Citation Nr: 1316044 Decision Date: 05/15/13 Archive Date: 05/29/13 DOCKET NO. 09-17 073 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for asthma. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from June 6, 1969, to July 15, 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. Most recently, the Board remanded this claim in July 2012 for further development. The file has now been returned to the Board for further consideration. The Veteran was scheduled to appear before the Board at the RO in North Little Rock, Arkansas, on February 22, 2010. However, by a February 2010 statement, the Veteran requested that his Board hearing be rescheduled. In a November 2010 statement, the Veteran's representative indicated that the Veteran was unable to attend a Board hearing and requested that his case be sent to the Board for adjudication. As such, the Veteran's request for a hearing, made at the time of his May 2009 Substantive Appeal, is deemed withdrawn. See 38 C.F.R. § 20.702(c)(e) (2012). FINDING OF FACT Asthma was noted on entry into active service, and was not permanently aggravated beyond the natural progression of the disease during service. CONCLUSION OF LAW Asthma was not aggravated during active service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). An RO letter dated in May 2008, sent prior to the initial adjudication of his claim in October 2008, informed the Veteran of all three elements required by 38 C.F.R. § 3.159(b), as well as those elements required by Dingess. VA also has a duty to assist a claimant in obtaining evidence to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. This duty includes assisting the Veteran in the procurement of service records, other pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the RO has obtained the Veteran's service treatment records, and all identified, authorized, and available private treatment records. The Veteran has not identified any additional records that VA failed to obtain. In accordance with the duty to assist, a VA examination was conducted in October 2008, and additional VA opinions were submitted in August 2011 and September 2012. The examiner, specifically, the examiner who rendered the most probative VA opinion in September 2012, noted that the claims folder was reviewed, considered the Veteran's history, reviewed the results of appropriate tests, and provided a well-reasoned opinion. Therefore, as the examination provided by VA was accurate, descriptive, and based on the complete medical record, including the Veteran's lay assertions, VA has fulfilled any duty to provide a thorough and contemporaneous medical examination. The duties to notify and assist have been satisfied as there is no reasonable possibility that any further assistance to the Veteran by VA would serve any useful purpose. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); Canlas v. Nicholson, 21 Vet. App. 312 (2007); Forcier v. Nicholson, 19 Vet. App. 414 (2006); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that there is no basis for a remand when no benefit would flow to the Veteran). Therefore, because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Additionally, the Board finds there has been substantial compliance with its July 2012 remand directives. The Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) The record indicates that the AMC obtained a sufficient VA medical opinion in September 2012 and issued a Supplemental Statement of the Case in December 2012. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Therefore, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2012). Service Connection The Veteran asserts entitlement to service connection for asthma on the basis that his pre-existing asthma was aggravated during active service. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). When a Veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury. In order to establish service connection for a claimed disorder, the following must be shown: (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. 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. See 38 C.F.R. § 3.303(d). A Veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Only such conditions as are recorded in examination reports are considered as noted. 38 C.F.R. § 3.304(b). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation is a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. In this regard, a finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. See 38 C.F.R. § 3.306(a); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 3.102. The Veteran's October 1968 pre-induction examination report reflects that a clinical evaluation of the lungs and chest were normal. In the notes (#73), it was reported that the Veteran had asthma and never had medical attention. In the summary of defects and diagnoses (#74), it was noted that he had asthma by personal history only and was told to go to the doctor when he has asthma and that he gets better. The Veteran reported a positive history that he previously had or currently experienced problems with asthma, shortness of breath, and pain or pressure in the chest. In the physician's summary and elaboration of all pertinent data (#39), it was noted that the Veteran had asthma since birth which had not been treated since the age of four. His apparent symptoms included shortness of breath, and pressure in the chest, wheezing, and congestion. Stamps on the April 1968 pre-induction examination report reflect that it was reviewed in April, May, and June 1969 and that no additional defects were discovered and that he was fit for military service. Given the numerous notations of asthma on the April 1968 pre-induction examination report (reviewed in April, May and June 1969), the Veteran is not presumed sound. See Items #39 (Physician's Summary), #73 (Notes), #74 (Summary of Defects). Although the nature of the Veteran's asthma treatment prior to service is inconsistent, the onset of the disease prior to service, in childhood, is entirely consistent. (As will be discussed, the Veteran has regularly reported having asthma since childhood.) Thus, the remaining inquiry is whether the Veteran's pre-existing asthma underwent an increase in severity and was aggravated beyond the natural progress of the disease by his active service. The Veteran's service treatment records starting on June 23, 1969, just 17 days after his June 6, 1969, entry onto active duty, first document his in-service complaints and treatment for shortness of breath and wheezing diagnosed as asthma. The Veteran presented with similar symptoms several times thereafter over the next month, and went to the emergency room due to asthma in early July 1969. A July 1969 Medical Board report shows that the Veteran was found to have asthma with bronchitis, which had been documented clinically. The Medical Board concluded that the Veteran's asthma existed prior to service and was not aggravated by active duty. However, this finding in itself is not enough to establish a lack of aggravation. Horn v. Shinseki, 25 Vet. App. 231, 238 (2012) (holding that the conclusory finding in a medical examination board report was not sufficient to rebut the aggravation prong in the presumption of soundness). It was noted that the Veteran had been allowed to enlist because he did not present documented evidence of asthma at the time. The Veteran's June 1969 separation examination reflects that the Veteran's lungs and chest were found to be abnormal due to documented asthma with bronchitis. The Veteran, at the time of his April 2008 claim, asserted that he had been treated for asthma by his private physician since 1949. The private physician submitted the Veteran's private treatment records, however, the earliest record is dated in 1993, at which time the Veteran presented status-post hospitalization for one week for asthmatic symptoms. VA treatment records dated in April 2008 indicate that the Veteran presented with a history of lifelong asthma. On VA examination in October 2008, the Veteran reported the onset of asthma in 1969, and reported asthma since birth with worsening in service with bouts of asthmatic bronchitis. He reported that the course since that time was stable, and such was treated with intermittent inhaled bronchodilator. He reported hospitalization in 1993 for asthma and in 1994 for pneumonia. Pulmonary function tests were conducted, revealing moderate obstructive lung defect. Subsequent to review of the claims file, the Veteran was diagnosed with obstructive respiratory asthma, from birth. The examiner reported that she could not resolve the issue of whether the Veteran's asthma was aggravated by his active service or whether service permanently worsened his asthma or bronchitis with reactive airway disease without resorting to mere speculation. She reported that the Veteran has a history of asthma and that his obesity and history of smoking, until five years prior, added to his shortness of breath. As the VA examiner, in October 2008, was not able to provide the required medical opinion, the Board, in its March 2011 remand, sought an additional VA opinion. In August 2011, a VA pulmonologist reviewed the claims file and submitted an opinion. The examiner noted that the Veteran was treated during service for asthma, and had reported asthma since age four, without treatment. She noted the Veteran's post-service recurrent asthmatic episodes and treatment for bronchitis and reactive airway disease by his private physician. She noted the Veteran's October 2008 pulmonary function test results, as well as his 66-pack year smoking history until 2003. She opined that given that asthma is usually considered to be a reversible obstructive defect, and the Veteran has persistent obstructive findings, the pulmonary functions tests do confirm that he has abnormal lung function. However, she concluded that it was not likely that the Veteran's present respiratory problems are related to his active service or aggravated by such. The Board, in its July 2012 remand, found that the opinion rendered in August 2011 was not entirely clear and lacked sufficient rationale. The Board thus sought an additional VA opinion. In September 2012, the examiner who provided the August 2011 opinion supplemented the record with an additional opinion. She reviewed the claims file and again provided an accurate recitation of the Veteran's in-service and post-service history, including the fact that he was medically separated from service for his asthma and the results of the October 2008 pulmonary function testing. She opined that she did not believe the Veteran's present respiratory problems to be related to his service, including long-term aggravation. She reasoned that exertion during basic training caused an exacerbation, or a temporary flare-up of symptoms, and that he acutely needed medical attention. However, she reported, such would be temporary flare-up of symptoms, not a change in the natural progression. She noted that patients with asthma will have a natural progression of the disease, and most adults with asthma continue to have to deal with symptoms of the disease their entire life. The VA examiner's September 2012 opinion that the Veteran's asthma, his present respiratory problems, was not aggravated beyond the natural progression of the disease during active service is probative evidence in the present appeal. She provided reasoning for her opinion and reviewed the claims file and the Veteran's medical history. See Nieves-Rodriguez v. Peake, 22 Vet App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). There is thus no basis upon which to further question this opinion. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Veteran is competent to report experiencing asthmatic symptoms during service and after service, and there is no evidence that he is not credible. He is not, however, competent to offer evidence that his asthma underwent an increase in severity during service, or was aggravated during service; as such assessments are not simple in nature. See Jandreau; see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the Veteran is not competent to provide evidence as to more complex medical questions). There is no evidence that the Veteran has the skills, knowledge, or expertise to determine whether his asthma has progressed along the natural course of the disease or whether his in-service asthmatic attacks represent a permanent aggravation of his disease. In sum, the most probative evidence, the September 2012 VA opinion, demonstrates that the Veteran's pre-existing asthma was not aggravated during active service beyond that natural progression of the disease, in that there was no chronic worsening of the underlying condition and only a temporary flare-up of symptoms. As the preponderance of the evidence is against the claim for service connection for asthma, the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for asthma is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs