Citation Nr: 0711972 Decision Date: 04/24/07 Archive Date: 05/01/07 DOCKET NO. 03-26 751 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for bronchial asthma. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served on active duty from December 1992 to November 1995, and from January 1999 to February 2002. This matter comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) on appeal from rating decisions of the VA Regional Office in Buffalo, New York that denied service connection for bronchial asthma. The case was remanded by a decision of the Board dated in May 2006. FINDINGS OF FACT 1. There is competent medical evidence of record that the veteran had asthma that clearly and unmistakably existed prior to service. 2. There is competent clinical evidence of record that pre- existing asthma clearly and unmistakably did not increase in severity beyond normal progression of the disease process. CONCLUSIONS OF LAW 1. Asthma clearly and unmistakably pre-existed service, and the presumption of soundness is rebutted. 38 U.S.C.A. § 1111 (West 2002& Supp. 2005); 38 C.F.R. §§ 3.303, 3.304(b) (2006). 2. Asthma clearly and unmistakably was not aggravated by service. 38 U.S.C.A. §§ 1110, 1153 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, it should be noted that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was promulgated in November 2000, and has imposed duties on VA to provide notice and assistance to claimants in order to help them substantiate their claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). The Act and implementing regulations include an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b) (2006). In addition, they define the obligation of VA with respect to its duty to assist the claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c) (2006). Considering the record in light of the duties imposed by the VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. As evidenced by the statement of the case and the supplemental statement of the case, the appellant has been notified of the laws and regulations governing entitlement to the benefit sought, and informed of the ways in which the current evidence has failed to substantiate the claim. These discussions also served to inform him of the evidence needed to substantiate the claim. The Board also finds that the statutory and regulatory requirement that VA notify a claimant of what evidence, if any, will be obtained by the claimant and which evidence, if any, will be obtained by VA, have been met. 38 U.S.C.A. § 5103(a); see Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159). In letters dated in May 2004, June 2006 and November 2006, the RO informed the appellant of what the evidence had to show to substantiate the claim, what medical and other evidence the RO needed from him, what information or evidence he could provide in support of the claim, and what evidence VA would try to obtain on his behalf. Such notification, in conjunction with the statements of the case, has fully apprised the appellant of the evidence needed to substantiate the claim. He has also been advised to submit relevant evidence or information in his possession. 38 C.F.R. § 3.159(b). The appellant has not been specifically notified regarding the criteria for rating any disability or an award of an effective date should service connection be granted, see Dingess v. Nicholson, 19 Vet. App. 473 (2006); however, neither a rating issue nor an effective date question is now before the Board. Consequently, the Board does not find that a remand is necessary in this regard. The Board would also point out that although sufficient notice required by the VCAA was not provided until after the RO initially adjudicated the veteran's claim, "the appellant [was] provided the content-complying notice to which he [was] entitled." Pelegrini v. Principi, 18 Vet. App. 112, 122 (2004). Consequently, the Board does not find that any late notice under the VCAA requires remand to the RO. Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA. See also Prickett v. Nicholson, No. 04-0140 (U.S. Vet. App. Sept. 11, 2006). The Board finds that VA has made the required efforts to assist the veteran in obtaining the evidence necessary to substantiate the claim on appeal. He was scheduled for a personal hearing on appeal in July2005 but failed to appeal. The case was remanded to the RO for further development in May 2006, to include VA examination. The appellant has been afforded at least two VA examinations, to include medical opinions, and the records from private physicians whom he has identified have been requested. There has been no indication from either the appellant or his representative that there is outstanding evidence that has not been considered. The Board thus finds that VA does not have a duty to assist that is unmet and that further assistance with respect to the claim is not required. See 38 U.S.C.A. § 5103A (a) (2); see also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Law and Regulations 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 (West 2002 & Supp. 2006). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2006). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). A veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence (obvious or manifest) that the disability existed prior to service will rebut the presumption of soundness. 38 U.S.C.A. § 1111; 38 C.F.R.§ 3.304(b) (2006);VAOPGCPREC 3-2003. 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.A. § 1153 (West 2002 & Supp. 2006); 38 C.F.R. § 3.306 (2006). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity. This includes medical facts and principles that may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Factual Background The veteran's service medical records contains an entrance examination report dated in September 1992 in which he reported asthma as child. A notation was recorded to the effect that he had had the last episode of such at age eight, and that there was no sequelae. The veteran's lungs and chest were evaluated as normal and no defect in this regard was noted. In Crowe v. Brown, 7 Vet. App. 238 (1994) the Court indicated that the presumption of soundness attaches only where there has been an induction medical examination, and where a disability for which service connection is sought was not detected at the time of such examination. Thus, it appears that the presumption of soundness applies with respect to the appellant's respiratory status at service entrance. The veteran now contends that while he did have asthma as a child prior to service, it had resolved by the time he reached elementary school, but was exacerbated by the rigors of active duty, especially physical training. 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 this requirement is met, by showing that the condition was not aggravated in service. See 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 cannot be misinterpreted and misunderstood, i.e., it is undeniable." 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). The presumption of aggravation may only be rebutted if "there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 C.F.R. § 3.303(a) (2006). The evidence reflects that despite what the appellant now claims, there is no indication in the service medical records that the asthma he reportedly had as a child reappeared during service. The evidence contains extensive service medical records from his first and second tours of active duty that occasionally referenced a history of asthma, but showed no treatment whatsoever for the disorder. In December 1992, he was seen for complaints of throat pain and reported bronchitis, but received only a diagnosis of sore throat for which lozenges were prescribed. A Fort Drum Individual Health and Wellness Survey dated in January 1999 noted a history of asthma as child but no problems currently. He was treated in June 2000 and on another undated occasion for symptoms that include a head cold, sinus pressure, pollen allergy, congestion, difficulty breathing, sore throat, sneezing, coughing up green phlegm, headaches and blurred vision, but no assessment or reference to asthma was recorded. During medical board proceedings in November 2001 for disability not pertinent to this appeal, it was reported that he had no ongoing conditions except for complaints related to the back. Physical examination disclosed bilateral breath sounds that were clear to auscultation. No reference to asthma was noted. Military clinical records do indicate that upon an army enlistment in March 1997, the appellant was referred for pulmonary consultation after a history of asthma was reported. A remote history of childhood asthma that was currently asymptomatic was noted. It was reported that pulmonary function tests were interpreted as showing a small but not statistically significant reduction in lung function. The veteran underwent further consultation by an outside medical provider at the bequest of the military physician. In a report dated in April 1997, the appellant again reported history of asthma as a child treated with nebulizers and inhalers, but indicated he had had no symptoms since approximately age 9 or 10. He denied frequent coughs, bronchitis, shortness of breath, dyspnea on exertion or wheezing. He reported that he did have an episode of 'flu' one week prior to evaluation with associated myalgias, cough and scant yellow-greenish sputum that had subsequently resolved. Following physical examination and spirometry testing, an impression was provided of small, but technically not significant reduction in FEV1 following exercise, suggestive but not diagnostic of possible mild exercise- induced bronchospasm. It was opined that the recent episode of flu/bronchitis may have played a role in the FEV1 following exercise. No diagnosis of asthma was recorded. The records do not show what transpired following this enlistment attempt, although the veteran was initially considered acceptable. However, his DD-214 for the second period of active duty reflects that prior to enlistment in 1999, he had three years and four months of inactive service. A VA examination was conducted in March 2002 whereupon the veteran provided history to the effect that his asthma had disappeared in childhood but was reactivated when he joined the army and engaged in physical training. He stated that he had experienced difficulty breathing and had been issued inhalers as a 'courtesy' during service. The examiner noted that there was no official medical record of his being treated for this. A normal chest examination was obtained on current physical examination. Pulmonary function tests were reported to be consistent with mild airway obstruction both pre and post bronchodilator. The examiner stated that the overall impression was recurrence of asthma as described. The record reflects that the veteran filed a claim in May 2002 and indicated that he had asthma that was aggravated during his first tour of duty in 1995. The veteran's private physician, N. H. Inhaber, M.D., F.R.C.P.C., wrote in September and November 2003 that the appellant suffered from persistent daily symptoms of asthma for which medication had been prescribed. Pursuant to the Board's May 2006 remand, the veteran was afforded a VA respiratory examination in November 2006 and provided the same history as recounted on former VA examination. The claims folder was reviewed. Following physical examination and survey of online medical authority entitled "Natural History of Asthma" relating to asthma beginning in childhood, the examiner stated that it was at least as likely as not that the veteran's current asthma and the episodes he described while in the military were consistent with the natural history of childhood asthma. The examiner further opined that there was no evidence that the veteran's current status relating to asthma was caused, exacerbated or aggravated by military service Legal Analysis The record reflects that during active duty and upon enlistment for inactive duty, the veteran was consistent in his report of asthma pre-existing service. The Board recognizes that a veteran's statement made in service relating to the origin or incurrence of any disease or injury, if against his or her own interest is of no force and effect if other data do not establish the fact. See 38 C.F.R. § 3.304(b)(3) (2006)). It is shown, however, that medical personnel at that time did not challenge his statements that the condition pre-existed service, nor does the post service medical evidence contradict his assertions. Thus, there is no reason to question the veracity of the veteran's historical statements, or to conclude that he was not aware of what he was saying, or that he had cause to invent a history of disease without some actual precedent for such in his life. The presumption of soundness upon entry into service may be rebutted with "contemporaneous clinical evidence or recorded history" in the record. See Miller v. West, 11 Vet. App. 345, 348 (1998). The Board thus finds that the evidence on the whole rebuts the presumption of soundness, and clearly and unmistakably establishes a pre- existing asthma condition. The remaining question for consideration is whether such disability was aggravated in service beyond normal progression of the disease process. 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). Considering the evidence of record in light of the above factual context and criteria, the Board finds that aggravation of the pre-existing asthma may not be conceded. The service medical records clearly show that the appellant did not experience any recurrence of asthma symptoms during either period of active duty. On the two of three occasions that he was seen for respiratory symptoms, they were not diagnosed as asthma, nor was any medication prescribed for this condition. The Board notes that pulmonary consultation in 1997 did indicate some slightly compromised lung function, but this was determined to not be statistically significant. Moreover, it is demonstrated that the diminished respiration was found on the appellant's enlistment examination for inactive duty and not during a period of active duty. The service medical records from the appellant's second period of service unambiguously show that he denied asthma symptoms and none were voiced or noted on medical board examination in 2001. The Board finds that there is no indication in the service medical records that there was reactivation or any increase in severity of the pre-existing asthma. Additionally, when the appellant underwent VA examination in November 2006, the examiner unequivocally stated that asthma was not caused, exacerbated or aggravated by military service, and that his current symptoms represented no more than a natural progression of the pre-existing disease process. Where there is a specific finding that the increase in disability is due to the natural progress of the disease, such worsening is not considered "aggravation" for VA compensation purposes. 38 U.S.C.A. § 1153 (West 2002 & Supp.2006); C.F.R. § 3.306(a) (2006). The evidence in its entirety thus supports a finding that the presumption of soundness at entrance is rebutted, that the veteran clearly and unmistakably had asthma prior to entering service and that asthma was clearly and unmistakably not aggravated by active duty service. The Board points out that while the veteran may well believe that there is a relationship between currently worsening respiratory impairment and active military service, the overwhelming medical evidence of record does not support this conclusion. As a layperson without the appropriate medical training and expertise, the appellant is not competent to offer probative evidence on a medical matter on the basis of his assertions alone. See Bostain v. West , 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). For all the foregoing reasons, the Board concludes that the claim of service connection for asthma must be denied. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable in this instance. See 38 U.S.C.A § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57. ORDER Service connection for bronchial asthma is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs