Citation Nr: 1316265	
Decision Date: 05/17/13    Archive Date: 05/29/13

DOCKET NO.  11-17 526	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUE

Entitlement to service connection for bronchial asthma.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

P. Olson, Counsel



INTRODUCTION

The Veteran had active military service from October 1952 to January 1954.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.

Initially, the Board notes that the RO characterized this issue in September 2009 as an application to reopen a previously denied claim for service connection, due to the fact that this claim was previously denied in a final March 1954 rating decision.  The Board notes that since the March 1954 rating decision, service records have been associated with the claims file.  Pursuant to 38 C.F.R. § 3.156(c) (2012), the Board finds that, due to the newly submitted service records, this issue must be reconsidered on a de novo basis, as opposed to determining whether new and material evidence has been received to reopen previously denied claims.  38 C.F.R. § 3.156(c) (2012).  Thus, the issue has been characterized as a service connection claim and not as a request to reopen a previously-denied claim.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The competent medical evidence of record, both for and against a finding that the Veteran's asthma which pre-existed service was permanently aggravated by service is at the very least in a state of equipoise.  


CONCLUSION OF LAW

Resolving all doubt in favor of the Veteran, bronchial asthma was aggravated by active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012).
REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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.  

With respect to service connection claims, the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 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.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

In light of the favorable outcome of this appeal, any perceived lack of notice or development under the VCAA should not be considered prejudicial.  


Service Connection

The Veteran contends that his pre-existing asthma was aggravated beyond its normal progression by military service.

Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  

Service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology.  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.  Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b).  

To prevail on the issue of service connection there must be evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).  

In this case, the evidence unquestionably indicates that the Veteran suffered asthma attacks during service.  

Service treatment records indicate that on June 15, 1953, the Veteran presented to the 151 Engineering Battalion Aid Station and was admitted to the 121 Evacuation Hospital with an impression of perennial asthma.   

On August 26, 1953, the Veteran was admitted to the 121 Evacuation Hospital due to acute respiratory distress.  The Veteran provided a history of bronchial asthma all his life.  After physical examination, the impression was acute and chronic bronchial asthma.  The next day, a final diagnosis of perennial asthma with unknown allergen was rendered, and on August 28, 1953, the Veteran was scheduled to be evacuated to a hospital in Japan for further study and disposition.  

An abbreviated clinical record in August 1953 notes that the Veteran reported asthma most of his life -- spring and fall, that he had taken shots with benefit, and that he was allergic to dust, grasses, trees, etc.  The clinical record noted that the Veteran was okay until approximately June 1, 1953 when he began to have asthma symptoms most of the time and was hospitalized twice.  The Veteran also reported a history of hay fever and was bothered by watery eyes and sneezing and had some relief of hay fever with antihistamines.  

An abbreviated clinical record in August and September 1953 notes that the Veteran was admitted to Osaka General Hospital in Japan on August 30, 1953.  The clinical record notes that the Veteran received desensitization shots for foods, pollens, weeds, trees, etc., from the age of 17 for about six months and was able to get by with just symptomatic medical treated as needed.  The clinical record notes that initially in Korea, he did all right until June 10, 1953, when the asthma came on all at once and he kept getting worse in that the attacks occurred more often and he required shots about every day for a while.  The clinical record also notes that the Veteran went to the hospital on June 15, 1953, and was discharged and returned August 10, 1953, and was then evacuated.  The Veteran reported that his asthma was worse in spring and fall when damp and foggy.  It was also noted that stopping smoking helped his asthma but that at that time, he was smoking about a pack of Camels per day.  After physical examination, an impression of perennial asthma was rendered.  

On September 11, 1953, it was noted that the Veteran required nightly injections of adrenalin in addition to the routine treatment for asthma of ephedrine, phenobarbital, etc. and aminophylline suppositories.  Doctor's Progress Notes in September 1953 indicate the Veteran continued to have nightly episodes of dyspnea requiring adrenalin and that he was "on about everything we can give him except for medication which had been ordered from Tokyo but had not yet arrived.  On September 24, 1953, the Veteran did not require adrenalin, his chest sounds were noted to be clearer, and the physician indicated that the reason for the sudden improvement in the Veteran's condition was unknown.  On September 26, 1953, however, the Veteran was very dyspneic and he was wheezing markedly, between 3:00 and 8:00 a.m., the Veteran had aqueous adrenalin three times and adrenalin in oil twice.  At 10:00 a.m., he was given aminophylline IV with good relief temporarily.  At 1:00 p.m., he was again markedly dyspneic, and even during periods of partial relief, the Veteran had much wheezing and prolongation of expiration.  The provider noted that despite measures, the Veteran continued to be in severe distress, using all the accessory muscles of respiration with evidence of tremendous bronchospasm.  He was started on cortisone.  By 4:00 p.m. on September 27, 1953, there had been steady improvement in the Veteran's condition since that morning.  The provider noted that although the Veteran was still in moderate respiratory distress, and his chest was still full of wheezes with marked prolongation of expiration, he no longer appeared critically ill, and that status asthmaticus was definitely breaking up on hormone therapy.

The Final Summary in October 1953 notes that on September 27, 1953, the Veteran went into a state of status asthmaticus and became resistant to intravenous aminophylline.  He was placed on ACTH intramuscularly and intravenously and recovered but continued to have wheezes and dyspnea.  The Veteran was transferred to Osaka Army Hospital on October 1, 1953, and was maintained on cortisone every 12 hours.  X-ray at that time showed a mild generalized pulmonary emphysema; otherwise, the lung fields, cardiac silhouette, and bony thorax were within normal limits.  It was noted that for the first week or so after admission, the Veteran continued to be relatively asymptomatic and generally comfortable.  He was receiving cortisone and adrenalin in oil.  The amount of cortisone prescribed was reduced in an attempt to eventually discontinue the medication; but about nine days after admission, he began having mild attacks of dyspnea and wheezes necessitating subcutaneous adrenalin for relief.  The cortisone was resumed at 25 milligrams twice a day.  The provider noted that the Veteran was unable to be returned to duty and that as it seemed unlikely that he would be able to perform any protracted amount of duty in the armed services in the near future and in view of the fact that he had had asthma prior to his entry into the armed service, he was being evacuated to the United States for further disposition and for any further treatment.  

The Veteran was transferred to the United States on October 2, 1953 and was admitted to Madigan Army Hospital.  Doctor's Progress Notes indicate that amount of cortisone was slowly reduced but that due to some dyspnea and wheezing, he was put back on 25 milligrams of cortisone twice daily.  At the end of October 1953, the Veteran was noted to be in acute distress and that he had needed adrenalin and aminophylline in addition to the cortisone almost every night for the past month.  On November 8, 1953, it was noted that the Veteran became refractive, that isuprel sublingually did not work, that isuprel nebulized gave dramatic relief, and that he was having about two attacks per night but was free during the day.  

Consultation Report indicates that the Veteran underwent dermatology clinic consultation on November 9, 1953.  The Report dated November 9, 1953, notes, 

History does not reveal any real seasonal evidence in this case and it is quite questionable if pollens or other inhalants are playing any part in this problem.  ...  Scratch tests reveal ... + ... and really not clinically significant reactions to fungi and several grasses.  ...  Imp:  Bronchial asthma (not pollenotic).

A list of allergens from the Veteran's private physician in Oregon indicates 15 substances which caused the Veteran marked reactions and 25 substances which caused him mild reactions.

The service treatment records indicate that the Veteran went on leave from November 20, 1953, to December 5, 1953, and did fairly well.  On December 17, 1953, it was noted that the Veteran continued to have occasional bouts of asthma which responded to adrenalin in oil. 

The Report of Medical Examination on separation in December 1953 indicates that the Veteran's lungs and chest were evaluated as abnormal, and perennial asthma, allergen undetermined, was the abnormality described.

Disposition Board Proceedings dated December 29, 1953, indicates that after careful consideration of the clinical records, laboratory findings, and physical examination, the Board found that the Veteran had asthma, perennial, allergen undetermined, moderate which existed prior to service by many years and was permanently aggravated by active duty.  It was noted, 

The Medical Board recognizes that this patient has had frequent bouts of acute bronchial asthma prior to his entrance into the service but feels that the intensity and frequency of these episodes have increased while this individual has been on an active duty status and that his disease while in the Far East was quite marked and distressing requiring ACTH and cortisone for control of these symptoms.  The Medical Board is therefore of the opinion that this condition is LOD-Yes, by aggravation.

Report of Medical Examination dated in December 1953 notes that the Veteran's lungs and chest were abnormal with perennial asthma, allergen undetermined as the abnormality.  A Clinical Record Cover Sheet from Madigan Army Hospital indicates a diagnosis of asthma, perennial, allergen undetermined.  Line of Duty initially indicates, "Yes, by aggravation;"  however, "Yes, by aggravation" is marked out with two lines drawn through it and "No ETPS" is written above.  

In January 1954, the Veteran underwent Physical Evaluation Board proceedings which determined that the Veteran was physically unfit to perform the duties of his office, rank, or grade by reason of physical disability, asthma, bronchial perennial, allergen undetermined, attacks rather frequent, without emphysema.  It was also noted that the Veteran's asthma existed prior to service and was not permanently aggravated by military duty.  In rebuttal, the Veteran stated that it was true that he had an asthmatic condition upon entrance into military service but that he had become much worse and felt that his asthmatic condition had been severely aggravated by being in the service and being forced to live under extreme conditions both in basic training and in the Far East.  The Veteran stated that in his condition at that time, he could not hold a job that was in accord with his education or hold a job at any time in the foreseeable future requiring manual labor.

The Veteran was discharged from military service on January 30, 1954 by reason of physical disability.  

At the VA examination conducted in March 1954, the Veteran complained of periodic coughing and wheezing and being short of breath most of the time.  In addition, the Veteran reported attacks of dyspnea and wheezing with slight cough nearly every night relieved by ephedrine and isuprel.  The examiner noted that the Veteran was rather vague and evasive in his replies to questions concerning the severity and frequency of his attacks.  Physical examination demonstrated normal respiratory movement and normal lung excursion on deep inspiration, adequate and equal chest expansion, normal lung resonance to percussion, normal tactile and vocal fremitus, vesicular breath sounds on auscultation, and no rales or rhonchi heard either before or following exercise or with the Veteran in the recumbent position and with forced expiration.  The Veteran was diagnosed as having bronchial asthma from history.     

Private medical records indicate that in March 2000, the Veteran presented with a report of asthma for at least 65 years, the symptoms being perennial in nature and that "[h]e has been gradually getting worse over time."  After physical examination, the Veteran was diagnosed with severe persistent asthma with possible COPD.  

The Veteran underwent VA examination in May 2012.  The examiner noted that the Veteran's respiratory condition clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event or illness.  The examiner noted, 

There is no documentation that the episodes of severe asthma and allergic rhinitis continued in the years after service and no records to support this until 2000.  The veteran has not had any severe episodes in the last 5 years or more.  There has been a diagnosis of COPD since at least 2000 which is indicative of this veteran's smoking history.  He smoked from prior to service until the age of 76 with over 50 pack years.  Although I see enough evidence that working in the fields during service laying communications wires could have triggered nasal allergies, [t]here is no continuity of care to show that this level of allergies continued in the years following the service and his pulmonary records in C file start in 2000 at age 68.  With this veter[an]'s significant smoking history and PFT functions, I cannot state that his current condition is an aggravation of pre-existing asthma, solely aggravated beyond normal by allergies and 2 exacerbations in service.  There is only documentation of the normal progression of asthma and COPD from aging and long term smoking.

In December 2012, the Board referred the case for an advisory medical opinion.  In March 2013, a favorable opinion was provided by a physician with expertise in pulmonary, critical care, and internal medicine.  The physician wrote a lengthy and very detailed medical opinion.  The opinion included definitions of COPD and different types of asthma, the Veteran's case history, a thorough discussion regarding the central question of whether the Veteran's pre-existing asthma was aggravated beyond its normal progression during active duty.  The physician concluded,

It is my belief that there is clear and unmistakable evidence in both the medical record and in the patient's clinical course that his pre-service asthma was indeed aggravated beyond the normal pathophysiology expected for usual extrinsic asthma exacerbations by a prolonged and severe allergic disease event which occurred while the subject was in military service.  It was severe enough to necessitate protracted inpatient hospital care for nearly all of six and a half months, and ultimately could only be moderately controlled with exceptionally strong parenteral medications and he was discharged from military service because of it.  Subsequently he improved somewhat, but I do not believe it is only because of the removal of an allergen, but because his sinusitis ultimately also improved synchronously with his subsequent clinical course.

The severity of the patient's asthma ... was clearly extraordinary, and beyond the realm of expected exacerbations from only his pre-existing allergic asthma and allergic rhinitis.  It included a full-blown status asthmaticus attack, unrelated to allergen exposure that can be identified.  He was hospitalized when it occurred.  The entity causing this increased morbidity was due to new-onset and persistent chronic sinusitis, chronic tonsillitis, and perhaps other complicating respiratory diseases which went largely unrecognized, and were only partly controlled during his military service.

I believe his VA eligibility evaluators erred in denying his disability claim in 1954, in 2009, and again in 2011.  They fell victim to the vagaries introduced by the repeated use of the diagnostic term we no longer use because it is by nature misleading, and the records show his disease process actually included more than the listed diagnosis.  ...
A veteran will be 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.  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.

In this case, the Veteran's entrance examination dated in August 1952 did not note the presence of any respiratory disorder.  Although the Veteran reported a history of asthma, the examiner noted, "Asthma referred to is not true asthma according to symptoms - he had nasal and slight bronchial congestion only - due to excessive dust - not frequent - never required injections."  In addition, clinical evaluation of the Veteran's lungs and chest was normal.  There are, however, numerous notations in the Veteran's service treatment records which affirm the Veteran's history of asthma pre-existing his entrance into active service.  Thus, the Board must conclude that there is clear and unmistakable evidence of asthma which pre-existed service.

With respect to whether there is clear and unmistakable evidence that the Veteran's pre-existing asthma was not aggravated beyond its natural progression by military service, the Board notes that there is a difference of opinion among the medical professionals.  The most comprehensive opinions regarding whether the Veteran's asthma was aggravated by service are the December 1953 Medical Board's favorable opinion, the May 2012 VA examiner's unfavorable opinion, and the March 2013 favorable advisory medical opinion.  

It is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others.  Evans v. West, 12 Vet. App. 22, 30 (1998).  That responsibility is particularly onerous where medical opinions diverge. At the same time, the Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another.  Id.  However, a more detailed discussion of the specific opinions, credentials of the diagnosticians, and circumstances of opinions in this case would not clarify the matter.  It would merely highlight that there is not a clear, rational basis for the Board to prefer one opinion to another.  

Accordingly, the Board finds that the competent medical evidence of record, both for and against a finding that the Veteran's asthma which pre-existed service was permanently aggravated by service, is at the very least in a state of equipoise.  As such, reasonable doubt is resolved in favor of the Veteran.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for bronchial asthma is granted.


______________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs