Citation Nr: 1318212 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-37 122A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for asthma. 2. Entitlement to service connection for allergies. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1963 to September 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, in which the RO denied the claims currently on appeal. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issue of entitlement to service connection for allergies is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Asthma had its onset during service. CONCLUSION OF LAW Asthma was incurred in-service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). As the Board is granting the claim for service connection, the claim is substantiated, and there are no further VCAA duties. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the disease or injury existed before acceptance and enrollment and was not aggravated by service. 38 U.S.C.A. §§ 1111, 1137. In July 2003, VA's General Counsel issued a precedent opinion holding that in order to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must demonstrate by clear and unmistakable evidence both that the disease or injury in question existed prior to service and that it was not aggravated by service. See VAOPGCPREC 3-2003 (July 16, 2003), 69 Fed. Reg. 25178 (2004). The burden is a formidable one. Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). In determining whether there is clear and unmistakable evidence to rebut the presumption of soundness, all evidence of record must be considered, including post-service medical opinions. Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000). In May 1963, the Veteran underwent an enlistment examination. The resulting examination report indicated normal lungs and chest, sinuses, and nose, and did not note the existence of asthma. The Veteran denied a history of asthma in his May 1963 medical history report. Without a notation of asthma on the enlistment examination, the Veteran must be presumed to have been in sound condition in that regard upon entry into service. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (holding that where entrance examination records failed to note asthma at the time of induction, "asthma was not 'recorded in [an] examination report[]' within the meaning of [38 C.F.R.] § 3.304(b)"). That presumption can only be rebutted by clear and unmistakable evidence to the contrary. 38 C.F.R. § 3.304(b). Treatment records show that in March 1964, nearly a year after entry on active duty, the Veteran was diagnosed with bronchial asthma. In April 1964, the Veteran completed a Report of Medical History for purposes of his "initial flying" examination. No related examination report is of record. The Veteran reported a history of asthma, shortness of breath, and chest pain/pressure. In a "physician's summary" on the medical history, asthma was noted to have existed "since childhood." Symptoms were "usually noted following physical exertion." The physician who commented on the April 1964 Report of Medical History failed to provide any rationale for the opinion that asthma had been present since childhood. Further, despite the physician's statement, there is no evidence that the Veteran indicated he was diagnosed with asthma by a medical professional, or received treatment for asthma, prior to service. The Board looks to a similar note from July 1964, in which the Veteran's statements, rather than a physician's conclusions based on those statements are recorded: "[t]he patient states that he began having episodes of shortness of breath and wheezing at approximately the age of 7. The patient states that he presently has two or three episodes per week. They usually begin at night and last 30 to 40 minutes prior his going to sleep. The episodes are characterized by shortness of breath, wheezing, and a feeling of tightness across the anterior chest. The patient states that the symptoms are more severe during summer months." See Consultation Sheet, Physical Standards Branch, July 1964. The examiner's impression was mild bronchial asthma, existed prior to service. Thus, the only record of what the Veteran actually stated shows that he claimed to have had symptoms of wheezing and shortness of breath prior to service. There is no record that the Veteran reported that a medical professional had diagnosed him with asthma. That distinction is important. See Gahman v. West, 13 Vet. App. 148, 150 (1999) (holding that a history provided by a lay witness does not constitute competent medical evidence of a chronic pre-service condition, even though the appellant's account of his pre-service illnesses was recorded by medical examiners, where there was no accompanying evidence of pre-service diagnosis or treatment by a medical professional). The Veteran ultimately separated based on medical board findings that he had an asthma diagnosis that preexisted service and made him unfit for active duty. An August 1964 examination report noted mild bronchial asthma. According to an August 1964 Medical Board Report, the approximate onset of asthma was in 1953. Similar to the April 1964 physician's note, the conclusion that the Veteran had asthma prior to service must only be based on statements by the Veteran regarding the onset of his asthma, as there is no contemporaneous evidence of a pre-service diagnosis. Thus, the medical board determination is insufficient to rebut the presumption of soundness. Id. Also concerning the presumption of soundness, the Board observes that the Veteran stated in June 2008 that he did not have asthma prior to service, but that he has required treatment since service. Similarly, three of his brothers, all of whom knew him prior to his entry on active duty, submitted statements indicating that he did not have asthma before entering the Air Force. Therefore, without the Government showing clear and unmistakable evidence that the Veteran's asthma preexisted service, the presumption of soundness is not rebutted. 38 C.F.R. § 3.304(b). Presently, treatment reports show that the Veteran continues to require medical care for bronchial asthma, thus demonstrating a present disability. According to an August 1987 medical report, the Veteran's bronchial asthma was diagnosed in service and had continued since that time. Further, as noted above, records dating to the present appeal period demonstrate that the Veteran continued to receive medical treatment for asthma to the present. As such, there is adequate evidence of a nexus between the Veteran's in-service asthma diagnosis and the present disability. Thus, the Board finds that the Veteran has a current asthma disability that was first diagnosed in service; service connection is warranted. 38 C.F.R. § 3.303. ORDER Entitlement to service connection for asthma is granted. REMAND The issue of entitlement to service connection for allergies must be remanded for an examination and to obtain any outstanding records. Initially, it is clear that although the presumption of soundness attaches with respect to the Veteran's alleged allergies as no allergies were diagnosed at the May 1963 enlistment examination, clear and unmistakable evidence demonstrates that the allergy disorder preexisted service. 38 C.F.R. § 3.304(b). The Veteran, in fact, acceded this point, stating on his December 2007 VA Form 21-526 (i.e., his formal claim), that the allergy disability for which he claims entitlement to service connection began prior to his military service. That statement is consistent with the historical record. The Veteran identified a history of hay fever on the May 1963 Medical History Report accompanying his enlistment examination, and a physician at that time noted "mild occasional pollenitis, not disabling." In a September 1963 treatment note (three months after going on active duty), the Veteran informed the examiner that he had hay fever, and that he had not "been on any medication for a while." The Veteran had "sent home for his medicine (Benadryl)." Post-service treatment reports also indicate that the Veteran suffered from allergies prior to service. For example, the August 1987 medical report, referenced above, relates that the Veteran's "long history of allergic rhinitis which started as nasal congestion, sneezing and red itchy eyes in the spring and fall" began during his adolescence. Considering the Veteran's December 2007 acknowledgement of his disability's existence prior to service, the repeated references to a preexisting allergy during active duty, and the fact that there is no evidence to the contrary, the Board finds this medical report, although made many years after service, to be highly probative. See Harris, 203 F.3d at 1351 (holding that a post-service medical opinion based on statements made by the Veteran about the pre-service history of his condition may be sufficient to rebut the presumption of soundness despite a lack of contemporaneous clinical evidence of pre-service disability). The Board finds the Veteran's current statements that his disability predated service, his acknowledgment of hay fever prior to service made in conjunction with the present claim, the physician's note on his enlistment Report of Medical History noting pollenitis, the fact that he sent home for his allergy medication shortly after beginning active duty, and private medical records demonstrating a history of allergies since adolescence, constitute together clear and unmistakable evidence that the claimant's allergy disorder preexisted service. 38 C.F.R. § 3.304(b). The inquiry does not end there, however; VA must demonstrate by clear and unmistakable evidence that the disability was not aggravated during the Veteran's active duty service. See VAOPGCPREC 3-2003. The Veteran regularly received treatment for allergies during service, including treatment in June 1963, July 1963, September 1963 (three times), October 1963 (twice), and January 1964. Additionally, the Veteran received treatment for other respiratory symptoms, such as wheezing, bronchitis, upper respiratory infections, and headaches, though the record does not directly associate those symptoms with his allergies. Despite the Veteran's in-service treatment, it is unclear whether the Veteran's pre-service allergy disorder was aggravated during his active duty. Under applicable VA regulations, seasonal and other acute allergic manifestations subsiding on the absence of or removal of the allergen are generally to be regarded as acute diseases, healing without residuals. 38 C.F.R. § 3.380 (2012). Finally, the exact nature of any allergy is not apparent from the record. Therefore, an examination and opinion concerning the nature and etiology of any current allergy is necessary. The Board notes the requested opinion must attempt a comparative study addressing the Veteran's allergy symptoms at enlistment and subsequently, to determine if the disability permanently worsened during active duty. Id. It is imperative, however, for the examiner to understand that the question being presented for his or her consideration is not whether it is at least as likely as not that the disability permanently worsened. Rather, as this is a case in which the presumption of soundness attaches, the examiner must determine whether there is clear and unmistakable evidence that the disorder was not aggravated during active duty. It is apparent from the record that the Veteran receives his medical treatment outside of the VA system. As such, there may be additional records relevant to his claim for service connection, and VA should request that he provide any necessary releases to obtain those records. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide a completed release form (VA Form 21-4142) authorizing VA to request copies of any outstanding treatment records from any private medical providers who have treated him for his claimed condition. After the Veteran has signed the appropriate releases, those records not already associated with the claims file should be obtained and associated therewith. The RO/AMC must make at minimum two attempts to obtain the records. All attempts to procure any outstanding treatment records should be documented in the claims file. If records identified by the Veteran cannot be obtained, a notation to that effect should be included in the claims file and the Veteran and his representative should be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After any outstanding records are obtained, schedule the Veteran for an examination to determine the nature and etiology of any current allergy. The examiner should review the Veteran's claims file, this remand, and any relevant records in the Virtual VA electronic file. The ensuing examination report should include a notation that the examiner undertook such a review. The examiner should provide a complete examination to determine the nature and etiology of any diagnosed allergy. The examiner should provide a clear diagnosis of any allergy, and should differentiate this disability from any other disease or disability that causes similar symptoms. The examiner should be aware that the Veteran's allergy preexisted his active duty military service. Despite that fact, as this is a case in which the presumption of soundness applies, the examiner should then opine whether there is clear and unmistakable evidence that the Veteran's allergy was not aggravated during active duty service. In addressing the question presented, the examiner must attempt a comparative study addressing the Veteran's allergy symptoms at enlistment and subsequently, to determine if the disability permanently worsened during active duty. The examiner should observe that under applicable VA regulations, seasonal and other acute allergic manifestations subsiding on the absence of or removal of the allergen are generally to be regarded as acute diseases, healing without residuals. The examiner should express a full and complete rationale must be provided for all opinions expressed in the ensuing report. If any requested opinion cannot be provided without resort to speculation, the examiner should explain why no opinion can be reached. 3. After the development requested has been completed, the RO/AMC should review the examination reports to ensure that they are in complete compliance with the directives of this REMAND. The RO/AMC must ensure that the examiners documented their consideration of Virtual VA. If any report is deficient in any manner, the RO must implement corrective procedures at once. 4. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. Then, the RO/AMC should review the examination report and ensure that it complies fully with this remand. If the examination report is deficient in any manner, the RO/AMC should take immediate corrective action. 6. Then, readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the appellant and the representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs