Citation Nr: 1319665	
Decision Date: 06/18/13    Archive Date: 06/27/13

DOCKET NO.  09-05 130	)	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:	Paralyzed Veterans of America, Inc.


ATTORNEY FOR THE BOARD

J. W. Loeb


INTRODUCTION

The Veteran served on active military duty from September 1981 to October 1983.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.

In August 2012, the Board of Veterans' Appeals (Board) denied entitlement to service connection for chronic obstructive pulmonary disease (COPD) and remanded the issue of entitlement to service connection for asthma to the Department of Veterans Affairs (VA) Regional Office in North Little Rock, Arkansas (RO) to obtain clarification of a March 2011 VA nexus opinion.  An additional opinion was obtained in August 2012 and added to the claims file.  Consequently, there has been substantial compliance with the August 2012 remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders).


FINDING OF FACT

There has been no demonstration by competent evidence of record that the Veteran's preexisting asthma underwent a permanent increase in severity as a result of military service.


CONCLUSION OF LAW

Preexisting asthma was not aggravated by active service.  38 U.S.C.A. §§ 1111, 1131, 1153, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Assist and Notify

The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012).  The regulations implementing VCAA have been enacted.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  
VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim.  38 U.S.C.A. §§ 5102, 5103.  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. 

The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In this case, the RO sent the Veteran a letter in July 2008, prior to adjudication, which informed him of the requirements needed to establish entitlement to service connection.  The Veteran was informed in the July 2008 letter of the factors for consideration in the assignment of a disability rating and/or effective date in the event of award of the benefit sought.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

In accordance with the requirements of VCAA, the July 2008 letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility.  Additional private evidence was subsequently added to the claims files after the letter.  

VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim.  VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159.  A VA examination with nexus opinion was obtained in March 2011, with additional clarification obtained in August 2012, and added to the claims file.  

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  As noted below, the Board finds that the March 2011 VA examination report, with August 2012 supplemental opinion, obtained in this case is adequate, as it is based on a reading of relevant medical records in the Veteran's claims file.  The examiner considered all of the pertinent evidence of record and provided a rationale for the nexus opinion on file.  There is adequate medical evidence of record to make a determination on the service connection issue decided in this case.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the issue on appeal has been met.  38 C.F.R. § 3.159(c)(4).

The Veteran has been given ample opportunity to present evidence and argument in support of his claim.  The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007).  


Analysis of the Claim

The Veteran seeks service connection for asthma, which he contends was incurred or aggravated by service. 

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012).  Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).

In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

The law provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where 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. §§ 1110, 1111 (West 2002).  Only such conditions as are recorded in examination reports are to be considered as noted.  38 C.F.R. § 3.304(b) (2012).

When no pre-existing condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry.  Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004).  The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both pre-existing and not aggravated by service.  The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the "pre-existing condition.  38 U.S.C. § 1153.  If this burden is met, then the Veteran is not entitled to service-connected benefits.  However, if the government fails to rebut the presumption of soundness under 38 U.S.C.A. § 1111, the Veteran's claim is one for service connection.  This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded.  See 38 C.F.R. 
§ 3.322.

Conversely, if a pre-existing disorder is noted upon entry into service, the Veteran cannot bring a claim for service incurrence for that disorder, but the Veteran may bring a claim for service aggravation of that disorder.  See Wagner, 370 F. 3d at 1094-1096.  In that case, 38 U.S.C.A. § 1153 applies and the burden falls on the Veteran to establish aggravation.  See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).  If the presumption of aggravation under 38 U.S.C.A. § 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease."  38 U.S.C. § 1153; see also 38 C.F.R. § 3.306 (2006); Jensen, 19 F.3d at 1417; Wagner, 370 F. 3d at 1096 (Fed. Cir. 2004).

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(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995).  Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened.  See Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a 3-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159.  Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(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.  

Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).   

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  Laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

According to the Veteran's February 1981 pre-service medical history report, the Veteran noted that he had had asthma and shortness of breath as a child; he had not had a problem since he was 11 years old.  Wheezing was reported on April 18 and April 25, 1983.  The assessment on April 18 was probable allergic rhinitis and bronchitis; the assessment on April 25 was bronchospasm.  Asthma and allergic rhinitis were diagnosed in May 1983.  According to the Veteran's September 1983 separation medical history report, he had had asthma in childhood, with the most recent attack at age 12.  The Veteran's lungs and chest were normal on his separation medical examination in September 1983.  

The Veteran's lungs were clear and he did not have any respiratory distress on VA general disability evaluation in January 1985.

According to a July 2000 examination report from Concentra Health Centers, the Veteran had asthma, for which he was taking medication.  He reported smoking a pack of cigarettes a day for 20 years.  His lungs were normal on examination.  According to a June 2006 examination report from Concentra, the Veteran had had asthma since birth.

The Veteran was hospitalized in February 2006 at Saline Memorial Hospital for increasing shortness of breath.  It was noted that he was a long-time smoker who had had asthma since childhood.  Acute asthma was diagnosed.

The impressions on private treatment records from A. B. Hatch, M.D., dated in August 2007, included dyspnea and asthma.

VA treatment records for March 2009 diagnose extremely severe obstructive pulmonary disease and hyperinflated chest.  An April 2010 CT of the chest showed severe diffuse emphysema.

A VA respiratory evaluation, which included review of the claims file, was conducted in March 2011.  The Veteran indicated that he got dyspnea with any activity and had asthma flare-ups four times a year.  Pulmonary function tests revealed severe COPD with minimal reversibility, which the examiner noted was not in the asthma range.  The diagnoses were bronchial asthma and COPD.  After review of the claims file and examination of the Veteran, the examiner concluded that there was clear and unmistakable evidence that the Veteran's asthma preexisted service, as it was noted in his history on his entrance evaluation.  The examiner also concluded that there was clear and unmistakable evidence that the Veteran's asthma had not been aggravated beyond normal progression by service, as his service separation examination was normal and he did not have post-service lung complaints until 2006.  For aggravation to have occurred, the examiner said that he would have expected that the Veteran would have required clinic visits on a more frequent basis.  The examiner also noted that it was not uncommon for a person with a prior history of asthma to have isolated episodic flare-ups.

An August 2012 statement was added to the claims file from the same examiner who evaluated the Veteran in March 2011, in response to the August 2012 Board remand to discuss the July 2000 reference to asthma, which the examiner had not addressed in March 2011.  After another review of the record, the examiner noted that his opinions remained the same as in March 2011 because the July 2000 report, which was almost 17 years after service discharge, did not change the reasoning of the March 2011 opinion.  In other words, because there is medical evidence of a history of asthma prior to service entrance, because the Veteran's lungs and chest are normal on his September 1983 separation medical examination, because there is no medical evidence of asthma flare-ups soon after service discharge, and because there is no evidence of respiratory complaints until almost 17 years after service discharge, there is clear and unmistakable evidence of asthma prior to service and clear and unmistakable evidence that the disorder did not chronically worsen beyond normal progression as a result of service.

The Board concludes that, based on the history of asthma noted on February 1981 evaluation prior to service entrance and the March 2011 and August 2012 VA nexus opinions, there is clear and unmistakable evidence that the Veteran had preexisting asthma when he entered service in September 1981.  Consequently, the presumption of sound condition on service entrance does not apply in this case.  38 U.S.C.A. 
§ 1111 (West 2002); 38 C.F.R. § 3.304(b).  A pre-service history of asthma was also noted on private medical reports in February 2006 and June 2006.  The issue thus becomes whether the Veteran's pre-existing asthma was aggravated by service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306.

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.  38 U.S.C.A. § 1153.  Accordingly, "a lasting worsening of the condition"--that is, a worsening that existed not only at the time of separation but one that still exists currently is required.  See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996).

Although asthma is noted in service in May 1983, the Veteran's lungs and chest were noted to be normal on separation examination in September 1983.  There is no medical evidence of a permanent increase in severity of the condition until a number of years after final service discharge.  In fact, the Veteran's lungs were clear, with no respiratory distress, when he was examined by VA in January 1985.  The initial post-service reference to asthma was not until July 2000, which is over 16 years after service discharge.  Additionally, the VA medical opinion dated in March 2011, along with the August 2012 addendum, which is based on a review of the claims file and physical examination of the Veteran, and which includes a supporting rationale, concludes that there is clear and unmistakable evidence that the Veteran's preexisting asthma was not aggravated by service beyond normal progression.  Moreover, there is no nexus opinion on file in favor of the claim.  Consequently, service connection for asthma is not warranted.

The Board finds that the Veteran is competent to report that he currently has asthma.  The Board notes that there is no clinical evidence that he complained of, or sought treatment for, asthma for a number of years after separation from service.  While the Board acknowledges that the absence of any corroborating medical evidence supporting assertions, in and of itself, does not render lay statements incredible, such absence is for consideration in determining credibility.  The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  The Board finds that any statement by the Veteran that he has had problems with asthma since service is less than credible when considered with the record as a whole, as discussed above.  

Although the Veteran may sincerely believe that his asthma was aggravated by active service, he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  As such, his lay opinion does not constitute competent medical evidence.  The medical opinion of the VA examiner, which provides a rationale for the opinion proffered and is based on clinical expertise and knowledge, is more probative than the opinion of the Veteran.  In the absence of competent credible evidence of chronic aggravation of preexisting asthma, service connection is not warranted.  As the preponderance of the evidence is against the Veteran's service connection claim, the doctrine of reasonable doubt is not for application.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).


ORDER

Service connection for asthma is denied.


____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs