Citation Nr: 1334901 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 10-01 105 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for asthma. 2. Entitlement to service connection for a post-operative right inguina hernia. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from June 1973 to April 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Reno, Nevada. In September 2010, the Veteran presented sworn testimony during a videoconference hearing, which was chaired by the undersigned. A transcript of the hearing has been associated with the Veteran's VA claims file. Relevant to this proceeding, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the individual who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the undersigned noted the basis of the prior determination and noted the elements that were lacking to substantiate the claims for benefits. In addition, the undersigned sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claims. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), or otherwise identified any prejudice in the conduct of the hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. In a September 2011 decision, the Board reopened and remanded the Veteran's claim of entitlement to service connection for asthma; the decision also remanded the Veteran's claim of entitlement to service connection for a post-operative right inguinal hernia. As will be discussed below, a review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) continued the previous denials in a June 2012 supplemental statement of the case (SSOC). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. FINDINGS OF FACT 1. The evidence of record clearly and unmistakably demonstrates that the Veteran had asthma that pre-existed his active military service. 2. The evidence of record clearly and unmistakably demonstrates that the Veteran's pre-existing asthma was not aggravated by active duty military service. 3. The evidence of record clearly and unmistakably demonstrates that the Veteran had a post-operative right inguinal hernia that pre-existed his active military service. 4. The evidence of record clearly and unmistakably demonstrates that the Veteran's pre-existing post-operative right inguinal hernia was not aggravated by active duty military service. CONCLUSIONS OF LAW 1. The Veteran's current asthma was not aggravated by his military service, and such may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1153 (West 2002 & West Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2013). 2. The Veteran's current post-operative right inguinal hernia was not aggravated by his military service, and such may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1153 (West 2002 & West Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's 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, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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). The VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). As to the current claims, a letter dated in September 2008 notified the Veteran of the information and evidence needed to substantiate a claim of service connection. Specifically, he was apprised of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The September 2008 letter also notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist as to the claims on appeal, the RO obtained the Veteran's service treatment records (STRs), as well as, VA and private treatment records in furtherance of his claims. The Veteran's representative recently asserted that remand of this matter is necessary because VA failed to obtain outstanding treatment records; specifically, Oklahoma City VA medical center (VAMC) records dating from 1974. See the Informal Hearing Presentation dated August 2013; see also the September 2010 Board hearing transcript. However, contrary to the assertions of the Veteran's representative, review of the record demonstrates that, in November 2008, the RO requested all Oklahoma City VAMC treatment records dating from April 1974 to March 1997. A response from the Oklahoma City VAMC dated January 2009 (that accompanied VA treatment records dating from 1985) reported "[t]his is everything in all of the perpetual charts that we could find." Accordingly, the Board finds that VA has satisfied its duty to assist with respect to these records. There is no indication that any additional action is needed to comply with the duty to assist. The Veteran was afforded a VA examination in October 2011. The medical opinion reflected that the VA examiner thoroughly reviewed the Veteran's past medical history, documented his medical conditions, and rendered an opinion which appears to be consistent with the remainder of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). The Board therefore concludes that the October 2011 VA medical opinion is adequate for evaluation purposes with respect to the current claims. See 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Thus, given the standard of the regulation, the Board finds that VA does not have a duty to assist that was unmet. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). Service connection connotes many factors but basically means that the evidence establishes that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisted such service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. See 38 U.S.C.A. §§ 1111, 1132 (West 2002); 38 C.F.R. § 3.304(b) (2013). 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 clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2013). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence"). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). Mere history provided by the veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. § 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). The presumption of soundness upon entry into service may not be rebutted without "contemporaneous clinical evidence or recorded history" in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Subsequently, a higher court explained the Miller decision by noting that "[n]othing in the court's opinion suggests that without such evidence the presumption can never be rebutted," emphasizing that any such determination must consider "how strong the other rebutting evidence might be." Harris v. West, 203 F.3d 1347, 1351 (Fed. Cir. 2000). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2002; see also Wagner v. Principi, 370 F.3d 1089 (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. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. §§ 3.304, 3.306(b) (2013). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of a disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2013). 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 Jensen v. Brown, 4 Vet. App. 304, 306-7 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Here, the Veteran is seeking entitlement to service connection for asthma and a post-operative right inguina hernia. It is undisputed that he is currently diagnosed with asthma as well as a post-operative right inguinal hernia. See the VA treatment records dated August 2009 and June 2000; see also the VA examination report dated October 2011. a. Presumption of soundness For reasons expressed immediately below, the Board finds that the evidence of record establishes that the Veteran had asthma that pre-existed his military service. The record also demonstrates that he had an inguinal hernia, which developed prior to service and required surgery before he entered service. Prior to his entry into active service in June 1973, the Veteran was afforded a service entrance examination. Critically, the April 1973 enlistment examination documented the Veteran's report of a hernia repair which occurred approximately five or six years prior. It was also noted that the Veteran had a post-operative hernia repair scar. Given the notation of a hernia repair at the Veteran's enlistment examination, the presumption of soundness does not operate with respect to the claimed post-operative right inguinal hernia. Consequently, the relevant inquiry is whether the Veteran's post-operative right inguinal hernia was aggravated, rather than incurred in, active service. With respect to the asthma, the April 1973 enlistment examination noted the Veteran's description of a history of asthma "eight years ago." Service treatment records dated July 1973 documented the Veteran's report that he had asthma all of his life. Nevertheless, the first actual finding of asthma documented int eh record dated from 1990. Critically, the October 2011 VA examiner expressly determined that it is clear and unmistakable that the Veteran's asthma pre-existed his military service. The examiner specifically noted the Veteran's report that he was born with asthma and had received treatment since birth for this condition. Accordingly, the Board finds that the competent medical evidence of record clearly and unmistakably demonstrates that the Veteran's asthma pre-existed his active duty service and that he had this disability at the time of his entry into active duty. Thus, the presumption of soundness on enlistment has been rebutted. If, as here, the presumption of soundness is rebutted, the Board must then address the matter of whether the presumption of aggravation has been rebutted by clear and unmistakable evidence. As such, the Board will move on to a discussion of aggravation with respect to both issues. b. Aggravation As detailed above, a pre-existing injury will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2013). For the reasons stated below, the Board finds that the evidence clearly and unmistakably shows that the Veteran's pre-existing asthma and post-operative right inguinal hernia were not aggravated by his military service. As indicated above, the April 1973 enlistment examination noted the Veteran's report of a prior hernia repair and physical examination documented a surgical scar; a history of asthma was also indicated. A review of the Veteran's STRs documents in-service treatment for complaints of chest pain and shortness of breath, which service treatment providers related to the Veteran's prior history of the removal of part of his ribcage as a child. See the STRs dated August 1973 and September 1973. The Veteran was placed on physical profile in August 1973 and October 1973 due to these symptoms. Chest x-rays conducted in August 1973 and September 1973 documented lung fields within normal limits. Pulmonary function testing conducted in November 1973 revealed spirometry within normal limits. In the March 1974 service separation examination, a medical history of asthma and hernia repair was again indicated. In a statement dated July 1977, the Veteran indicated that he was unable to complete basic combat and advanced infantry training due to recurring chest pains that would occur when he participated in physical activity. In a statement received June 1977, the Veteran's mother reported that the Veteran had surgery when he was four years old to treat a chest deformity. In a statement received August 1977, the Veteran's treating physician reported that he operated on the Veteran in 1959 and "repaired a severe pectus excavatum (funnel chest deformity). He had an uneventful recovery from his surgery and was last examined on November 23, 1959 and was doing well." [Emphasis as in original]. VA treatment records documented a chest x-ray performed in December 1985 which showed, "[n]o active disease." An August 1990 evaluation conducted for state disability determination purposes noted the Veteran's report that he "has had asthma since birth." The Veteran also reported that he had right inguinal hernia surgery in 1964. He further described occasional pain in the scar area, particularly if he lifts over 30 pounds. On physical examination, the treatment provider noted "[t]here is tenderness of the scar in the right inguinal area over the internal inguinal ring." A diagnosis of "intermittent asthma of allergic nature" was also indicated at that time. Additionally, VA treatment records dated from October 1990 through July 2008 document a continuing diagnosis of asthma. Pursuant to the September 2011 Board remand, the Veteran was afforded a VA examination with medical opinion to address his asthma and post-operative right inguinal hernia claims. With respect to the crucial question of aggravation, the October 2011 VA examiner reviewed the entire record and expressly discussed the Veteran's service and post-service treatment records. In conclusion, the VA examiner determined that the Veteran's asthma, "which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness." In rendering this conclusion, the examiner stated that the Veteran's September 1973 in-service chest x-ray was normal. He further noted that, during service, the Veteran "was put on light duty and avoiding physical activity and stooping for several month[s] prior to his discharge from service." The examiner observed that a pulmonary function test performed on the Veteran in November 1983 was "perfectly normal." The examiner also indicated that the Veteran had a repair of pectus excavatum which did not affect his pulmonary function testing. Additionally, the examiner opined, "[a]sthma was not aggravated as no evidence documented in the [claims] file to support it." With respect to the post-operative right inguinal hernia, the examiner concluded that "[t]he claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness." The examiner explained, "[h]is right inguinal hernia scar is barely visible and is non tender and he had no symptoms related to his surgery site. No residuals." The examiner further opined, "[t]here was no aggravation of hernia during military service. The residuals of scarring remained unchanged during service." When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Court has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez, 22 Vet. App. at 295. However, a medical opinion based on an inaccurate factual premise is not probative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. See Miller v. West, 11 Vet. App. 345, 348 (1998); see also Leshore v. Brown, 8 Vet. App. 409 (1995). Crucially, the competent medical evidence of record shows that the diagnosed asthma and post-operative right inguinal hernia were not aggravated beyond their natural progression by the Veteran's military service. Specifically, the Board finds the October 2011 VA medical opinion particularly probative as to the question of aggravation, as it appears to have been based upon a thorough review of the record and thoughtful analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Crucially, the October 2011 VA examiner concluded that the Veteran's asthma and post-operative right inguinal hernia were not aggravated beyond their natural progression by his military service. The rationale was substantial, thorough, and based on the overall record. The Veteran has not produced a medical opinion to refute the conclusions set forth in the October 2011 VA medical opinion concerning aggravation. As was explained in the VCAA section above, he has been afforded ample opportunity to present competent medical evidence in support of his pending claims. He has not done so. See 38 U.S.C.A. § 5107(a) (it is the claimant's responsibility to support a claim for VA benefits). Thus, the October 2011 VA examiner's opinion stands unchallenged as competent medical evidence on the crucial question of aggravation. The Board has considered the testimony of the Veteran that his currently diagnosed asthma and post-operative right inguinal hernia were aggravated by his military service. As a lay person, the Veteran is competent to testify to observable symptoms such as breathing difficulties and tenderness over his surgical scar. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability); see also Barr, supra; Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran is not competent to provide medical conclusions such as whether a disease entity was aggravated beyond its natural progression by the condition of military service. See Buchanan v. Nicholson, 451 F.3d 1331-37 (Fed. Cir. 2006); see also Miller v. Derwinski, 3 Vet. App. 201, 204 (1992). Therefore, to the extent that the Veteran or his representative are now claiming that his asthma and post-operative right inguinal hernia were aggravated by the Veteran's military service or increased beyond the natural progression of these disabilities during service, laypersons without medical training, such as the Veteran and his representative, are not competent to comment on medical matters such as whether the Veteran's respiratory treatment or contentions of right inguinal pain during service represented aggravation versus a natural progression of the disability. See 38 C.F.R. § 3.159(a) (1) (2013). The Board further observes that the Veteran's contentions of aggravated asthma and post-operative right inguina hernia symptomatology in-service are contradicted by the findings of the October 2011 VA examiner who specifically considered the Veteran's lay statements in rendering his negative opinion on aggravation. In short, the Board finds that the competent evidence, in the form of the service medical records, post-service medical records, and medical opinion evidence, clearly and unmistakably demonstrates that aggravation did not take place. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. §§ 3.304, 3.306(b) (2013); see also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (the mere occurrence of symptoms, in the absence of a demonstrated increase in the underlying severity, does not constitute aggravation of the disability). For these reasons, the Board finds that the evidence clearly and unmistakably shows that the Veteran's pre-existing asthma and post-operative right inguinal hernia were not aggravated during active duty. Accordingly, entitlement to service connection for these disabilities is not warranted. ORDER Entitlement to service connection for asthma is denied. Entitlement to service connection for a post-operative right inguinal hernia is denied. ____________________________________________ THOMAS H. O'SHAY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs