Citation Nr: 1301442 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 08-18 739 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for gout (claimed as osteoarthritis). 3. Entitlement to service connection for a respiratory disorder, claimed as bronchial asthma. ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from August 1974 to December 1974 and from January 2003 to January 2006. He has also served in the Army Reserves. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2007 rating decision by the United States Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In that decision, the RO denied service connection for a right knee disorder, gout, and asthma. The RO also assigned initial disability ratings of 20 percent for diabetes mellitus and 10 percent for hypertension. In December 2009, the Board denied an initial disability rating higher than 20 percent for diabetes. The Board remanded the issues of service connection for a right knee disorder, gout, and asthma, and the issue of a higher initial rating for hypertension to the RO via the Appeals Management Center (AMC) in Washington, DC, for the development of additional evidence. In March 2012, the Board granted an initial rating of 20 percent for hypertension. The Board again remanded the issues of service connection for a right knee disorder, gout, and asthma for the development of additional evidence. At this time, the Board is satisfied that there has been substantial compliance with the remand directives. The Board will proceed with review of the previously remanded service connection claims. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. FINDINGS OF FACT 1. Prior to entering active service in January 2003, the Veteran underwent right knee arthroscopy for a meniscal tear. 2. Any increase in right knee disability during active service in 2003 to 2006 was due to the natural progress of the preexisting pathology. 3. The Veteran did not have gout when he entered active service in January 2003. 4. Gout did not become manifest during his 2003 to 2006 period of active service. 5. Any post-service gout did not develop as a result of any injury or disease during service. 6. A respiratory disorder, diagnosed as hyperreactive airway, existed before the Veteran's 2003 to 2006 period of active service. 7. The preexisting respiratory disorder did not increase in disability during the Veteran's 2003 to 2006 service. CONCLUSIONS OF LAW 1. A current right knee disability, including arthritis, was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2012). 2. Gout was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2012). 3. A respiratory disorder, including hyperreactive airway and bronchial asthma, was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has stated that the 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The RO provided the Veteran with VCAA notice in a July 2007 letter, issued prior to the September 2007 initial unfavorable decision on the appealed claims. That letter addressed the information and evidence necessary to substantiate claims for service connection, and informed the Veteran how VA assigns disability ratings and effective dates. The letter also addressed who was to provide the evidence. The claims file contains the Veteran's service medical records, post-service medical records, statements from the Veteran, and the reports of VA medical examinations, including examinations that addressed the claimed right knee disorder, gout, and asthma. These examinations were adequate for rating purposes. The Veteran has not identified any additional potentially relevant evidence that is not associated with the claims file. In response to the Board's remand instructions, reserve service records and additional service treatment records were sought and obtained. An additional VA medical examination was performed and the report included opinions regarding the likely etiology of a right knee disability, gout, and asthma. The Board is satisfied that there has been substantial compliance with the remand directives, such that the Board may proceed with review of the case. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that the Veteran was notified and aware of the evidence needed to substantiate the claims on appeal, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration of the claims on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Right Knee Disorder and Gout The Veteran essentially contends that a right knee disorder and gout began or were aggravated during his active service. The claims file contains some medical records that address knee and other joint pain and gout or gouty arthritis together or as related or overlapping. As some of the history regarding right knee disorder and gout is shared, the Board is discussing those service connection claims in the same section of this decision, while continuing to treat each issue as a separate claim. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In general, service connection requires (1) evidence of a current disability; (2) medical evidence, 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 current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 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 service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. For a disorder to be considered aggravated in service, there must be worsening of the underlying condition, not just temporary or intermittent flare-ups of the symptoms of the condition. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Court has stated that, under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or in certain circumstances lay evidence of a nexus between the present disability and the post-service symptomatology. See Savage, 10 Vet. App. at 495-96; Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The Court has indicated that "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. 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, 1 Vet. App. at 54. On the report of a May 1974 medical examination for entrance into his earlier period of active service, the examiner checked normal for the condition of the Veteran's lower extremities and other musculoskeletal structures. Outpatient treatment records from the 1974 active service are silent for musculoskeletal complaints, including right knee complaints. The claims file contains some medical records from reserve service and some private medical records from the years between the Veteran's two periods of active service. In reserve service outpatient treatment in June 1978, the Veteran reported a sore throat and soreness in his bilateral elbow and knee joints. In August 1983, he related a three day history of pain in both knees, worse in the left knee, with no apparent injury. The treating clinician found no evidence of a cartilage or ligament injury and no effusion or crepitation of the patellae. The clinician listed an impression of chondromalacia of the patella, and prescribed limitation to light duty for five days. The Veteran was seen at a service department clinic in June 1986 reporting a two day history of pain in his right wrist, both knees, and low back. He stated that he had a history of gouty arthritis that was not severe. He related that at present he was off medication and off of a related diet. The treating clinician indicated that the Veteran should not run, march, or engage in physical training. The clinician prescribed an nonsteroidal anti-inflammatory medication (NSAID). On follow up five days later, the Veteran reported ongoing pain in both knees and the right wrist. He asserted that the medication had adverse side effects, and the clinician prescribed a different NSAID. A record of private treatment of the Veteran in June 2002 contains notations of a history of gout and of right arthroscopy. When the Veteran returned to active service in January 2003, a medical assessment report was completed. The Veteran reported that since his last medical assessment he had missed duty for longer than three days due to back pain. He stated that he had received treatment for asthma bronchitis, that he was on a medication to treat hypertension, and that recently he had been diagnosed with diabetes. The Veteran had a service medical examination in September 2003. The examiner noted crepitus in both knees, and listed an assessment of a degenerative condition of the knees. A sick slip from April 2004 indicated that the Veteran had moderate osteoarthritis with right knee pain. The Veteran was placed on a limited duty profile, and it was indicated that he could wear a knee brace. In October 2004 treatment for right knee pain, the Veteran reported that he had arthroscopic surgery in 2001 due to a meniscal tear. The treating clinician's assessment was osteoarthritis of the right knee. A knee support brace was provided, and the Veteran was placed on a permanent profile, restricting him from running, due to right knee arthritis. A February 2005 medical history includes a notation of a history of right knee arthroscopy, and the indication of present right knee osteoarthritis. The Veteran also reported a history of gout. In outpatient treatment in November 2005, arthritis was included in a list of conditions. On a January 2006 medical assessment, it was noted that the Veteran had a permanent profile due to lumbar degenerative joint disease and other degenerative joint disease. After service, the Veteran enrolled in August 2007 for treatment at a VA facility. He reported a history of gout and arthritis, as well as hypertension, diabetes, and allergic asthma. On primary care review, no joint pain was reported, and the ranges of motion of the extremities were intact. From November 2007 forward, it was noted that the Veteran was on a non-VA medication for gout. Treatment notes from February 2008 reflect that knee arthralgia was stable. In May 2008, the Veteran reported a one week history of pain in his right leg and his back. In May 2008 MRI was taken of the Veteran's right knee at a private facility. The MRI showed degenerative joint disease and patellar chondromalacia, knee joint effusion, and tears of the medial meniscus and anterior cruciate ligament. In a June 2008 statement, the Veteran asserted that he did not have right knee problems, problems with gout, or problems with asthma when he entered active duty in 2003, but he received treatment for all of those conditions during his 2003 to 2006 period of active service. The Veteran underwent a VA joints examination in April 2010. The examining physician reported having reviewed the claims file. It was noted that the Veteran had reported right knee pain since 2002, and had undergone right knee arthroscopy in 2002 due to a meniscal tear. It was indicated that the Veteran attributed right knee problems to injury during active service. The Veteran related that the current manifestations were occasional right knee pain, especially after prolonged walking or during cold and rainy days. He indicated that the knee disorder was treated with pain medication. The examiner noted in the right knee crepitation and evidence of pain, pain with motion, and meniscus abnormality. Right knee x-rays showed osteoarthritis. The examiner noted that the Veteran's medical records showed a diagnosis of chondromalacia patellae in 1983, a history of gout and bilateral knee pain in 1986, and a diagnosis of bilateral knee arthritis in September 2003. The examiner expressed the opinion that the Veteran's right knee condition was related to the aging process. The examiner stated that the Veteran's right knee condition existed prior to service and had been worsening due to the natural progression of the condition. The examiner noted that the Veteran reported having gout that was manifested by right wrist pain. The Veteran stated that he had occasional pain and swelling in the wrist, especially after eating red meat. He indicated that the most recent symptoms occurred two weeks before the 2010 examination. He reported that he took daily medication for gout. The examiner found no evidence of pain with motion of the right wrist. The impression from right wrist x-rays was, "suggestion of a small erosion at the ulnar styloid, which could be on the basis of known diagnosis of crystal deposition arthropathy." The examiner noted that the Veteran's medical records from 1986 and 2002 showed a history of gout. The examiner found that the records showed sufficient evidence that the Veteran was diagnosed with gout before service. The examiner opined that the Veteran's gout did not increase in severity during his active military service. In the March 2012 remand, the Board found that the physician who examined the Veteran in April 2010 did not provide rationale for the opinions he provided. The Board instructed that the claims file be returned to the examiner for review and opinions with explanation of the rationale. In March 2012, the physician who examined the Veteran in April 2010 reported having reviewed the claims file. The physician stated that there is significant evidence in medical records from 1983, 1986, and 2002 that the Veteran had gout arthritis and chondromalacia of the right knee prior to entering active service in 2003. He opined that the preexisting right knee disability did not increase in severity during the 2003 to 2006 service, and that any increase in severity was due to the natural progression of the preexisting conditions. He stated that pre-service medical records documented very well that disorders were present way before service. He opined that it is less likely than not that right knee gout arthritis was aggravated by service. The physician added that it was less likely than not that gout arthritis of the right wrist was caused or aggravated by service. In an October 2012 rating decision, the RO granted service connection for peripheral neuropathy in the left and right lower extremities, associated with diabetes. In January 2003, when the Veteran entered his second period of active service, a medical assessment report was completed. That report contains no indication of a history of right knee problems. As no right knee disorder was noted on entrance into service, VA must presume that his right knee was in sound condition at that time unless clear and unmistakable evidence demonstrates that right knee disability existed prior to service and was not aggravated by service. Medical records show that the Veteran reported pain in his right and left knees in 1978, 1983, and 1986. In 1983, a clinician concluded that the symptoms were due to chondromalacia. A 2002 medical record notes a history of right arthroscopy, and records from April 2004, October 2004, and February 2005, contain notations that the Veteran underwent right knee arthroscopy. The October 2004 record specifies that the surgery was performed in 2001. The multiple records showing right knee symptoms and surgery before the 2003 to 2006 active service period arguably are sufficient to constitute clear and unmistakable evidence that the Veteran had right knee pathology before he entered active service in 2003. There is a more difficult question as to whether clear and unmistakable evidence demonstrates that preexisting right knee problems were not aggravated by service. The Veteran evidently had right knee arthroscopy a couple of years before entering active service in 2003, but he did not report active right knee symptoms or impairment when he was assessed at entrance in January 2003. The finding of crepitus in September of that year could suggest symptoms dating back to January, but that question was not addressed at the time. Later in the service period the Veteran had treatment for right knee pain, and eventually was put on a restricted duty profile because of right knee arthritis. With no complaint in January 2003 and a brace and a profile from 2004, the service medical records tend to show increase in right knee disability during service. The VA examiner has opined that the right knee disability did not increase in severity during service. By way of the requested explanation, the examiner noted the finding of chondromalacia long before service. The examiner did not compare the condition of the knee in January 2003 and later in service, however. The examiner did state, albeit without further explanation, that any increase in severity during service was due to the natural progress of the disease. The available evidence lacks information about the condition of the Veteran's right knee in January 2003; there are no contemporaneous statements as to whether it was symptomatic or sound at that time. The opinion of the VA examiner warrants significant evidentiary weight as he is a physician and thus professionally competent to render opinions regarding medical etiology. After reviewing the records and pointing out specific records as support, that physician concluded that the right knee disability did not increase in service, and he made a specific finding that any increase in right knee disability during service was due to the natural progress of the preexisting condition. The Board finds the physician's opinion persuasive and sufficient to constitute clear and unmistakable evidence to rebut the presumption that the Veteran's right knee was sound when he entered service. The Board further concludes, based on the greater persuasive weight of the evidence, that the right knee condition for which the Veteran underwent arthroscopy before 2003 was not aggravated in service. As right knee disability was not incurred or aggravated in service, the Board denies service connection for that disability. At various times, the Veteran has indicated that he has gout that affects his right wrist, both knees, and possibly his low back. He did not report gout, and no clinician found gout, in the assessment he underwent in January 2003. Therefore, he is presumed to have not had chronic gout at that time unless clear and unmistakable evidence demonstrates that he had gout prior to service and that gout was not aggravated by service. The evidence suggesting that the Veteran had gout or gouty arthritis before service is a 1986 reserve service medical record and a 2002 private medical record. Each of those records reflected that the Veteran reported a history of gout. The file does not contain any documentation of a medical diagnosis of gout prior to service. The Veteran is not competent to provide a medical diagnosis, although he is competent to report a diagnosis told to him by a medical professional. In the absence of better evidence as to whether the Veteran had gout before entering active service in 2003, there is not clear and unmistakable evidence that he did. Thus, the presumption of soundness is not rebutted, and he is presumed to have been free of gout at entrance into service. The next question is whether the Veteran incurred gout during his 2003 to 2006 service. In 1986, he indicated that he had at some point been on medication and a diet to address gout manifested by joint pain. During the 2003 to 2006 service, he had treatment at various times for pain in his right knee, left knee, and low back. There is no evidence that any clinician who treated the Veteran during service found evidence of gout, or attributed any joint symptoms to gout. More than a year after separation from service, the Veteran reported that a non-VA clinician prescribed medication for gout, and in 2010 the VA examiner stated that x-ray findings in the right wrist could be consistent with gout. That examiner found that the Veteran's gout did not increase in service, and that it was less likely than not that his gout was incurred or aggravated by service. The Board considers it significant that there was no finding of gout during service, and affords significant evidentiary weight to the examining physician's opinions. The Board thus concludes that the preponderance of the evidence indicates that the Veteran did not incur gout during service. As his gout was not incurred or aggravated in service, service connection is denied. The Veteran has himself alleged that he first manifested a right knee disorder and gout during service or within a year thereafter. The Board recognizes that the Veteran is competent to testify regarding such observable symptomatology as joint pain and other observable symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Board does not, however, find such assertions of a worsening of his chronic joint pain in service to be credible. Specifically, the Veteran denied any history of a right knee disorder or gout at the time he returned to active service, despite the fact that he admitted such a history within other medical documents. His assertions of onset of his joint pain symptomatology during his 2003-06 period of active service are therefore not credible. Respiratory Disorder including Asthma The Veteran essentially contends that he has a respiratory disorder, which he describes as asthma, that was aggravated during or began during his 2003 to 2006 period of active service. On the report of the May 1974 examination of the Veteran for entrance into his first period of active service, the examiner checked normal for the condition of the nose, sinuses, lungs, and chest. In September and October 1974, the Veteran was seen with swollen tonsils, and treated with an antibiotic. In reserve service, the Veteran had outpatient treatment in July 1977 for sore throat, cough, and nasal congestion. He was seen in June 1978 for sore throat, sneezing, runny nose, and sore joints. In June 2002, the Veteran sought private medical treatment for a few months history of coughing spells, chest tightness, shortness of breath, dyspnea on exertion, and sporadic wheezing. He indicated that he had been told he had asthma. The treating physician noted decreased breath sounds. The Veteran underwent pulmonary function testing (PFT), which showed small airway dysfunction markedly improved after the use of a bronchodilator. The PFT results showed a restrictive pattern consistent with mild restrictive disease. The physician's impression was of hyperreactive airway. The physician also found evidence of gastroesophageal reflux disease (GERD) and rhinosinusitis. The physician treated the Veteran with a bronchodilator medication, a GERD medication, and an antibiotic. On follow-up three weeks later, the physician found the Veteran improved, with a good response to treatment. The physician found that the Veteran was doing well in August 2002. In December 2002, the Veteran had a cough following a cold. When the Veteran entered active service in January 2003, a medical assessment report was completed. The Veteran indicated that he had been treated for asthma bronchitis. The Veteran's private physician prescribed refill of the bronchodilator prescription in April 2003, and an increase in that medication in May 2003. In June 2003, the Veteran had treatment in service for control of hypertension, and the reported history included the bronchodilator medication, described as used for allergies or asthma. The Veteran indicated that he had no shortness of breath at that time. In private treatment in October 2003, the Veteran was found to have mild congestion related to a viral syndrome. The physician continued his diagnoses of hyperreactive airway, rhinitis, and GERD. In private treatment in January 2004, the Veteran had a cough with yellowish phlegm and chest tightness. The physician prescribed an antibiotic. In February 2005, the Veteran received treatment for uncontrolled blood pressure. The treatment notes include notations of a history of seasonal asthma and use of a bronchodilator medication. The treating clinician noted that the Veteran had a cough and fatigue. When the Veteran enrolled for care at a VA facility in August 2007, the history recorded included allergic asthma. At that time, the Veteran's breath sounds were normal. In treatment records from 2007 and 2008, lists of the Veteran's conditions include asthma described as stable and controlled. Lists of the Veteran's medications do not include any for respiratory issues. In a June 2008 statement, the Veteran asserted that he did not have problems with asthma when he entered active service in 2003, and that he received treatment for asthma during his 2003 to 2006 service period. The Veteran had a VA respiratory examination in April 2010. The examining physician reported having reviewed the Veteran's claims file. The examiner found that the claims file showed no evidence of bronchial asthma exacerbation or treatment between 2003 and 2006. The examiner noted that there was asthma treatment as per history. The Veteran reported that he was diagnosed with asthma in 1999 after a respiratory infection. He indicated that he had been treated for asthma ever since. He stated that during his 2003 to 2006 service he had exacerbation of asthma due to dust exposure in training on a rifle range. He stated that he had bronchial medication, and that in recent years he had an asthma attack about once a year. The examiner listed a diagnosis of bronchial asthma. The examiner expressed the opinion that the Veteran's bronchial asthma was not caused by events during his 2003 to 2006 service, and did not become aggravated during that service period. In April 2010, the Veteran underwent a sleep study at a private facility. The evaluating physician diagnosed severe obstructive sleep apnea. In the March 2012 remand, the Board found that the report of the April 2010 respiratory examination did not provide a rationale for the examiner's opinion, and did not address whether the Veteran's bronchial asthma existed prior to his 2006 to 2009 active service. The Board instructed that the claims file be returned to the examiner, and that the examiner provide opinions addressing remaining questions relevant to the claim. In March 2012, the physician who examined the Veteran in April 2010 reported that he had reviewed the evidence, and stated that there is no evidence of a diagnosis of bronchial asthma prior to active service or during the Veteran's service. The physician stated that bronchial asthma is a distinct diagnosable condition that cannot be diagnosed based on mere speculation. The examiner expressed the opinion that, based on the information in the claims folder, the Veteran had no history or aggravation of his actual diagnosis of bronchial asthma. The Veteran has described his respiratory disorder as bronchial asthma. Medical records show that label only as history reported by the Veteran, and not as a diagnosis by a treating physician. The VA examining physician ultimately concluded that the Veteran has not been diagnosed with and does not have bronchial asthma. The Board finds the physician's conclusion persuasive and accepts that the Veteran has not had bronchial asthma specifically. There is evidence, however, of the Veteran having respiratory problems. In 2002, before his 2003 to 2006 service, he saw a physician to address respiratory symptoms. Based on history, examination, and PFT results, the physician concluded that the Veteran had a condition described as hyperreactive airway. The physician prescribed bronchodilator medication, and continued to prescribe that medication during the Veteran's 2003 to 2006 service period. Those medical records show that the Veteran had a respiratory problem before that service period. The Veteran reported his respiratory treatment when he was medically assessed at entrance into active service in January 2003. Through that assessment, it was noted that the Veteran had a respiratory disorder when he entered that period of service. Therefore it is not presumed that he was in sound respiratory condition when he entered service. The hyperreactive airway that the private physician was treating was a preexisting disease. The preexisting hyperreactive airway will be considered aggravated by service if there was an increase in disability during service. Medical records provide evidence regarding the Veteran's respiratory condition before, during, and after the 2003 to 2006 service period. Before service, he had respiratory symptoms that responded well to medication. After he entered active service in 2003, the private physician continued the bronchodilator prescription, which suggests that the Veteran had some ongoing symptoms. The Veteran told service physicians of his history of a respiratory condition, which he described as asthma, and his use of medication. The records from 2003 to 2006 do not show, however, that the Veteran had more frequent or severe symptoms during service than he had after service, nor that the underlying condition worsened. After the 2003 to 2006 service period, the Veteran continued to report the history of respiratory symptoms and treatment, but treatment and examination records do not show that the underlying condition has been worse than it was before that service period. The preponderance of the evidence indicates that the Veteran's preexisting hyperreactive airway did not increase in disability during his 2003 to 2006 service. As the disorder was not incurred or aggravated in service, the Board denies service connection for the disorder. The Veteran has himself alleged that he first manifested a respiratory disorder during service or within a year thereafter. The Board recognizes that the Veteran is competent to testify regarding such observable symptomatology as shortness of breath and other observable symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Board does not, however, find such assertions of a respiratory disorder with onset in service to be credible. Specifically, in subsequent statements to VA, the Veteran denied any history of a respiratory disorder at the time he returned to active service, despite the fact that he admitted such a history at the time he was examined for active duty service. His assertions of onset of his respiratory symptomatology during his 2003-06 period of active service are therefore not credible. ORDER Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for gout is denied. Entitlement to service connection for a respiratory disorder, to include hyperreactive airway and bronchial asthma, is denied. ____________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs