Citation Nr: 1031042 Decision Date: 08/18/10 Archive Date: 08/24/10 DOCKET NO. 09-14 933 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for asthma. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Katie Molter, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1992 to June 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision in which the RO denied the Veteran's claim for service connection for asthma. The Veteran perfected a timely appeal. In October 2009, the Veteran testified during a videoconference Board hearing before the undersigned Acting Veterans' Law Judge at the RO. A copy of the hearing transcript has been reviewed and associated with the claims file. FINDING OF FACT The evidence of record demonstrates that the Veteran's current asthma is casually related to his military service. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the criteria for service connection for asthma are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In light of the Board's favorable decision on the Veteran's service-connection claim, the Board finds that all notification and development action needed to fairly adjudicate this appeal has been accomplished. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In addition to the above requirements, there are alternative methods of establishing service connection under 38 C.F.R. § 3.303(b). For example, a claimant may establish service connection by chronicity. Chronicity is established if the claimant can demonstrate (1) the existence of a chronic disease in service and (2) present manifestations of the same disease. See Savage v. Gober, 10 Vet. App. 488 (1997). Alternatively, the claimant may establish service connection by continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology. Savage, 10 Vet. App. at 495. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the instant case, there is evidence of a current disability. As a September 2009, private treatment record shows that Veteran was diagnosed with asthma. In addition, there is also medical evidence of in-service incurrence. Service treatment records show that the Veteran was seen for a follow-up appointment for bronchitis in September 1992. He had slight wheezing to the right lung. The Veteran was assessed as having resolving bronchitis and there is a notation regarding exercise induced asthma. Another September 1992 service treatment record shows that the Veteran complained of having problems breathing when finishing up a run-the Veteran stated he could not control his breathing. The Veteran was assessed as having bronchitis and possible exercise-induced asthma. An October 1992 service treatment record reveals that the Veteran reported having hard time breathing. Upon examination of the lungs, the Veteran had wheezing bilaterally. An August 1994 service treatment record shows that the Veteran complained of asthma and shortness of breath. The Veteran was assessed as having exercise-induced asthma with bronchitis. Later the same month, the Veteran was seen for a follow-up for his exercise-induced asthma and he was assessed as having exercise-induced asthma with restrictive airway disease. Given that that the evidence of record establishes that the Veteran was treated for exercise-induced asthma in service and has a current diagnosis of asthma, the issue before the Board is whether there is competent evidence of a nexus between the in- service disease and the current disability. In An April 2009 written statement, the Veteran indicated that he is showing all of the same asthma symptoms he had while he was in the Marines and has shown these symptoms consistently since he was diagnosed with asthma in the Marines. In addition, the Veteran testified at his October 2009 Board hearing that his asthma symptoms began in service and have continued since that time. An October 2009 statement, the Veteran's wife indicates that the Veteran told her he began having asthma symptoms while in the Marines. His wife's statement also describes her accounts of witnessing the Veteran's asthma symptoms that have continued since that time. Similarly, in a September 2009 statement, the Veteran's mother indicates that early during the Veteran's military career, she received a call from the Veteran stating that he had been diagnosed with asthma. Lay statements may be competent to support a claim as to lay- observable events or lay-observable disability or symptoms. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496. In this case, throughout the duration of the appeal, the Veteran has testified and submitted numerous written statements which indicate a continuity of symptomatology. Thus, the Board finds the Veteran's statements and those of others regarding continuity of symptomatology persuasive, competent and credible. See Buchanan, 451 F. 3d at 1336. Also, in Jandreau, supra, the United States Court of Appeals for the Federal Circuit commented that competence to establish a diagnosis of a condition can exist when (1) a lay person is competent to identify the medical condition, (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). While there is no medical opinion of record which specifically links the Veteran's asthma to his military service, there is no evidence of record which weighs against the Veteran's claim. Considering the totality of the evidence, including the Veteran's credible assertions of in-service asthma symptoms and continuity of such symptoms following service, and the nature of the disability, the Board finds that the Veteran's asthma began in service and was continuous after service. The lay and medical evidence shows a current disability of asthma. Affording the Veteran the benefit of the doubt on the question of medical nexus, the Board finds that the criteria for service connection for asthma are met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for asthma is granted. ____________________________________________ M. R. VAVRINA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs