Citation Nr: 1306305 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 09-15 298A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for asthma. ATTORNEY FOR THE BOARD James Alsup, Counsel INTRODUCTION The Veteran served on active duty from May 1999 to August 2003. Service in Southwest Asia is evidenced in the record. This matter comes before the Board of Veterans Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that denied the Veteran's claim for service connection for asthma. The Veteran disagreed and perfected an appeal. In decisions dated August 2011 and September 2012, the Board remanded the Veteran's claim for further development and for a local hearing to be scheduled. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND 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 (West 2002); 38 C.F.R. § 3.303 (2012). In essence, the record in this case includes evidence of a diagnosis of current asthma and evidence of diagnoses of restrictive airway disease and bronchitis during service. A November 2008 VA examiner reviewed the Veteran's service treatment records, noted no diagnosis of asthma during service and concluded that it was less likely as not that the Veteran's current asthma was related to service. The Board remanded the Veteran's claims on two prior occasions and the Board reluctantly remands the claim again. The crux of this claim is whether the Veteran's current asthma is related to the condition documented during service which the Veteran maintains was misdiagnosed by military service providers. He contends that he has had the same symptoms since service and that they have gradually worsened since service. See February 2009 statement. The August 2011 remand directed that an examination be provided regarding whether the Veteran had pre-existing asthma upon entry into active duty if additional treatment records from providers who treated the Veteran during childhood showed that the Veteran had asthma as a child. No treatment records were obtained because they had been destroyed by the private physician and private hospital where the Veteran received treatment. Thus, no records were received and no examination was provided. After the November 2008 VA examination, the Veteran submitted an August 2011 statement from his mother to the effect that the Veteran was diagnosed and treated on several occasions for asthma during his childhood. She also stated that the Veteran was treated at a hospital emergency room for a flare up when he was younger, but that the condition "cleared up" by the time that the Veteran reached late-childhood or early teenage years. The Board observes that a lay witness is competent to report on the onset and continuity of symptoms that they are competent to observe. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board further observes that a lay witness can provide competent and sufficient evidence of a diagnosis or to establish etiology if the layperson is reporting a contemporaneous medical diagnosis or if the lay witness describes symptoms that later support a diagnosis by a medical professional. See Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009). With regard to a pre-existing asthma condition, the Board observes that the Veteran's mother is competent to report what she was told by the Veteran's physician and she is competent to report the asthma she observed the Veteran manifest when he was a child. Such evidence should be developed and considered by a medical examiner who should provide an opinion whether it is clear and unmistakable that the Veteran's asthma pre-existed service. If such a finding is made, then the examiner should provide an opinion whether there is clear and unmistakable evidence that the asthma was NOT permanently aggravated beyond the natural progress of the disorder during the Veteran's service. Finally, the Board observes that the Veteran's service treatment records indicate that he used tobacco during service and notes that 38 C.F.R. § 3.300 (2012) provides that a disability will not be considered service-connected on the basis that it resulted from injury or disease attributable to a veteran's use of tobacco during service. Thus, the Board also remands the claim for an opinion regarding the impact, if any, caused by the Veteran's use of tobacco during service on his currently diagnosed asthma disorder. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he can submit further witness statements or other evidence that describe the nature and extent of any asthma condition he manifested as a child. He should also be notified that in lieu of medical treatment records he can submit statements from healthcare providers or others who observed his childhood asthma. 2. Provide the Veteran's VA claims folder to an appropriate medical examiner skilled in the diagnosis and treatment of respiratory disorders, including asthma. The examiner should review the claims folder and indicate in the written report that it has been reviewed. If deemed necessary to provide the opinions requested, an examination of the Veteran should be conducted. The examiner should provide an opinion whether there is clear and unmistakable evidence (highest degree of medical certainty) that the Veteran's asthma pre-existed his active duty service. If the examiner determines that asthma pre-existed service, the examiner should provide an opinion whether there is clear and unmistakable evidence that the Veteran's pre-existing asthma was NOT aggravated (i.e. permanently aggravated) beyond the natural progress of the disorder during his active duty service. If it is determined that the Veteran's pre-existing asthma was permanently aggravated beyond the natural progress of the disorder during his active duty service, the examiner should also provide an opinion as to whether such aggravation would not have occurred but for the Veteran's use of tobacco products during service. In other words, is the Veteran's current asthma disorder attributable to his use of tobacco products during service? The examiner should discuss the evidence underlying any opinion provided and should explain the basis for the opinion. 3. Complete the foregoing development and any other development deemed necessary and then readjudicate the Veteran's claim. If the benefit sought on appeal is denied, then provide the Veteran with a supplemental statement of the case and, if otherwise in order, return the Veteran's VA claims folder to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).