reflects that he was found to be normal on evaluation. Therefore, there is no examination disclosing defects when the veteran entered active duty, and the veteran is entitled to a presumption of soundness. The Board must next determine whether, under 38 U.S.C.A § 1111 and 38 C.F.R. § 3.304(b), there is clear and unmistakable evidence that a disease or injury existed prior to service. The Board finds that asthma clearly and unmistakably pre-existed service. The record service medical records reflect medical opinion that the disorder existed prior to enlistment. In addition, the VA examiner also concluded that the disorder existed prior to service. The Board notes that no other health care provider has refuted this finding. The Board finds that such evidence establishes by clear and unmistakable evidence that the disorder existed prior to service. The VA medical professional who reviewed the claims file was in the best position to make a determination that a disease existed prior to service and is competent to make such a determination. Additionally, the determination is in agreement with the history which he himself gave during service. Finally, the Board notes that the veteran conceded in his written statements that asthma existed prior to service. On his substantive appeal statement he said that he told them at the induction center that he had asthma. His primary contention is simply that such a disorder was aggravated by service. For these reasons, the Board is left with the distinct opinion that the asthma clearly and unmistakably existed prior to service for the reasons stated above, and there is no doubt to be resolved. See Gilbert, 1 Vet. App. at 55. The next question is whether the pre-existing asthma was aggravated during service. See VAOPGCPREC 3-2003 (July 16, 2003) (to rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service). The veteran asserts that his asthma disorder was aggravated in service, as he was undergoing rigorous training which caused such aggravation. The Board has carefully reviewed the evidence of record and finds that the pre-existing asthma clearly and unmistakably was not aggravated during service. The service medical records show that the veteran was treated during service with medications, as he had been prior to service. The symptoms which he reported during service were essentially the same symptoms which he had reported prior to service. The service medical board concluded that the disorder had not been aggravated. Similarly, the VA doctor who examined the veteran and reviewed the file in March 2002 concluded that the pre-existing asthma disorder had not been permanently worsened by his experiences in the military. A medical professional is in the best position to make a determination that a disease was not aggravated in service. This examiner clearly reviewed the service medical records. The examiner concluded, in essence, that there was no evidence that the veteran's psychiatric disorder was made worse during the veteran's service. This is competent evidence to support the Board's determination that the psychiatric disorder clearly and unmistakably was not aggravated during service. Although the veteran has presented a written statement from a VA pharmacy technician who indicates that the veteran had a history of asthma which was aggravated in service, the fact that the veteran's own account of the etiology of his disability was recorded in his medical records is not sufficient to support the claim. In LeShore v. Brown, 8 Vet. App. 406, 409 (1995), the Court held that: Evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute "competent medical evidence"...[and] a bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional. While the veteran has reported his own belief that service aggravated his asthma, he is not competent to make such a conclusion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). For the reasons stated above, the Board finds that the presumption of soundness at entrance is rebutted, and the evidence of record clearly and unmistakably shows that the veteran asthma prior to entering service and that the asthma was not aggravated by service. Because the Board has determined that the disorder existed prior to service and was not aggravated by service, there is no basis to consider service connection based upon incurrence in service. Accordingly, service connection for asthma is denied, and there is no doubt to be resolved. See Gilbert, 1 Vet. App. at 55. ORDER Service connection for asthma is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs