Citation Nr: 1232497 Decision Date: 09/20/12 Archive Date: 10/01/12 DOCKET NO. 03-31 425 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for hay fever. 2. Entitlement to service connection for bronchial asthma. 3. Entitlement to an extension of temporary evaluation of 100 percent based on surgical or other treatment necessitating convalescence for the varicose veins of the bilateral lower extremities effective from April 25, 2006, to May 31, 2006. ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active military service from June 1982 to October 1982 and from April 1988 to April 1992. The Veteran resides in Germany. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision, issued in April 2003, a March 2004 rating decision, and a December 2006 rating decision by the Department of Veterans' Affairs (VA) Regional Offices (RO) in Huntington, West Virginia and Pittsburgh, Pennsylvania. In pertinent part of the March 2003 rating decision, issued in April 2003, the RO denied service connection for bronchial asthma. In the March 2004 rating decision the RO denied service connection for hay fever. The December 2006 rating decision granted the Veteran temporary total ratings based on convalescence for the service-connected varicose veins of the bilateral lower extremities. The Board notes that the Veteran resides in Germany and the RO in Pittsburgh, Pennsylvania has jurisdiction over the Veteran's claims file. In October 2006 and June 2010 the Board remanded the issues of entitlement to service connection for hay fever and bronchial asthma for further development. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issue of entitlement to an extension of temporary evaluation of 100 percent based on surgical or other treatment necessitating convalescence for the varicose veins of the bilateral lower extremities effective from April 25, 2006, to May 31, 2006, is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issues on appeal has been accomplished. 2. By clear and unmistakable evidence, the Veteran's hay fever did not preexist his first period of military service. 3. The Veteran's hay fever preexisted his second period of military service and was aggravated beyond a natural progression as a result of his military service. 4. By clear and unmistakable evidence, the Veteran's bronchial asthma did not preexist either his first or second period of military service. 5. Extending the benefit of the doubt to the Veteran, bronchial asthma is shown as likely as not to be due to his second period of military service. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for hay fever have been met. 38 U.S.C.A. § 1110, 1111, 1131, 5107, 7104 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2011). 2. The criteria for the establishment of service connection for bronchial asthma have been met. 38 U.S.C.A. § 1110, 1111, 1131, 5107, 7104 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Here, with regard to the issues herein decided, the decision below is granting in full the benefits sought. Accordingly, even assuming that an error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during a Veteran's active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). 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; 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by service, where there is an increase in disability during such war service, unless there is clear and unmistakable evidence that the increase in disability 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(b). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment will not be considered service connected unless the disease is otherwise aggravated by service. 38 C.F.R. § 3.306(b). 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 Veteran has two periods of active duty service; June 1982 to October 1982 and April 1988 to April 1992. Prior to the Veteran's first period of active duty service the Veteran was in the National Guard. On a May 5, 1981, National Guard Report of Medical History the Veteran checked "yes" to hay fever; nothing was noted on the Report of Medical Examination. The Board notes that are no entrance or separation examinations for the Veteran's first period of active duty service nor are there any service treatment records. For the Veteran's second period of military service, on his February 1988 Report of Medical History for Enlistment he checked "yes" to hay fever and "no" to sinusitis and in the physician's summary section it was noted that the Veteran was diagnosed with hay fever six years prior and that he took medication in the summer; there was no mention of hay fever on the February 1988 Report of Medical Examination for Enlistment. During the Veteran's second period of military his service treatment records document that he was seen for hay fever in May 1988, allergies in June 1988, "sinusitis?" in October 1989, sinus pressure with a diagnosis of viral syndrome in January 1990, congestion in March 1991, and asthma in February 1992. A February 1992 Report of Medical Examination for Expiration of Term of Service (ETS) had "abnormal" checked for lungs and chests with a notation of bronchial asthma. In April 1992 it was stated that no physical was required for separation. The Board notes that only a copy submitted by the Veteran of the February 1992 Report of Medical Examination for ETS is of record and not the original; it was noted in an April 2012 Memorandum of Unavailability that the original could not be obtained and that there were no outstanding records. The Board notes that the Veteran resides in Germany and all of his private treatment records, private opinions, and VA examinations have been translated from German to English. The Veteran's private physician stated in April 1996 that the Veteran was diagnosed with exogenous allergic bronchial asthma (wool) and long years of allergic rhino-conjunctivtis. It was noted that for some years the Veteran had eye and nose symptoms from March to June and that beginning in 1995 he had seasonal shortness of breath and a whistling breathing noise; this year it was worse. In November 2002 the Veteran's private physician stated that the Veteran has been under his medical outpatient care since 1998 and that he had chronic bronchial asthma with a known atopic disposition. Also in November 2002 another private physician stated that the Veteran has been irregularly seen there since April 1991. It was noted that in April 1995 the Veteran had bronchitis for approximately two weeks and in April 1996 he had an episode of severe spastic bronchitis that was treated with special inhalators that he still used from time to time. At a March 2003 VA contracted examination conducted in Germany it was noted that around 1990 the Veteran had allergies and up until 1995 there was a deterioration with participation of the respiratory passage. It was in 1996 when the Veteran went to a lung specialist and was diagnosed with allergic bronchial asthma with a clear bronchial obstruction that was reversible for the most part. A prick test showed a strong reaction to early and mid-spring flowering tree pollen and a hyposensitation was carried out for three years that brought some relief until the aliments became clearly worse after a year. On examination the Veteran was diagnosed with allergy induced bronchial asthma and exertion asthma; there were no signs of coronary pulmonary or chronic bronchitis. The Veteran was afforded another VA contracted examination in Germany in October 2008. It was also noted that since the end of the 1980's the Veteran had seasonal allergic rhinitis with involvement of the paranasal sinuses as well as allergic conjunctivitis with complaints in the months from February to June. Around 1995 the Veteran experienced an "allergic march" in the sense of a first onset of bronchial asthma, associated with stress apnea. It was noted that in the following years and even today there is a persistent, increasing development of stress asthma with an all year onset of shortness of breath under physical exertion. During the pollen season in addition to respiratory complaints there was also an occasional strong cough with usually light colored sputum outside of the pollen season during infection phases. It was noted that the Veteran's physical examination was largely normal, a lung function test yielded a finding of mild central and peripheral obstruction with partial reversibility after bronchospasmolysis. An allergy diagnostic confirmed the presence of polyvalent allergy with sensitization, a suspicion of early-medium blossoming pollen, and an allergy to household dust mites, grass and grain pollen, and animal hair. It was stated that the described respiratory complaints all appeared only after separation from the military and could be interpreted in the sense of a moderate largely controlled mixed-form of bronchial asthma (seasonal largely allergic, all year allergic dust mite, and stress induced allergy). The Veteran's private physician stated in November 2011 that the Veteran came into his office in May 2010 with complaints of shortness of breath secondary to contact with pollen and house dust mites, also on exertion and in stressful situations. He stated that according to the Veteran's history he had hay fever as early as 1981 and developed allergic asthma while serving in the military in Germany; he stated that the Veteran's reported history was proved by copies of his medical records. He opined that a possible service connection for the Veteran's allergic bronchial asthma may be present due to climatic conditions in Germany and an abundance of trees with allergic pollens (e.g. birch trees) in this country (Germany). The Veteran was afforded another VA contracted examination in Germany in December 2011 and he was diagnosed with moderate bronchial asthma, all year allergies, and mild restrictive lung disease. In February 2012 a VA examiner in the United States reviewed the Veteran's claims file and opined that it appeared that the Veteran had symptoms of allergic bronchial asthma prior to June 1982 as indicated by the (November 2011) physician's note that his symptoms began as early at 1981. She stated that it should be noted that allergic bronchial asthma is due to an allergy, which was indicated by the Veteran and hay fever with allergy to pollens and house dust mites would be typical of an allergic bronchial asthma and that it is due to hypersensitivity reaction in the systemic immune response. It was noted that the Veteran smoked and that the Veteran's pulmonary function improved only slightly after the bronchodilator most likely due to mild COPD from cigarette use. She opined that with the Veteran's history of hypersensitivity reactions to certain things it is the opinion of this examiner that bronchial asthma did exist prior to the Veteran's period of service from June 1982 to October 1982 and April 1988 to April 1992. She further stated that with the fact that asthma preexisted the period of service there does not appear to be an increase in disability during service but a continuation of the previous condition, which was an allergic bronchial asthma. The Veteran had intermittent symptoms which were aggravated by a reaction to pollens while stationed in Germany and this was most likely a natural progression of this disorder or natural reaction due to this disorder. She concluded that given the information it is less likely that the condition was worsened permanently resulting in a current disability due to service exposure to allergic pollens. Hay Fever As noted above, 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; 38 C.F.R. § 3.304(b). Since there are no service treatment records, including Report of Medical Examination for Enlistment or Report of Medical History for Enlistment, for the Veteran's first period of military service (June 1982 to October 1982) the Veteran is presumed to be sound at the time of examination, acceptance, and enrollment. The presumption of soundness would be rebutted for the Veteran's first period of military service if clear and unmistakable evidence demonstrates that the Veteran's hay fever asthma existed before acceptance and enrollment and was not aggravated by such service. However, the Board finds that the only evidence that the Veteran's hay fever preexisted his first period of military service was a notation of the National Guard examination and the February 2012 VA medical opinion. By "clear and unmistakable evidence" is meant that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). In this case the Board finds that the evidence of record is not clear and unmistakable that the Veteran's hay fever preexisted his first period of military service since there are no service treatment records from his first period of military service and in October 2009 it was noted that the Veteran's seasonal allergic rhinitis began at the end of the 1980's and that all his respiratory complaints appeared after his military discharge. Thus, the Board finds that there is no clear and unmistakable evidence that the Veteran's hay fever began prior to his first period of military service and thus, he is presumed sound at the time of entry for his first period of military service. For the Veteran's second period of military service, it was noted on his February 1988 Report of Medical History for Enlistment that he had a diagnosis of hay fever for the past six years. The Board notes that this would bring a diagnosis of hay fever either during the Veteran's first period of military service or right after his discharge from his first period of military service. Since hay fever was noted at the time of his examination, acceptance and enrollment for his second period of military service the issue before the Board is whether the Veteran's preexisting condition of hay fever was aggravated beyond a natural progression by his second period of military service. A preexisting injury or disease will be considered to have been aggravated by service, where there is an increase in disability during such war service, unless there is clear and unmistakable evidence that the increase in disability is due to the natural progress of the condition. During the Veteran's second period of military service his service treatment records document that he was seen twice prior to his deployment to Germany in August 1988 for hay fever and allergies; once the Veteran was stationed in Germany the Veteran's service treatment records indicated that he was seen five times. This is also supported by the November 2011 notation by the Veteran's private physician that the Veteran developed allergies while stationed in Germany. While the February 2012 VA examiner stated that the Veteran's reaction to pollen while stationed in Germany was not a natural progression of his preexisting condition the Board finds that this is not clear and unmistakable evidence since the Veteran's service treatment records show an increase in symptomatolgy and that the November 2011 opinion related it to the climate in Germany. Thus, the Board finds that there is no clear and unmistakable evidence that the Veteran's preexisting hay fever was not aggravated by service and service connection must be granted. Moreover, the Board finds that service connection can also be granted on the grounds of being directly related to the Veteran's first period of military service since the February 1988 Report of Medical History for Enlistment notation by the medical professional puts the diagnosis six years prior which is either during the Veteran's first period of military service or within a year from discharge. In addition, the February 1996 private treatment note stated that the Veteran had hay fever for the last several years, which puts the onset close to his discharge from his second period of military service. Moreover, in October 2008 it was noted that since the end of the 1980's he had seasonal allergic rhinitis. In sum, the Board finds that service connection for hay fever is warranted. There is no clear and unmistakable evidence that the Veteran's hay fever preexisted his first period of military service or that his preexisting hay fever for his second period of military service was not aggravated beyond a natural progression by his second period of military service. Thus, service connection for hay fever is warranted. Bronchial Asthma Since there are no service treatment records, including Report of Medical Examination for Enlistment or Report of Medical History for Enlistment, for the Veteran's first period of military service (June 1982 to October 1982) the Veteran is presumed to be sound for his first period of military service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The Board also finds that the Veteran is presumed to be sound for his second period of military service since bronchial asthma was not noted at examination, acceptance and enrollment. The presumption of soundness would be rebutted for either of the Veteran's periods of military service if clear and unmistakable evidence demonstrates that the Veteran's bronchial asthma existed before acceptance and enrollment and was not aggravated by such service. However, the Board finds that the only evidence that the Veteran's bronchial asthma preexisted either his first or second period of military service was the February 2012 VA medical opinion. While other evidence of record establishes that the Veteran's first diagnosis of bronchial asthma is during the Veteran's military service. In this case the Board finds that the evidence of record is not undebatable that his bronchial asthma preexisted either period of his military service and therefore, there is no clear and unmistakable evidence to rebut the presumption of soundness. Vanerson v. West, 12 Vet. App. 254 (1999). The first notation of bronchial asthma is in the Veteran's service treatment records with a February 1992 diagnosis and then a diagnosis of bronchial asthma noted on the Veteran's February 1992 Report of Medical Examination for ETS; this is corroborated by the November 2011 private opinion that states that the Veteran's bronchial asthma began while stationed in Germany. The Board notes that the actual date of diagnosis differs with the March 2003 VA examination noting that the Veteran was diagnosed with allergic bronchial asthma in 1996 and in October 2009 it was noted that the Veteran's seasonal allergic rhinitis began at the end of the 1980's and that all his respiratory complaints appeared after his military discharge. Moreover, it is only the February 2012 VA medical opinion that states that the Veteran's diagnosis of bronchial asthma preexisted either period of his military service. Thus, the Board finds that this is not clear and unmistakable evidence that the Veteran's bronchial asthma preexisted his military service. Thus, the Veteran is found to be presumed sound at the time of his entry for both of his periods of military service. Since the Board has now found the Veteran to be presumed to be sound at the of his examination, acceptance and enrollment into the military service for either period of service, the Board finds that after a careful review of the Veteran's claims file that by granting the Veteran the benefit of the doubt service connection for bronchial asthma is warranted. The first diagnosis of bronchial asthma was actually during the Veteran's military service in February 1992 and it was also documented on his February 1992 Report of Medical Examination for ETS. The Board notes that there is contradictory post-service medical evidence to the exact date of diagnosis of bronchial asthma. In April 1996 it was stated that his allergies were for the last several years and that his shortness of breath and whistling breathing sounds were new since 1995, in November 2002 it was noted that bronchitis began in 1995. At the March 2003 VA contracted examination it was noted that the Veteran's respiratory passages deteriorated up until 1995 when he was diagnosed with bronchial asthma in 1996. However, in November 2011 it was noted that the Veteran was diagnosed with bronchial asthma while stationed in Germany; the Board finds that this opinion as to the date of diagnosis is probative because not only is it supported by the Veteran's service treatment records but the other notations of date of onset do not discuss the diagnoses established in the Veteran's service treatment records. While the Board has found the February 2012 VA examination not probative by clear and unmistakable standards by finding that the Veteran's bronchial asthma did not preexist his military service, the Board finds that it is still probative since the Board herein above granted service connection for hay fever and the February 2012 VA examiner stated that the Veteran's bronchial asthma is due to an allergy. Thus, the Board finds that bronchial asthma is due to the Veteran's military service. In sum, the Board finds that there is no clear and unmistakable evidence that the Veteran's bronchial asthma preexisted either period of military service. Instead, the Board finds that the Veteran's bronchial asthma was first diagnosed in service and the opinions of record either relate the Veteran's bronchial asthma directly to his service in Germany or to his now service-connected hay fever. Thus, service connection for bronchial asthma is warranted. ORDER Service connection for hay fever is granted. Service connection for bronchial asthma is granted. REMAND After a careful review of the Veteran's claims file the Board finds that further development is warranted. A December 2006 rating decision granted the Veteran a temporary evaluation of 100 percent based on surgical or other treatment necessitating convalescence for the varicose veins of the bilateral lower extremities effective from April 25, 2006, to May 31, 2006, and then assigned 20 percent disability ratings for the bilateral lower extremities effective June 1, 2006. In a July 2007 statement the Veteran filed a Notice of Disagreement (NOD) on the effective date ending his temporary 100 percent rating asserting that his convalescence went past May 31, 2006. However, the Veteran has not been furnished a Statement of the Case (SOC) that addresses the issue of entitlement to an extension for the grant of a temporary evaluation of 100 percent based on surgical or other treatment necessitating convalescence for the varicose veins of the bilateral lower extremities. Consequently, the Board must remand to the RO to furnish an SOC and to give the Veteran an opportunity to perfect an appeal of such issue by submitting a timely substantive appeal. See Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: The RO shall furnish the Veteran a Statement of the Case that addresses the issue of entitlement to an extension for the grant of a temporary evaluation of 100 percent based on surgical or other treatment necessitating convalescence for the varicose veins of the bilateral lower extremities. The RO shall return this issue to the Board only if the Veteran files a timely substantive appeal. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs