Citation Nr: 0737022 Decision Date: 11/26/07 Archive Date: 12/06/07 DOCKET NO. 06-25 633 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to service connection for asthma. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The veteran served on active duty from May 27 to July 3, 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2005 decision by the RO. FINDINGS OF FACT 1. The veteran's asthma was not noted at the time of his examination, acceptance, and enrollment into service. 2. The veteran nevertheless clearly had asthma prior to service. 3. The veteran's preexisting asthma clearly did not increase in severity during service beyond the natural progress of the condition. CONCLUSION OF LAW Asthma was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1111, 1137, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran seeks to establish service connection for asthma. He maintains that the condition was aggravated by service. I. Preliminary Considerations On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007)). The VCAA imposes obligations on VA in terms of its duty to notify and assist claimants. A. The Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). The United States Court of Appeals for Veterans Claims has held that the VCAA notice requirements apply generally to all five elements of a service connection claim; namely, (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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Ordinarily, notice with respect to each of these elements must be provided to the claimant prior to the initial unfavorable decision by the agency of original jurisdiction. Id. In the present case, the Board finds that VA has satisfied its duty to notify. By way of a VCAA notice letter sent to the veteran in April 2005 and an attachment to a subsequent letter mailed in April 2006, the RO informed the veteran of the information and evidence required to substantiate his claim. He was notified of his and VA's respective duties for obtaining the information and evidence, and he was asked to send any pertinent evidence in his possession. He was also informed of the manner in which disability ratings and effective dates are assigned for awards of disability benefits. Although the totality of the required notice was not provided until after the veteran's claim was initially adjudicated, the claim was subsequently re-adjudicated in a June 2006 statement of the case, thereby correcting any defect in the timing of the notice. See, e.g., Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). No further corrective action is necessary. B. The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2007). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007). In the present case, the Board finds that the duty to assist has been fulfilled. The veteran's service medical records have been obtained, as have records of post-service VA and private medical treatment, and he has been examined for purposes of obtaining an opinion as to the likely etiology of his asthma. The Board acknowledges that the record contains references to some evidence that has not been procured. The claims file does not contain, for example, complete records from Drs. Manos, Pittman, Mahow, McCarroll, Holiday, or Barnett, or from Greenville Memorial Hospital. (The veteran identified each of these as sources of additional evidence in releases dated in March and April 2005.) Nor does the claims file contain copies of all the evidence underlying the veteran's reported 1993 award of disability benefits from the Social Security Administration (SSA). With respect to Drs. Pittman, McCarroll, Holiday, and Barnett, and Greenville Memorial Hospital, however, the Board notes that each of those sources has variously indicated that the records identified by the veteran are not available. In addition, with respect to Drs. Manos and Mahow, the record shows that the RO made two attempts to obtain the identified evidence from those physicians. Those efforts failed, and the RO notified the veteran in June 2005 that it was his responsibility to see that VA received the records. See 38 C.F.R. § 3.159(e) (2007). Further, with regard to the veteran's reported SSA disability award, the veteran indicated in a June 2006 letter to his congressman that that award was based on disability arising from a heart attack, rather than asthma. Consequently, it appears that there is no reasonable possibility that obtaining the records from SSA would aid in substantiating the veteran's claim. 38 C.F.R. § 3.159(d) (2007). No further development action is required. II. The Merits of the Veteran's Appeal Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007). Generally, in order to prove service connection, there must be (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, or link, between the current disability and the in-service disease or injury. See, e.g., Pond v. West, 12 Vet. App. 341, 346 (1999). Every veteran who served in the active military, naval, or air service after December 31, 1946 is 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, 1137 (West 2002). Only those conditions recorded in examination reports can be considered as "noted," 38 C.F.R. § 3.304(b) (2007), and a history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions. Id. § 3.304(b)(1). To rebut the presumption of sound condition for conditions not noted at entrance into service, 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. VAOPGCPREC 3-03 (July 16, 2003), 70 Fed. Reg. 23027 (May 4, 2005). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service-the second step necessary to rebut the presumption of soundness-a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153 (West 2002). If the presumption of sound condition is rebutted, "then the veteran is not entitled to service- connected benefits." Wagner, 370 F.3d at 1096. In the present case, the Board finds, as an initial matter, that the condition here at issue was not noted at the time of the veteran's examination, acceptance, and enrollment into service. As outlined above, applicable law contemplates that something more than a pre-service history be recorded in a report of an induction or enlistment examination in order for a condition to be deemed "noted," as that term is used in 38 U.S.C.A. § 1111. Here, although the record shows that the veteran reported a history of childhood asthma when he was examined for induction in March 1969, the report of that examination shows that his chest and lungs were found to be normal and that he had had no recurrence of the childhood asthma. This history of asthma was "NCD" (not considered disqualifying). Because the veteran's asthma was not "noted" at the time of his examination, acceptance, and enrollment into service, he is entitled to the presumption of soundness. With respect to whether the presumption of soundness has been rebutted, the Board finds, first, that there is clear and unmistakable evidence that the veteran had asthma prior to service. The veteran has offered sworn testimony to that effect. Indeed, he has testified that prior to his induction into the Army, he was "turned down" for enlistment in two other branches of service due, at least in part, to asthma. He reported a history of childhood asthma when he was examined for induction in March 1969, and again when he was evaluated in June 1969. Later in June 1969, a three-member service department Medical Board unanimously concluded, after examining the facts of the case, that the veteran's asthma existed prior to service. Similarly, in May 2006, a VA physician examined the veteran, reviewed the expanded record, and concluded that the veteran's asthma "clearly predated military service." None of the evidence suggests otherwise. It is the Board's conclusion, therefore, that asthma was clearly and unmistakably present prior to service. The Board also finds that there is clear and unmistakable evidence that asthma did not increase in severity during service beyond the natural progress of the condition. The veteran's service lasted only 1 month and 7 days. Although it appears that he did exhibit increased symptoms of asthma during that time, as compared to findings made at induction (in June 1969, he was found to exhibit mildly prolonged harsh expiratory breath sounds and high-pitched expiratory wheezes), the competent evidence of record demonstrates that the underlying condition did not undergo a chronic or permanent worsening during service. Specifically, the record shows that the three-member Medical Board specifically and unanimously concluded, after examining the facts of the case-including that he had had no acute attacks of asthma during service-that the veteran's asthma had not been aggravated by his period of active duty. See, e.g., Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991) (temporary or intermittent in-service flare-ups of a pre-service condition are not sufficient to be establish an increase in severity unless the underlying condition, as contrasted with symptoms, has worsened). More recently received evidence does nothing to detract from the Medical Board's conclusion. Indeed, it further supports it. Although the veteran feels that his asthma underwent a chronic or permanent worsening during service (see October 2007 Hearing Transcript, p. 9), the record shows that in September 1979 he reported to his private physician, Dr. C. Allen Bruce, that although he had had problems with asthma as a child, he had "had none in 12 years." He had some difficulties with asthma in March 1981, as noted in later records from Dr. Bruce, but his asthma was described as "mild" and "stable" on subsequent visits in April and August 1981, after administration of treatment. Thereafter, in September 1987, the veteran again denied a significant history of post-service asthma when he was seen by a Dr. Wesley Lawton. Later, in May 2006, a VA physician opined, after examining the veteran and reviewing the claims file, that it was unlikely that the veteran's asthma had been aggravated by service. The examiner noted, in part, that there was "no evidence of anything out of the ordinary occurring in military service as far as the veteran's asthma was concerned." The competent and probative post-service evidence, taken together with the evidence obtained during service, provides no support for the conclusion that the veteran's asthma increased in severity during service beyond the natural progress of the condition. Indeed, it appears rather obvious from the evidence that it did not. The presumption of soundness is therefore rebutted, and the claim for service connection is denied. See Wagner, supra. ORDER The appeal is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs