Citation Nr: 1332324	
Decision Date: 10/18/13    Archive Date: 10/24/13

DOCKET NO.  12-21 105	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Newark, New Jersey



THE ISSUE

Entitlement to service connection for asthma, claimed as asthma and bronchitis.



REPRESENTATION

Appellant represented by:	National Association of County Veterans Service Officers



ATTORNEY FOR THE BOARD

H.J. Baucom, Counsel




INTRODUCTION

The appellant had a period of initial active duty for training (ACDUTRA) from February 23, 1958 to August 18, 1958 when he was relieved from active duty training and returned to the National Guard.  It was noted that he had other, earlier service of 5 months and 11 days.  The service personnel records also show that the appellant had active duty or active duty training from August 21, 1959 to September 4, 1959 and from July 22, 1960 to August 5, 1960.  

This matter initially arose before the Board of Veterans' Appeals (Board) on appeal of a September 2010 rating decision by the RO. 


FINDING OF FACT

The currently demonstrated asthma is shown as likely as not to have had its clinical onset during the appellant's period of ACDUTRA from February 23, 1958 to August 18, 1958.  

CONCLUSION OF LAW

The appellant's disability manifested by asthma is due to disease or injury that was incurred in a period of ACDUTRA. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  

'Active service' is defined by VA law and regulations.  Active military, naval, or air service includes active duty, any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty.  See 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a).  Service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA. 
 
National Guard service generally includes periods of ACDUTRA and/or INACDUTRA.  ACDUTRA includes full-time duty with the Army National Guard of any State under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law.  See 38 U.S.C.A. § 101(22)(C); 38 C.F.R. § 3.6(c).  

Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  

To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

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).  

Competent lay evidence is 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(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

The appellant contends that he developed asthma and bronchitis while serving on active duty for training while at Fort Knox, Kentucky and received treatment for these conditions at the base medical center. 

In his initial application, the appellant noted that he was claiming asthma and bronchitis that began in 1957.  

In a September 1957 medical history report for his enlistment in the National Guard, the appellant denied having shortness of breath or cough.  A September 1957 medical examination was normal.  There was no examination or treatment record for the specific period of ACDUTRA from February 1958 to August 1958.  

In a November 1960 report of medical history for reenlistment in the National Guard, the appellant reported having a history of whooping cough, weight gain/loss, and hay fever with the additional notation "hay fever control by medication.  LOB in seearroual[sp] hay fever."  The November 1960 medical examination was normal.  

A June 1961 medical examination for qualification for the National Guard found that the appellant had running eyes, asthma -"bronchiectary" chronic persistent cough and shortness of breath (SOB) not physically able to perform military functions properly.  

In July 1961, the appellant was discharged from the National Guard as he was found to be physically disqualified for retention due to "asthma bronchitis" not incident to National Guard service. 

The appellant was afforded a VA examination in March 2010.  The VA examiner reviewed the claims file including the record noting the asthma diagnosis in service.  The appellant reported being diagnosed with asthma during service and being started on medications at that time.  He reported having shortness of breath, which the examiner also observed to be significant and necessitated using an inhaler during the examination.  

The examiner diagnosed the appellant with asthma.  After the examiner reviewed the record and evaluated the appellant, she opined that his current asthma symptoms were as or more likely as not secondary to his service-related asthma.  

There is a positive medical opinion of record.  The examiner noted that his period of service ended August 1958 and the Board assumes that by stating "service-related asthma" the examiner is addressing this period of ACDUTRA service from May to August 1958.  See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record).  There is no evidence against a finding of service connection. 

Moreover, to the extent that the records referable to the initial period of ACDUTRA in 1958 are not available for review, the Board finds the Veteran's lay assertions are credible and consistent with the evidence of record in showing that he developed respiratory symptoms during that period of service. 

Based on a review of the entire record, the Board finds the evidence to be in relative equipoise in showing that the current asthma as likely as not had its clinical onset during the period of ACDUTRA from February 23, 1958 to August 18, 1958.

In resolving all reasonable doubt in the Veteran's favor, service connection is warranted. 

To the extent that this action is favorable to the appellant, a discussion of VCAA is not required at this time.  


ORDER

Service connection for asthma is granted


____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs