Citation Nr: 1045790	
Decision Date: 12/07/10    Archive Date: 12/14/10

DOCKET NO.  10-18 528	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Whether vacatur of the decision of the Board of Veterans' 
Appeals (Board) issued on January 15, 2009, is warranted.

2.  Whether severance of the award of service connection for 
bronchial asthma constituted clear and unmistakable error (CUE).

3.  Whether new and material evidence has been received to reopen 
a claim of entitlement to reinstatement of service connection for 
asthma, and if so, whether the reopened claim should be granted.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the 
United States



ATTORNEY FOR THE BOARD

T. L. Anderson, Associate Counsel


INTRODUCTION

The Veteran had active service from January 1942 to October 1945.  

This matter previously came before the Board of Veterans' Appeals 
(Board) from November 2005 and March 2009 rating decisions by the 
above Department of Veterans Affairs (VA) Regional Office (RO).   


FINDINGS OF FACT

1.  On January 15, 2009, the Board issued a decision denying 
reinstatement of service connection for asthma, and referred to 
the RO a claim of CUE in an October 1960 rating decision which 
had severed service connection for asthma.

2.  The issues of reinstatement of service connection for asthma 
and whether there was CUE in the October 1960 rating decision are 
sufficiently related such that adjudication of the two issues 
together would ensure due process.

3.  In an October 1960 rating decision, the RO severed service 
connection for asthma.  The Veteran did not appeal that decision, 
and it became final.

4.  The October 1960 rating decision, which severed service 
connection for asthma, was reasonably supported by the evidence 
then of record; it is not shown that the applicable statutory or 
regulatory provisions existing at that time were ignored or 
incorrectly applied; and the appellant has failed to allege any 
kind of error of fact or law in that decision which, when called 
to the attention of later reviewers, compels the conclusion, as 
to which reasonable minds could not differ, that the result would 
have been manifestly different but for the error.

5.  An August 2005 rating decision denied reinstatement of 
service connection for asthma, and the Veteran did not appeal 
that decision.

6.  The evidence associated with the claims file subsequent to 
the August 2005 decision was not previously submitted for 
consideration, relates to an unestablished fact necessary to 
establish the claim, and raises a reasonable possibility of 
substantiating the claim, so as to warrant reopening the claim.  

7.  The competent and probative evidence preponderates against a 
finding that the Veteran's has a current diagnosis of asthma, or 
that asthma is due to any incident or event in military service.


CONCLUSIONS OF LAW

1. The criteria for vacating the Board decision issued on January 
15, 2009, have been met.  38 U.S.C.A. § 7104(a) (West 2002 & 
Supp. 2010); 38 C.F.R. § 20.904 (2010).

2.  The October 1960 rating decision severing service connection 
for asthma is final.  38 U.S.C.A. § 7105(c) (West 2002 & Supp. 
2010); 38 C.F.R. §§ 3.104, 3.160(d), 20.302, 20.1103 (2010).

3.  The October 1960 rating decision which severed service 
connection for asthma was not clearly and unmistakably erroneous.  
38 U.S.C.A. §§ 5109A, 7105 (West 2002 & Supp. 2010); 38 C.F.R. § 
3.105(a) (2010).

4.  The August 2005 rating decision, which denied reinstatement 
of service connection for asthma, is final.  38 U.S.C.A. § 7105 
(West 2002 & Supp. 2010); 38 C.F.R. § 20.302 (2010).  

5.  The evidence received subsequent to the August 2005 rating 
decision is new and material, and the claim for service 
connection for asthma is reopened.  38 U.S.C.A. § 5108 (West 2002 
& Supp. 2010); 38 C.F.R. § 3.156 (2010).

6.  Asthma was not incurred in or aggravated by service.  38 
U.S.C.A. § 1101, 1110, 1154, 5103(a), 5103A, 5107 (West 2002 & 
Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's 
duty to notify and assist claimants in substantiating their 
claims for VA benefits, as codified in pertinent part at 38 
U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 
C.F.R. §§ 3.102, 3.159, 3.326(a) (2010).

Upon receipt of a complete or substantially complete application 
for benefits, VA is required to notify the claimant and his 
representative of any information, and any medical or lay 
evidence, that is necessary to substantiate the claim.  38 
U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 
16 Vet. App. 183 (2002).  Proper notice from VA 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.  38 
C.F.R. § 3.159(b)(1) (2010).  This notice must be provided prior 
to an initial unfavorable decision on a claim by the RO.  
Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini 
v. Principi, 18 Vet. App. 112 (2004).  In addition, the decision 
of the U.S. Court of Appeals for Veterans Claims (Court) in 
Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more 
extensive notice in claims for compensation, e.g., as to 
potential downstream issues such as disability rating and 
effective date.  


In claims to reopen, VA must both notify a claimant of the 
evidence and information that is necessary to reopen the claim 
and notify the claimant of the evidence and information that is 
necessary to establish entitlement to the underlying claim for 
the benefit that is being sought.  Kent v. Nicholson, 20 Vet. 
App. 1 (2006).  To satisfy this requirement, the Secretary is 
required to look at the bases for the denial in the prior 
decision and to provide the claimant with a notice letter that 
describes what evidence would be necessary to substantiate those 
elements required to establish service connection that were found 
insufficient in the previous denial.  

If complete notice is not provided until after the initial 
adjudication, such a timing error can be cured by subsequent 
legally adequate VCAA notice, followed by readjudication of the 
claim, as in a Statement of the Case (SOC) or Supplemental SOC 
(SSOC).  Moreover, where there is an uncured timing defect in the 
notice, subsequent action by the RO which provides the claimant a 
meaningful opportunity to participate in the processing of the 
claim can prevent any such defect from being prejudicial.  
Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); 
Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has held that an error in VCAA notice 
should not be presumed prejudicial, and that the burden of 
showing harmful error rests with the party raising the issue, to 
be determined on a case-by-case basis.  Shinseki v. Sanders, 129 
S. Ct. 1696 (2009).  In this case, the appellant has not 
demonstrated any prejudicial or harmful error in VCAA notice, 
and, as discussed herein, the Board has identified none.

The U.S. Court of Appeals for Veterans Claims has held that the 
statutory and regulatory provisions pertaining to VA's duty to 
notify and to assist under the VCAA do not apply to allegations 
of clear and unmistakable error in prior RO or Board decisions, 
because a CUE motion is not a claim or an appeal, but is a 
collateral attack upon a previous final decision.  Livesay v. 
Principi, 15 Vet. App. 165, 178 (2001) (en banc); Simmons v. 
Principi, 17 Vet.App. 104, 109 (2003).


With regard to the service connection claim, VA sent the Veteran 
a letter in October 2005 informing him of the types of evidence 
needed to substantiate his claim and its duty to assist him in 
substantiating his claim under the VCAA.  The letter included 
attachments which informed him that VA would assist him in 
obtaining evidence necessary to support his claim, such as 
medical records, employment records, or records from other 
Federal agencies.  He was advised that it is his responsibility 
to provide or identify, and furnish authorization where necessary 
for the RO to obtain, any supportive evidence pertinent to his 
claim.  See 38 C.F.R. § 3.159(b)(1).  Although no longer 
required, the appellant was also asked to submit evidence and/or 
information in his possession to the RO.  The Board also notes 
that a June 2005 letter sent in response to a previous claim for 
service connection for asthma explained the bases for the 
severance of service connection for asthma and what type of 
evidence would be considered new and material.  Finally, the 
April 2006 SSOC included a section which describes how VA 
determines disability ratings and effective dates.

The Board acknowledges that the content of the October 2005 
letter did not fully comply with the requirements of 38 U.S.C.A. 
§ 5103(a) and 38 C.F.R. § 3.159(b), as later amended, regarding 
VA's duty to notify and assist.  However, the Board finds that 
any error in notice is non-prejudicial.  Although the Veteran did 
not receive Dingess notice until after initial adjudication of 
the claim (as the initial rating decision occurred prior the 
Court's ruling in Dingess), it is clear that he was provided with 
the opportunity to participate in the processing of his claim, so 
as to render any defect in notice non-prejudicial.  For example, 
the November 2005 rating decision, January 2006 SOC, and April 
and October 2006 SSOCs explained the basis for the RO's action, 
and the SOC and SSOCs provided him with additional 60-day periods 
to submit more evidence.  In addition, the Veteran has 
demonstrated through his correspondence and submission of 
additional evidence that he was aware of the type of evidence 
required to substantiate his claim.  Moreover, the benefit being 
sought is not being granted in this case, so the Board will not 
reach the issue of disability rating or effective date discussed 
by the Court in Dingess.


It appears that all obtainable evidence identified by the Veteran 
relative to his claim has been obtained and associated with the 
claims file, and that neither he nor his representative has 
identified any other pertinent evidence, not already of record, 
which would need to be obtained for a fair disposition of this 
appeal.  

It is the Board's conclusion that the Veteran has been provided 
with every opportunity to submit evidence and argument in support 
of his claim, and to respond to VA notices.  Additionally, the 
Veteran has demonstrated knowledge of, and has acted upon, the 
information and evidence necessary to substantiate the pending 
claim.  See, e.g., Dalton v. Nicholson, 21 Vet. App. 23, 30 
(2007) (Court was convinced that the appellant and representative 
had demonstrated actual knowledge of the information and evidence 
necessary to establish the claim).  Moreover, the Veteran has not 
identified any evidence which he would have submitted if Dingess 
notice had been provided earlier.

With regard to VA's duty to assist, VA obtained the Veteran's 
service treatment records (STRs) and was afforded a VA 
examination in July 2006.  The Veteran also submitted private 
treatment records.  

Accordingly, we find that VA has satisfied its duty to assist the 
Veteran in apprising him as to the evidence needed, and in 
obtaining evidence pertinent to his claim under the VCAA.  
Therefore no useful purpose would be served in remanding this 
matter for yet more development.  Such a remand would result in 
unnecessarily imposing additional burdens on VA, with no 
additional benefits flowing to the Veteran.  The Court of Appeals 
for Veteran Claims has held that such remands are to be avoided.  
See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. 
Brown, 6 Vet. App. 426, 430 (1994).

II.  Vacatur

On January 15, 2009, the Board issued a decision that reopened 
and denied the Veteran's claim of entitlement to reinstatement of 
service connection for asthma.  In the Introduction to that 
decision, the Board also noted that the Veteran's representative 
had raised a contention, in his December 2008 Informal Hearing 
Presentation (IHP), that the October 1960 rating decision which 
had severed service connection for asthma was a product of clear 
and unmistakable.  Since the RO had not adjudicated the CUE 
issue, the issue of whether the 1960 rating decision had 
constituted CUE was referred by the Board to the RO.  

Subsequently, the RO issued a rating decision in March 2009 in 
which it found that the October 1960 rating decision was not 
clearly and unmistakably erroneous.  The Veteran perfected his 
appeal as to that issue, and it is now before the Board.  

In October 2010, the Veteran's representative submitted a request 
that the Board's January 2009 decision be vacated, and that the 
issues of whether the October 1960 rating decision constituted 
CUE and whether new and material evidence had been received to 
reopen a claim of entitlement to reinstatement of service 
connection for asthma be considered together.  In this motion, 
the Veteran's representative argued that the two issues are 
inextricably intertwined, citing to Smith v. Gober, 236 F.3d 
1370, 1373 (Fed. Cir. 2001) (noting that where the facts 
underlying separate claims are "intimately connected," the 
interests of judicial economy and avoidance of piecemeal 
litigation require that the claims be adjudicated together) and 
Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more 
issues are inextricably intertwined if the resolution of one 
could have significant impact on the other).  

An appellate decision may be vacated by the Board at any time 
upon the request of the appellant or his representative, or on 
the Board's own motion, when there has been a denial of due 
process.  38 C.F.R. 20.904 (2010).  In deference to the 
representative's thoroughly articulated argument , and in order 
to assure a full measure of due process to the Veteran's claim 
and appeal, the Board has decided to vacate our January 15, 2009, 
decision and address the issues of CUE and reinstatement of 
service connection together.

Under 38 U.S.C.A. § 7252, only a decision of the Board of 
Veterans' Appeals is appealable to the United States Court of 
Appeals for Veterans Claims (Court).  This vacatur is in the 
nature of a preliminary order and does not constitute a decision 
of the Board on the merits of the appeal.  38 C.F.R. § 20.1100(b) 
(2010).  The merits of the issue set forth above are considered 
de novo in the decision below.


III.  Whether Severance of Service Connection Constituted CUE

A.  Applicable Law

Pursuant to 38 C.F.R. § 3.104(a), "[a] decision of [an RO] shall 
be final and binding on all field offices of [VA] as to 
conclusions based on the evidence on file at the time VA issues 
written notification in accordance with 38 U.S.C. § 5104."  38 
C.F.R. § 3.104(a).  Such a final decision may be subject to 
revision, however, in the presence of clear and unmistakable 
error, as described in 38 C.F.R. § 3.105.  Thus, a prior final RO 
decision will be accepted as correct unless CUE can be shown.  38 
C.F.R. § 3.105(a).

Clear and unmistakable (CUE) is defined as "a very specific and 
rare kind of 'error.'  It is the kind of error, of fact or of 
law, that when called to the attention of later reviewers compels 
the conclusion, to which reasonable minds could not differ, that 
the result would have been manifestly different but for the 
error."  Fugo v. Brown, 6 Vet. App. 40, 43 (1993) (emphasis in 
original).

The Court has propounded a three-pronged test to determine 
whether CUE was present in a prior determination: (1) either the 
correct facts, as they were known at the time, were not before 
the adjudicator (i.e., more than simple disagreement as to how 
the facts were weighed or evaluated) or the statutory or 
regulatory provisions extant at the time were incorrectly 
applied; (2) the error must be undebatable and of the sort which, 
had it not been made, would have manifestly changed the outcome 
at the time it was made; and (3) a determination that there was 
CUE must be based on the record and law that existed at the time 
of the prior adjudication in question.  Russell v. Principi, 3 
Vet. App. 310, 313-14 (1992).

If a claimant-appellant wishes to reasonably raise CUE, there 
must be some degree of specificity as to what the alleged error 
is and, unless it is the kind of error which, if true, would be 
CUE on its face, persuasive reasons must be given as to why the 
result would have been manifestly different but for the alleged 
error.  It must be remembered that there is a presumption of 
validity to otherwise final decisions, and that where such 
decisions are collaterally attacked, and a CUE claim is 
undoubtedly a collateral attack, the presumption is even 
stronger.  Id.; see also Grover v. West, 12 Vet. App. 109, 111-
112 (1999); Daniels v. Gober, 10 Vet. App. 474, 478 (1997); 
Caffrey v. Brown, 6 Vet. App. 377, 383-384 (1994); Damrel v. 
Brown, 6 Vet. App. 242, 245 (1994).

Generally, CUE exists when either the correct facts, as they were 
known at the time, were not before the decision maker(s), or the 
statutory and regulatory provisions extant at the time were 
incorrectly applied.  See 38 C.F.R. § 20.1403(a); Sorakubo v. 
Principi, 16 Vet. App. 120 (2002).  A simple disagreement with 
how the RO evaluated the facts is not sufficient to raise a valid 
claim of CUE.  Luallen v. Brown, 8 Vet. App. 92, 95 (1995).  In 
addition, the mere misinterpretation of facts does not constitute 
CUE.  See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991).  
Moreover, the Court has held that a failure to fulfill the duty 
to assist does not constitute CUE.  See Crippen v. Brown, 9 Vet. 
App. 412, 424 (1996); Caffrey v. Brown, supra.

B.  Facts and Analysis

The Veteran first filed a claim of entitlement to service 
connection for asthma in December 1945.  He was subsequently 
afforded a VA examination in May 1946 at which the VA examiner 
assessed asthma by history only, with attacks occurring every 
three months on average.  Consequently, the RO granted service 
connection for bronchial asthma in a May 1948 rating decision.  

In a December 1959 proposed rating decision, the RO advised the 
Veteran of its intention to sever service connection for that 
disability.  In the October 1960 rating decision now on appeal, 
the RO determined that the grant of service connection for asthma 
had been clearly and unmistakably erroneous, and effectuated the 
proposed severance.  The RO found that bronchial had asthma pre-
existed the Veteran's service in the Army and there was no 
evidence showing that the condition was permanently aggravated 
during service.  The Veteran did not file a timely appeal of the 
severance.  Consequently, the October 1960 rating decision became 
final.  See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302.  The Veteran 
now alleges that the October 1960 rating decision contained CUE.  

For the reasons discussed below, the Board finds that the October 
1960 rating decision severing service connection for asthma was 
not clearly and unmistakably erroneous.  

First, the correct facts, as they were known at the time, were 
available to the RO.  The RO had in its possession the Veteran's 
STRs and the reports of several VA examinations, and cited to 
that medical evidence in detail in its December 1959 proposed 
rating decision.  There is no contention by the Veteran that the 
RO did not have access to any pertinent evidence.  Rather, the 
Veteran's representative essentially contended in the December 
2008 IHP that the RO did not place enough weight on the entrance 
examination which was negative for asthma, and that the Veteran's 
statements regarding his pre-service bout of asthma in November 
1941 did not constitute clear and unmistakable evidence to rebut 
the presumption of soundness on entry into service.  In its 1960 
rating decision, the RO determined that the Veteran's statements 
to the effect that he had received treatment for and was 
diagnosed with asthma in November 1941, prior to entering active 
service, constituted clear and unmistakable evidence that the 
condition existed prior to service, despite the negative entrance 
examination report.  The RO specifically cited to the negative 
entrance examination in its 1959 proposed rating decision.  It 
appears the RO evaluated and weighed the evidence and ultimately 
determined that the Veteran's statements were the most probative 
evidence of record as to when his asthma began.  As noted above, 
a disagreement with how the RO evaluated the facts is inadequate 
to support a claim of CUE.  Luallen, 8 Vet. App. at 95 (1995); 
see also 38 C.F.R. § 20.1403(d)(3).  

Further, there is no indication that the regulatory provisions 
existing at the time of the rating decision were misapplied.  The 
Veteran's representative argues that, conceding that asthma did 
pre-exist active service, the RO did not consider whether it was 
aggravated by service, nor did the RO identify the nature of the 
error in the original 1948 grant of service connection in its 
October 1960 rating decision.  However, the Board notes that the 
RO described the basis for its finding that the grant of service 
connection in 1948 was clear and unmistakable error in the 
December 1959 proposed severance rating decision.  Moreover, it 
is clear from the July 1960 letter to the Veteran, wherein he was 
informed of the proposed severance, that the RO had considered 
aggravation.  Specifically, the letter stated that there was no 
evidence showing that the Veteran's asthma was permanently 
aggravated during service, and cited to the post-service VA 
examination findings in support of that conclusion.  

Therefore, because the October 1960 rating decision was supported 
by the evidence of record as analyzed under the law in effect at 
the time, that rating decision, which severed service connection 
for asthma, was within the bounds of sound judgmental discretion.  
Under those circumstances, the Board finds that the October 1960 
rating decision was not a product of CUE. 

IV.  New and Material Evidence to Reopen the Claim
 
As discussed above, service connection was originally granted for 
asthma, with an effective date of October 24, 1945, in a May 1948 
rating decision.  However, in July 1960, VA sent the Veteran 
notice of a proposal to sever service connection for asthma, and 
service connection was ultimately severed in the October 1960 
rating decision.  The Veteran did not file a timely appeal.  
Consequently, the October 1960 rating decision became final.  See 
38 U.S.C.A. § 7105; 38 C.F.R. § 20.302.  

The Veteran filed requests in February 2002 and May 2005 to 
reopen his case and reinstate service connection for asthma.  
However, the RO did not reopen his claim (for failure to provide 
or identify new and material evidence) in September 2002 and 
August 2005 rating decisions.  Those decisions also became final 
for lack of an appeal.  Most recently, in September 2005, the 
Veteran filed a request to reopen his claim for service 
connection for asthma.  That request was denied in the November 
2005 rating action which is the subject of the instant appeal.  

Based on the procedural history outlined above, the issue for 
consideration is whether new and material evidence has been 
received to reopen the claim.  

It appears that the RO addressed the asthma claim on the merits 
in its November 2005 rating decision, January 2006 SOC, and April 
and October 2006 SSOCs.  However, the preliminary question of 
whether a previously denied claim should be reopened is a 
jurisdictional matter that must be addressed before the Board may 
consider the underlying claim on its merits.  Barnett v. Brown, 8 
Vet. App. 1, 4, (1995), aff'd, Barnett v. Brown, 83 F.3d 130 
(Fed. Cir. 1996).  Therefore, regardless of the manner in which 
the RO characterized the issue, the initial question before the 
Board is whether new and material evidence has been presented.  

Effective from August 29, 2001, "new" evidence is defined as 
evidence not previously submitted to agency decision-makers.  
"Material" evidence means existing evidence that, by itself or 
when considered with previous evidence of record, relates to an 
unestablished fact necessary to substantiate the claim.  New and 
material evidence can be neither cumulative nor redundant of the 
evidence of record at the time of the last prior final denial of 
the claim sought to be reopened, and must raise a reasonable 
possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

When determining whether the claim should be reopened, the 
credibility of the newly submitted evidence is presumed.  Justus 
v. Principi, 3 Vet. App. 510 (1992).  However, lay assertions of 
medical causation cannot serve as the predicate to reopen a claim 
under section 5108.  See Moray v. Brown, 5 Vet. App. 211, 214 
(1993).

In order for evidence to be sufficient to reopen a previously 
disallowed claim, it must be both new and material.  If the 
evidence is new, but not material, the inquiry ends and the claim 
cannot be reopened.  See Smith v. West, 12 Vet. App. 312, 314 
(1999).  If it is determined that new and material evidence has 
been submitted, the claim must be reopened.  VA may then proceed 
to evaluate the merits of the claim on the basis of all evidence 
of record, but only after ensuring that the duty to assist the 
Veteran in developing the facts necessary for his claim has been 
satisfied.  See Elkins v. West, 12 Vet. App. 209 (1999), but see 
38 U.S.C.A. § 5103A (eliminating the previous requirement of a 
well-grounded claim).

The evidence of record at the time of the last final rating 
action (August 2005) denying the Veteran's claim of entitlement 
to service connection for asthma included the STRs; private 
treatment records from Campbell Health System from June 2002; VA 
examinations from May 1946, May 1948, May 1953, and August 2002; 
letters from neighbors and relatives; and a May 2005 letter from 
the Veteran's family physician, Dr. A.K.G.

The STRs show that the Veteran experienced an asthma attack while 
in active service.  In addition, he reported to his treating Army 
physicians that he had suffered a previous episode of asthma 
accompanied by an upper respiratory infection in November 1941, 
prior to entry into active service.  The VA examination reports 
varied in opinion as to whether the Veteran's asthma had pre-
existed his entry into service.  The most current (August 2002) 
VA examiner opined that the Veteran did not currently have, and 
had not ever previously had, asthma.     

Based upon the above evidence, the claim was denied.  
Specifically, the RO in August 2005 determined that there was no 
new and material evidence which tended to substantiate the 
assertion that chronic bronchial asthma was incurred in or 
aggravated by active service, a fact necessary to the Veteran's 
claim for reinstatement of service connection.  

Evidence added to the record since the time of the last final 
denial in August 2005 includes a September 2005 statement from 
Dr. A.K.G., a July 2006 VA examination and accompanying October 
2006 addendum, and an independent medical evaluation from Dr. 
C.N.B.  Dr. A.K.G.'s statement supports the Veteran's contention 
that environmental factors to which he was exposed in active 
service caused or at least exacerbated his asthma; and Dr. 
C.N.B.'s report states that the Veteran did not have asthma prior 
to service, that the condition began in service, and that the 
Veteran continues to experience recurrence of asthmatic symptoms.  

The evidence added to the record since the previous August 2005 
denial constitutes new and material evidence.  It addresses the 
existence of a current disability and the relationship between 
active service and the disability, which are unestablished facts 
necessary to substantiate the claim.  Further, the new evidence 
is not redundant, as there have been no previous records 
containing a definitive explanation addressing the issue of 
causation of the Veteran's asthma.  Finally, it does raise a 
reasonable possibility of substantiating the claim.  Therefore, 
the Board finds that the criteria under 38 C.F.R. § 3.156(a) have 
been satisfied, and the claim is reopened.  

Because the RO considered the merits of the underlying service 
connection claim in the November 2005 rating action, and also in 
the January 2006 SOC, and April and October 2006 SSOCs that are 
part of the pending appeal, the Board may proceed with appellate 
review at this time without prejudicing the Veteran.  See Bernard 
v. Brown, 4 Vet. App. 384, 393-94 (1993).  

V.  Service Connection on the Merits

A.  Applicable Law

Service connection may be granted for disability which is the 
result of disease or injury incurred in or aggravated by service.  
38 U.S.C.A. § 1110 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303(a) 
(2010). 

Where there is a chronic disease shown as such in service or 
within the presumptive period under 38 C.F.R. § 3.307 so as to 
permit a finding of service connection, subsequent manifestations 
of the same chronic disease at any later date, however remote, 
are service connected, unless clearly attributable to 
intercurrent causes.  This rule does not mean that any 
manifestation in service will permit service connection.  To show 
chronic disease in service there is required a combination of 
manifestations sufficient to identify the disease entity, and 
sufficient observation to establish chronicity at the time, as 
distinguished from merely isolated findings or a diagnosis 
including the word "chronic."  When the disease identity is 
established, there is no requirement of evidentiary showing of 
continuity.  When the fact of chronicity in service is not 
adequately supported, then a showing of continuity after 
discharge is required to support the claim.  38 C.F.R. § 
3.303(b).

Service connection may be granted for disease that is diagnosed 
after discharge, when all the evidence, including that pertinent 
to service, establishes that the disease was incurred in service.  
38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d).

The Court of Appeals for Veterans Claims has held that, in order 
to prevail on the issue of service connection, there must be:  
(1) medical evidence of a current disability; (2) medical, or in 
certain circumstances, lay evidence of in-service incurrence or 
aggravation of a disease or injury; and (3) medical evidence of a 
nexus between the claimed in-service disease or injury and the 
present disease or injury.  Hickson v. West, 12 Vet. App. 247, 
253 (1999).

It is the Board's responsibility to evaluate the entire record on 
appeal.  See 38 U.S.C.A. § 7104(a).  When there is an approximate 
balance in the evidence regarding the merits of an issue material 
to the determination of the matter, the benefit of the doubt in 
resolving each such issue shall be given to the claimant.  38 
U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of 
Appeals for Veterans Claims held that an appellant need only 
demonstrate that there is an "approximate balance of positive 
and negative evidence" in order to prevail.  The Court has also 
stated, "It is clear that to deny a claim on its merits, the 
evidence must preponderate against the claim."  Alemany v. 
Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.

B.  Facts and Analysis

In this case, the Veteran contends that he has a current 
diagnosis of asthma which was caused by his active military 
service in the Army.  

A review of the Veteran's STRs shows that his January 1942 
entrance medical examination was normal, with the exception of 
first degree pes planus and hemorrhoids.  There is no indication 
or notation of respiratory problems or asthma.  

Next, while in active service, the Veteran was hospitalized for 
approximately 10 days in February 1943 for acute bronchial 
asthma.  The form entitled "Clinical Record Brief" states "No 
E.P.T.E. [i.e., did not exist prior to entry]" in the space to 
indicate whether the illness or injury was incurred in the line 
of duty.  Further review of the records from his hospitalization 
reveals that he was admitted with asthmatic symptoms, and gave a 
history of recurrences of wheezing and shortness of breath with 
each cold with which he had suffered since the pre-service onset 
in November 1941.  At that time, he had an illness characterized 
by fever, malaise, weakness, headaches, and cough.  In addition, 
with this illness, he had wheezing and shortness of breath, and 
was told that he had asthma.  A Progress Note dated February 15, 
1943, reported that the patient had been completely asymptomatic 
since admission.   A February 18, 1943, Progress Note stated that 
the history pointed to a mild asthma presumably secondary to 
bacterial antigen and that, because such an individual is very 
apt to develop sensitivity to other antigens, and considering the 
discomfort of wearing a gas mask, his job responsibility should 
be reclassified.  In a Final Summary entry dated February 20, 
1943, the treatment provider wrote that the Veteran's history 
suggested bronchial asthma, presumably due to sensitization to 
bacterial antigens. 

There were no further recorded incidents of asthma while the 
Veteran was in service.  His October 1945 separation examination 
report has a notation of the hospitalization for asthma in 
February 1943, but is otherwise normal.  Under the "Lungs" 
category, the report states that they were normal, but also 
states, "Asthma, LD (Line of Duty), no E.P.T.S.," indicating 
that the condition was incurred during active service and not 
prior to service.

Following service, the Veteran filed a claim for entitlement to 
service connection for asthma in December 1945.  Then, he was 
afforded several VA examinations shortly after separation from 
service.  First, after a normal physical examination, the May 
1946 VA examiner diagnosed asthma by history only, with attacks 
occurring every three months on average.  

Next, during a May 1948 VA examination, there was equal and full 
expansion of the lungs, which were normal to percussion.  On 
auscultation, there was an accentuation of the expiratory phase 
with occasional high-pitched bronchiolar rale.  The examiner 
diagnosed mild bronchial asthma.  There is also notation in the 
report that this condition had existed prior to service, first 
appearing in 1941 (consistent with the history the Veteran 
provided in the STRs).  

Physical examination results were similar during a May 1953 VA 
examination.  Expansion was equal, tactile fremitus and 
percussion were normal, and breath sounds were broncho-vesicular 
with no sonorous or sibilant rales, and no post-tussive rales.  
The diagnosis was chronic bronchial asthma from history and 
records.  

The next indication of respiratory problems is contained in June 
2002 records from the Campbell Health System.  Thus, there is no 
documentation showing treatment for asthmatic or respiratory 
symptoms until almost 57 years after separation from service.  In 
this regard, the Board notes that evidence of a prolonged period 
without medical complaint or treatment and the amount of time 
which has elapsed since military service can be considered, along 
with other factors, as evidence against the claim.  Maxson v. 
Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  

The Campbell Health System records show that the Veteran 
underwent a pulmonary function study which was found to be 
abnormal.  Specifically, the report indicates mild vital capacity 
deficit, minimal volume and flow improvement after bronchodilator 
at present, mild-to-moderate air trapping, moderate total lung 
capacity deficit, moderate reduction in diffusing capacity, and 
flow volume loops that indicated moderate restrictive defect.  
These findings were consistent with a restrictive ventilator 
defect suggestive of interstitial lung disease, pulmonary 
vascular, or occlusive disease.  The report stated that some of 
the vital capacity deficit might be due to cardiac enlargement, 
interstitial pulmonary fibrosis, chest wall disease, previous 
lung tissue resection, etc.  There is no diagnosis of asthma 
contained in those records.  

Two months later, the Veteran was afforded a VA examination, in 
August 2002.  The examiner had access to the claims file.  At 
that examination, the Veteran told the examiner he had no 
previous history of having had respiratory disease or asthma 
prior to entering the service.  He stated he had been treated one 
month before the examination for asthma, which had followed on 
the heels of a bronchial infection.  This was the first time he 
had received any treatment for a respiratory problem in 20 years.  
Pulmonary function tests showed minimal restrictive ventilatory 
defect, and were not consistent with any current or prior 
asthmatic component.  According to the examiner, the Veteran's 
history showed that he had suffered an episode of bronchitis 
while in the service with a transitory asthmatic affect that was 
readily contained on medication.  The examiner opined that the 
condition had not been permanently worsened by service.  The 
current examination, however, did show crackling rales in the 
right lower lung field, posteriorly.  Chest X-rays showed 
eventration of the left hemidiaphragm but was otherwise normal.  
The lungs were clear.  

Next, the claims file contains a May 2005 letter from the 
Veteran's family physician, Dr. A.K.G.  The doctor stated that 
the Veteran has current diagnoses of restricted lung disease and 
mild intermittent asthma, and that prior to October 1942 he had 
had no respiratory problems.  Further, his first episode of 
asthma had occurred while he was in the military.  The doctor 
noted the Veteran worked in a dusty environment as an aircraft 
repairman, and quit smoking in 1957.  Finally, according to the 
doctor, while the Veteran's respiratory status does not require 
oxygen, it does make him more susceptible to infectious 
processes.  

The file also contains letters from the Veteran's sister and 
neighbor.  The letter from his sister, dated in July 2005, states 
that the Veteran did not have asthma prior to his enlistment in 
the Army.  Further, she asserts that asthma symptoms surely would 
have shown up had the condition pre-existed service, as the 
Veteran worked outdoors with livestock.  The July 2005 letter 
from the Veteran's neighbor, 
C.A.W., echoes the same opinion and assertion that the Veteran 
did not have asthma prior to service.  

Next, Dr. A.K.G. wrote another letter dated in September 2005, 
wherein she asserted that the Veteran developed asthma and 
restrictive lung disease due to environmental factors to which he 
was subjected in the military.  The doctor said she based this 
opinion on the history of the Veteran's pulmonary symptoms and 
medical records.

In July 2006, the Veteran was afforded another VA examination.  
He reported he had experienced a recurrent cough over the years 
since his first asthma attack.  He said he had smoked about 10 
cigarettes a day for 10 to 12 years, but quit smoking 50 years 
ago.  Pulmonary function tests were performed and showed an 
obstructive pattern with no impairment, which could be seen as 
normal.  Concomitant restriction or air trapping could not be 
ruled out.  Chest X-rays were taken and compared to X-rays from 
August 2005.  There was no significant interval change.  There 
was persistent elevation of the left diaphragm with no change and 
a calcified granuloma in the left lower lung; the lungs were 
clear of parenchymal infiltrate, and the heart was not enlarged.  
The examiner, after reviewing the claims file and performing a 
physical examination including the above tests, diagnosed mild 
and persistent asthma, by history and medical documents from 
1942.  Further, the examiner found no evidence that the Veteran 
had a history of asthma prior to entry into active service.  The 
examiner stated it would be speculation to say whether any 
environmental exposure in the military led to the Veteran's 
asthma.  

The July 2006 VA examiner authored an addendum opinion dated in 
October 2006 after reviewing sections of the claims file tabbed 
by the RO.  The examiner stated the medical documents in the 
claims file provided evidence that the Veteran experienced 
asthmatic symptoms prior to entering service.  Further, the 
examiner stated there was no evidence that the Veteran's asthma 
was permanently aggravated by military service.  She based this 
opinion on the history provided by the Veteran that his last 
asthma attack had been in 1946, that he did not currently use an 
inhaler, that he had had some recent hospitalizations for 
pneumonia which did require the use of oxygen, and that he had a 
smoking history and obstructive sleep apnea.  

Finally, there is a December 2008 report by Dr. C.N.B., a private 
physician retained by the Veteran for an independent medical 
evaluation.  Dr. C.N.B. reviewed the Veteran's claims file but 
did not physically examine him or take additional history from 
the Veteran.  The doctor opines that the Veteran did not have 
asthma prior to entering service.  He bases this opinion on the 
physical findings at the Veteran's 1942 entrance examination; 
namely, the chest measurements on inspiration and expiration, the 
pulse measurement taken after exercise, and the lack of any 
notation that the Veteran had difficulty breathing in the 
examination report.  Further, he discredits the report by the 
Veteran in the STRs that he had an asthma attack in 1941, prior 
to entering service, as the Veteran is a layperson not qualified 
to make such diagnoses.  Next, Dr. C.N.B. supports the contention 
that the Veteran has a current diagnosis of asthma that has been 
longstanding since active service.  The doctor challenges the 
opinion of the August 2002 VA examiner that the Veteran does not 
have a current diagnosis of asthma.  Specifically, Dr. C.N.B. 
states that the August 2002 pulmonary function test, particularly 
the albuterol test, was done incorrectly, as the Veteran had the 
same FEV and FVC prior to and after bronchial dilator therapy, 
which he says is impossible.  An additional criticism was that 
the 2002 VA examiner's statement that there was no significant 
obstructive defect is not the same as no obstructive defect, and 
thus, the change in diagnosis from asthma to no asthma is not 
well supported.  Moreover, the chest films from 2005 and 2006 
show an elevated left diaphragm which is consistent with 
pulmonary scarring, as would be expected in longstanding asthma 
with recurrent infections.  Finally, the 2002 VA examiner did not 
incorporate the Veteran's history of being exposed to airplane 
dust while in service, and the 2006 VA examiner did not account 
for the results of the sputum test conducted in May 1953, which 
had 6 eosinophils and is consistent with asthma.  

The Board has first considered whether the Veteran has a current 
diagnosis of asthma, and concludes that the preponderance of the 
evidence shows that he does not currently have asthma.  In 
reaching this conclusion, the Board has weighed a number of 
medical opinions.  In cases such as this, where there are 
conflicting statements or opinions from medical professionals, it 
is within the Board's province to weigh the probative value of 
those opinions.  In Guerrieri v. Brown, 4 Vet. App. 467, 470-71 
(1993), the Court of Veterans Appeals stated:

The probative value of medical opinion evidence is 
based on the medical expert's personal examination of 
the patient, the physician's knowledge and skill in 
analyzing the data, and the medical conclusion that 
the physician reaches. . . .  As is true with any 
piece of evidence, the credibility and weight to be 
attached to these opinions [are] within the province 
of the adjudicators . . . .

So long as it provides an adequate reason or basis for doing so, 
the Board does not err by favoring one competent medical opinion 
over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).  
Greater weight may be placed on one examiner's opinion over 
another depending on factors such as reasoning employed by the 
examiners and whether or not, and the extent to which they 
reviewed prior clinical records and other evidence.  Gabrielson 
v. Brown, 7 Vet. App. 36, 40 (1994).  In addition, the 
thoroughness and detail of a medical opinion are among the 
factors for assessing the probative value of the opinion.  See 
Prejean v. West, 13 Vet. App. 444, 448-9 (2000).

First, the Board acknowledges that the October 1945 separation 
examination report, as well as the VA examinations from May 1946, 
May 1948, and May 1953, all appear to support a diagnosis of 
asthma at that time.  However, in determining whether the Veteran 
has a current diagnosis of asthma, the Board will focus on more 
recent medical documentation.  

In support of a current diagnosis of asthma are the opinions of 
Drs. A.K.G. and 
C.N.B.  By contrast, the August 2002 VA examiner concluded that 
the Veteran's history and present physical examination were not 
consistent with a diagnosis of asthma.  The Board finds that the 
opinions of Drs. A.K.G. and C.N.B. are less probative than that 
of the 2002 VA examiner, for the following reasons.  

Dr. A.K.G.'s May 2005 letter stated that the Veteran has a 
current diagnosis of mild intermittent asthma.  However, she 
provides no basis for this diagnosis, such as test results or 
physical examination findings, nor are there any other records 
from that doctor which contain such results or findings.  In 
fact, a pulmonary function study from June 2002 from the Campbell 
Health System, with Dr. A.K.G.'s name at the bottom, indicates no 
finding of asthma.  Thus, Dr. A.K.G.'s opinion is conclusory and 
appears to be speculative at best.  Speculative medical opinions 
are insufficient to establish service connection.  See Stegman v. 
Derwinski, 3 Vet. App. 228, 230 (1992); Tirpak v. Derwinski, 2 
Vet. App. 609, 611 (1992).    

Next, Dr. C.N.B. concluded that the Veteran has a current 
diagnosis of asthma on the basis of a review of medical records, 
without having seen or examined the Veteran.  The doctor seems to 
base this opinion somewhat on the physical examination findings 
from the 1942 service separation examination as well as the VA 
examinations from 1946, 1948, and 1953 that followed shortly 
thereafter.  As stated above, the Board does not find these 
documents to be probative on the question of whether the Veteran 
has a current diagnosis of asthma.  Further, Dr. C.N.B. bases his 
opinion in part on discrediting the opinion of the 2002 VA 
examiner.  First, he concludes that the pulmonary function test 
must have been administered incorrectly.  However, this is a 
conclusory statement with no basis other than that the doctor 
disagrees with the results of the test.  It is speculative, and 
thus cannot be relied upon to form the basis of an opinion 
regarding whether a current diagnosis exists.  See Stegman, 3 
Vet. App. at 230 (1992); Tirpak, 2 Vet. App. at 611 (1992).  As 
stated above, Dr. C.N.B. further asserts that the 2002 VA 
examiner did not take the films showing an elevated left 
diaphragm into account.  However, upon reviewing the 2002 VA 
examination report, the Board notes that the results of chest X-
rays taken in August 2002 which show irregularity of the left 
hemidiaphragm are attached to the examination report, which would 
indicate that it was a factor in the examiner's conclusion.  

By contrast, the August 2002 VA examiner conducted a physical 
examination of the Veteran, including a pulmonary function test 
and chest X-rays, and reviewed the claims file, as stated in the 
report and made apparent by mention of some highlights of the 
Veteran's medical history.  The examiner also took a verbal 
history from the Veteran.  Notably, as previously stated, the 
Veteran told the examiner he had not been treated for a 
respiratory problem in 20 years, which buttresses the examiner's 
opinion that the Veteran does not currently have asthma.  The 
2002 VA examiner also provided specific narrative support for his 
opinion.  

With regard to the 2006 VA examiner's diagnosis of asthma by 
history, thorough review of the report shows that the diagnosis 
was made on the basis of medical documentation from 1942 and the 
Veteran's verbal history rather than on any current testing or 
physical examination.  For example, the examiner stated the 
pulmonary function test performed as part of the examination 
could be read as normal.  Thus, the examiner made a diagnosis 
based on history and not current physical symptoms or testing, 
and the Board does not consider that diagnosis to be probative in 
determining whether there is a current asthma disorder. 


For these reasons, Drs. A.K.G. and C.N.B's and the 2006 VA 
examiner's opinions are found to be less probative than the 
opinion of the August 2002 VA examiner regarding whether a 
current diagnosis of asthma exists.  Accordingly, the greater 
weight of the probative evidence is against finding that the 
Veteran has a current diagnosis of asthma.  As a result, the 
claim must fail.  Indeed, in the absence of proof of a present 
disability there can be no valid claim.  Brammer v. Derwinski, 
3 Vet. App. 223, 225 (1992).  The Board recognizes that the Court 
has held that the presence of a chronic disability at any time 
during the claim process can justify a grant of service 
connection, even where the most recent diagnosis is negative.  
McClain v. Nicholson, 21 Vet. App. 319 (2007).  However, where 
the overall record (which here includes exhaustive medical 
evidence as well as history) fails to support a current diagnosis 
of the claimed disability, that holding is inapplicable.

The Board acknowledges that the Veteran is competent to give 
evidence about what he experienced; for example, he is competent 
to discuss his current shortness of breath and other experienced 
symptoms.  See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994).  
Moreover, the Federal Circuit Court has held that in certain 
situations, lay evidence can even be sufficient with respect to 
establishing medical matters such as a diagnosis.  Specifically, 
in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the 
Federal Circuit commented that competence to establish a 
diagnosis of a condition can exist when (1) a layperson is 
competent to identify the medical condition, (2) the layperson is 
reporting a contemporaneous medical diagnosis, or (3) lay 
testimony describing symptoms at the time supports a later 
diagnosis by a medical professional.  See also Davidson v. 
Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may 
comment on lay-observable symptoms).

Similarly, the Court of Appeals for Veterans Claims has held 
that, when a condition may be diagnosed by its unique and readily 
identifiable features, the presence of the disorder is not a 
determination "medical in nature" and is capable of lay 
observation.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  
Furthermore, lay evidence concerning continuity of symptoms after 
service, if credible, is ultimately competent, regardless of the 
lack of contemporaneous medical evidence.  Buchanan v. Nicholson, 
451 F.3d 1331 (Fed. Cir. 2006).  However, the resolution of 
issues which involve medical knowledge, such as the diagnosis of 
a disability and the determination of medical etiology, requires 
professional evidence.  See Espiritu v. Derwinski, 2 Vet. App. 
492, 495 (1992).  

In the present case, the Veteran asserts that he has asthma that 
is related to service.  Specifically, he asserts that his first 
attack occurred in service and that he has had recurrent symptoms 
since that time.  Even if his statements can be construed as 
alleging continuity of symptoms since active service, the absence 
of documented complaints or treatment for 47 years following 
military discharge is more probative than his current 
recollection as to symptoms experienced in the distant past.  See 
Curry v. Brown, 7 Vet. App. 59 (1994).  Further, the Veteran 
stated during the August 2002 VA examination that he had not had 
respiratory problems in the past 20 years.  Therefore, continuity 
has not here been established, either through the competent 
medical evidence or through the Veteran's statements.   

The Board recognizes the sincerity of the Veteran's belief that 
he has a disability at this time which was caused by active 
service.  However, the resolution of issues which involve medical 
knowledge, such as the diagnosis of a disability and the 
determination of medical etiology, require professional evidence.  
See Espiritu v. Derwinski, supra.  The Veteran's lay statements 
may be competent to support a claim for service connection by 
supporting the occurrence of lay-observable events or the 
presence of disability or symptoms of disability subject to lay 
observation, as discussed above.  However, in this case, the 
weight of the evidence is against a finding that the Veteran has 
the claimed disability.  The physical testing and examinations 
performed do not show evidence of asthma, and the Veteran himself 
has stated that there was a period of 20 years during which he 
experienced no respiratory problems.  

Thus, the weight of the competent evidence is against a grant of 
service connection for asthma.  Because the preponderance of the 
evidence is against the claim, there is no reasonable doubt to 
resolve in the Veteran's favor and the claim must be denied.  See 
38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.   The 
Board appreciates the vigorous advocacy by the Veteran's 
representative in this case.




ORDER

The Board's decision of January 15, 2009, is hereby vacated.

Clear and unmistakable error was not committed by the RO in the 
October 1960 rating decision which severed service connection for 
asthma, and the appeal as to CUE is denied.  

The reopened claim for service connection for asthma is denied.  



___________________________
ANDREW J. MULLEN 
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs