Citation Nr: 1313859 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 07-28 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a respiratory disorder, to include asthma and shortness of breath. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran served on active duty from June 1988 to August 1988, from July 1990 to August 1990, and from November 1990 to July 1991. He also had reserve service of unverified types and dates. He separated from the Reserves in 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the RO in Jackson, Mississippi. The appeal was Remanded by the Board in March 2011 and in September 2012. The issue on appeal is recharacterized as listed on the title page of this decision to more accurately reflect the claim before the Board. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). FINDINGS OF FACT 1. The Veteran's asthma clearly and unmistakably pre-existed service, although it was not symptomatic and was not noted when the Veteran entered service. 2. The Veteran's pre-existing asthma was reactivated during his active service and has continuously remained symptomatic since service. 3. The October 2012 medical opinion establishes that it is not medically possible to provide clear and unmistakable evidence that the Veteran's asthma would have been reactivated absent his service. 4. The medical evidence establishes that the Veteran's complaints of shortness of breath are a manifestation of asthma and are not a separate disorder or attributable to any disorder other than asthma. CONCLUSION OF LAW The criteria are met to presume, under the provisions of 38 U.S.C.A. § 1111, that the Veteran's asthma, to include shortness of breath, was aggravated in service. 38 U.S.C.A. §§ 1110, 1111, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants the claim for service connection for asthma, to include shortness of breath. In view of the Board's decision to grant the Veteran's claim, no further discussion of VA's duties to notify and assist with regard to that claim is necessary, since further action to address the duty to notify or assist the Veteran would not be in the Veteran's interest. The RO will be responsible for addressing any notice defect with respect to the rating and effective date elements when effectuating the award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Applicable Law Under applicable law, service connection is granted if the evidence establishes that coincident with his service, the Veteran incurred a disease or injury, or had a preexisting injury aggravated, in the line of duty of his active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for certain chronic diseases when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Asthma is not among the diseases defined as chronic for VA purposes, and the provisions for service connection on this basis require no further discussion in this decision. 38 U.S.C.A. § 1101. Service connection can also be found for any disease diagnosed after discharge, if all the evidence establishes it was incurred in service. 38 C.F.R. § 3.303 provides two ways to establish service connection. Service connection under § 3.303(a) is satisfied when a three-element test is met. The evidence must establish that: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service (the so-called "nexus" requirement). Subsection (a) also refers to "each disabling condition...for which [a Veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record." The second way to establish service connection is set forth in § 3.303(b). The Federal Circuit found that, unlike subsection (a), which is not limited to any specific condition, subsection (b) is restricted to chronic diseases. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Further discussion of service connection for a chronic disease is not required in this case, since asthma is not defined for VA purposes as a disorder which is defined as chronic. A Veteran shall be taken to have been in sound condition when examined, accepted and enrolled into service, except as to defects, infirmities or disorders noted at the time of the examination, acceptance and enrollment, or when clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); see also VAOPGCPREC 3-2003. "Aggravation" is defined, for purposes of Veterans' benefits, as a permanent worsening of the pre-existing or underlying condition, as contrasted to temporary or intermittent flare-ups of symptoms which resolve with return to the previous baseline level of disability. See Davis v Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Analysis The Veteran's examinations for purpose of induction in April 1988 and his examination for discharge to a reserve unit in July 1998 disclose that no respiratory disorder was noted. The Veteran reentered service in July 1990, and less than two weeks later, required evaluation for respiratory symptoms which required essentially continuous treatment until his release from active duty in late August 1990. A diagnosis of bronchitis was noted on separation examination in August 1990. The Veteran again required treatment for respiratory problems when he re-entered service in November 1990. No diagnosis of a respiratory disorder was noted on the Veteran's April 1991 physical examination report, but numerous entries on the report of medical history detail the Veteran's treatment for allergies, rhinitis, bronchitis, asthma, and other respiratory disorders during his active service. In 2006, the Veteran sought service connection for asthma and shortness of breath, among other disorders. Service connection was denied for asthma on the basis that exacerbation of the Veteran's symptoms in 1990 during his active service was temporary. The examiner who conducted May 2008 VA examination noted the current diagnosis of asthma with significant reversible airway disease. Reference was also made to the Veteran's history of VA treatment soon after his separation from active service. However, the examiner ultimately concluded that it was more likely than not that the Veteran's currently asthma was unrelated to his service. He explained that the asthma would have recurred even if he had not had military service. He added that the Veteran's asthma was exacerbated by his smoking. An April 2011 VA examination report indicated, in pertinent part, that the Veteran's shortness of breath was attributed to his asthma and not an undiagnosed illness and was not related to a medically unexplained chronic multi-symptom illness. The Veteran underwent another VA examination in October 2012. At the outset, the examiner determined that there was clear and unmistakable evidence that the Veteran's asthma preexisted his active military service. He explained that the Veteran likely had childhood asthma that been asymptomatic prior to his entering service. He said some people who have childhood asthma have reactivation in adulthood and some do not. The examiner also observed that the Veteran began to have problems with his asthma when he was deployed to the Middle East during his active service. He described the asthma as being in remission prior to being deployed, but that there was some suggestion that the Veteran's exposure to dust and air in the Middle East reactivated his asthma. However, he emphasized that there was no way to know whether or not the Veteran's childhood asthma would have been reactivated regardless of his being deployed (i.e., natural progression). He said formulating such an opinion was impossible without resorting to mere speculation. On review of the foregoing, and taken in its totality, the Board initially finds that the presumption of soundness applies in the present case. Asthma was not present at his service enlistment. The mere notation that the Veteran had preexisting asthma, to the extent such was made, does not suffice. Nevertheless, as indicated above, the VA examiner considered the Veteran's reported history and medical record and determined that there is Veteran's asthma clearly and unmistakably preexisted service. There is no competent medical opinion that refutes this finding. Indeed, the Board affords significant import to a 2002 VA treatment note wherein the Veteran gave a history of childhood asthma. This report of history was provided four years prior to his date of claim for service connection and was in connection with his pursuit of medical care. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Having rebutted the presumption of soundness by determining that there was clear and unmistakable evidence that the Veteran's asthma preexisted service, the Board turns next to address the second prong of the presumption of soundness analysis - the presumption of aggravation. In Horn v. Shinseki, 25 Vet. App. 231, 235 (2012), the Court found: Once the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness . . . the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. The 2012 VA opinion establishes that VA has not established by clear and unmistakable evidence that the "reactivation" of the Veteran's pre-existing asthma during his service is attributable to natural progression of pre-existing asthma. Rather, the VA examiner clearly conveyed that the Veteran's asthma had been quiescent prior to his enlistment and that it had reactivated after he deployed to the Middle East. He even intimated that the dust and air of the Middle East could have been a catalyst as much as the Veteran's history of smoking, which appears to have coincided with onset of his asthma. See July 2004 VA treatment note indicating that the Veteran started smoking 15 years earlier. The result was that the examiner could not provide an opinion without resorting to mere speculation. Put another way, the examiner was unable to provide clear and unmistakable (undebatable) evidence that the Veteran's asthma was not aggravated by his active service. Such is ultimately a favorable finding - the Veteran's pre-existing asthma was aggravated by his active service. Further, the preponderance of the evidence establishes that the Veteran's complaints of shortness of breath are attributable to his asthma, so that a favorable determination as to the claim for service connection for asthma includes shortness of breath. As VA has not met the burden of proof which would be required to deny the claim, the claim for service connection for asthma, to include shortness of breath, must be granted. ORDER The appeal for service connection for asthma is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs