Citation Nr: 0723258 Decision Date: 07/27/07 Archive Date: 08/06/07 DOCKET NO. 04-10 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for reactive airway disease, to include asthma. 2. Entitlement to service connection for headaches, to include consideration as being secondary to reactive airway disease. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from February 1984 to July 1985. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions of July 2003 and later by the Department of Veterans Affairs (VA), Jackson, Mississippi, 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 beyond the natural progress of the disease during service. 3. Chronic headaches were not present until many years after service, and were not caused or aggravated by a service- connected disability. 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). 3. Headaches were not incurred in or aggravated by service, and were not proximately due to or the result of a service- connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matter: Duty to Notify and Assist 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 June 2003 and May 2005 provided the veteran with an explanation of the type of evidence necessary to substantiate his claims, 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. The veteran was also provided a letter in January 2007 which notified him regarding potential effective dates and ratings. In addition, the letters adequately 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 Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues 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 at the RO. 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. I. Entitlement To Service Connection For Reactive Airway Disease, To Include Asthma. The evidence which has been developed includes the veteran's service medical records. A pre-induction medical history dated in June 1983 reflects that the veteran denied a history of asthma. The report of a medical examination conducted at that time shows that clinical evaluation of the lungs was normal. The veteran entered active service on February 21, 1984. A service record dated March 12, 1984, reflects that he had complaints of a headache, sore throat and non-productive coughing. It was noted that he had a past history of pneumonia. The assessment was upper respiratory infection. In July 1984, the veteran was treated for possible sinusitis. A record dated in September 1984 shows treatment for a chest cold. Examination findings included wheezing and a non productive cough. A service medical record dated in February 1985 shows that the veteran came in for wheezing and difficulty breathing. He stated that he had a history of asthma. On examination, his throat was red and the lungs had wheezing in all lobes. The assessment was bronchospasms. He was placed on medications and restricted duty. Records dated in March 1985 shows treatment for resolving upper respiratory infection secondary to broncho spasms. A service medical record dated in June 1985 reflects that the veteran reported to sick call with a history of difficulty breathing during physical exertion. It was stated that he had been diagnosed as having asthma as a child. That morning, he had experienced wheezing with dyspnea. The assessment was possible asthma. Another service record, a radiology report, apparently incorrectly dated in June 1983, reflects that the veteran had a history of dyspnea for one day. A chest X-ray was normal. Another service medical record entry also dated in June 1985 noted that the veteran reported a history of childhood asthma requiring bronchaids. He denied hospitalization for the same. He stated that he had wheezing and chest tightness with activities. The assessment was historical childhood asthma, ? RAD. A service emergency room treatment record dated in June 1985 reflects that the veteran had a history of asthma since the age of four years requiring medications. The assessment was acute asthma of childhood onset. Another service medical record dated later in June 1985 notes that the veteran stated that he had been diagnosed with childhood asthma. His most recent attack had been Friday night, and since then he had nausea. The assessment was asthma? A service internal medicine consultation sheet dated in June 1985 notes that the veteran reported a childhood history of asthma. Episodes reportedly occurred with physical activity. A service medical board report which is dated June 25, 1985, reflects that the veteran had a long history of childhood asthma. These asthma attacks became infrequent after the age of 14, and he did not require further medical treatment. He performed satisfactorily during boot camp, but developed serious difficulty breathing approximately five months prior to the medical board evaluation. Physical examination during the attacks had shown wheezing in all lung fields, and prolonged expiration. The diagnosis was reactive airway disease (asthma). The medical board concluded that the veteran did not meet the minimum standards for enlistment or induction by reason of physical disability. It was further stated that the physical disability was neither incurred in nor aggravated by the period of active military service. The veteran's DD 214 indicates that the veteran was discharged as a result of physical disability existing prior to entry on active duty established by medical board, not entitled to severance pay. Private medical treatment records dated from 1997 reflects treatment for respiratory disorder including bronchitis, allergic rhinitis, and skull pain associated with sinusitis. The report of an asthma examination conducted by the VA in January 2007 shows that the examiner reviewed the claims file and noted that the veteran presented a history of bronchial asthma dating back to childhood. The veteran stated that as a child he experienced slight wheezing twice weekly with shortness of breath on exertion and a nonproductive cough. He reported that the episodes were brought on by exposure to freshly cut grass, changes in the temperature, and exercise. Between the ages of 14 and 20, he noticed less frequent difficulty, such as mild symptoms three times a month. At age 20 after entering the military, he noticed continuing difficulty with asthma, averaging one episode per week. He stated that field exercises often brought on the asthma, and on at least three episodes he was medevaced for treatment. He said that currently he experienced mild asthma approximately four times a month. He said that during wintertime, when he was less active, the episodes occurred approximately twice monthly. In between attacks he was relatively asymptomatic. On examination, the lungs were clear. Pulmonary function studies were normal, as was a chest x-ray. The diagnosis was bronchial asthma. The examiner also offered the following remarks: Basically, the patient suffers a lifelong history of bronchial asthma. The severity of the illness has fluctuated over the years and he experienced a worsening of his condition while in the military. This seemed to relate to exposure to freshly cut grass and also to exercise, as well as change in temperature. The increased frequency of his asthma during military service is felt related to exposure to the out of doors (grasses, temperature changes) and the increased physical exertion related to training exercises. Permanent sequelae related to such is unlikely, in that by definition, asthma is reversible obstructive airways disease. The increased frequency during active duty is considered to represent natural progress of the disorder. 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 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 an 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 service medical records reflect medical histories given by the veteran and 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. Finally, the Board notes that the veteran conceded in his history which he gave to the VA examiner that asthma existed prior to service. For these reasons, the Board finds that it has been established by clear and unmistakable evidence that the disorder existed prior to service. 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 and exposure to outside environments 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 board concluded that the disorder had not been aggravated. Similarly, the VA doctor who examined the veteran and reviewed the file concluded that the pre-existing asthma disorder had not been permanently worsened by his experiences in the military, and that any increase in the frequency of symptoms was simply due to the natural progress of the disorder. 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. This is competent evidence to support the Board's determination that the psychiatric disorder clearly and unmistakably was not aggravated during service. 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 had 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 reactive airways disease, to include asthma is denied, and there is no doubt to be resolved. II. Entitlement To Service Connection For Headaches, To Include Consideration As Being Secondary To Reactive Airway Disease. The Board initially notes that, in light of the foregoing denial of the claim for service connection for reactive airway disease/asthma, the claim for headaches as being secondary to such a respiratory disorder must fail. In this regard, the veteran is not currently service-connected for any disability, so there can be no basis for a claim for secondary service connection. In addition, the Board finds that service connection for headaches may not be granted on a direct basis. Although the service medical records show a couple of complaints of headaches, there was no diagnosis of a chronic disorder such as migraine headaches. The Board also notes that upon separation from service, the veteran gave a history in July 1985 in which he denied having frequent or severe headaches. The earliest post-service medical records pertaining to headaches are from many years after service. No medical opinion has been presented suggesting that the current headaches may be related to service. Accordingly, the Board concludes that headaches were not incurred in or aggravated by service. ORDER 1. Service connection for reactive airway disease, to include asthma, is denied. 2. Service connection for headaches is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs