Citation Nr: 1335479 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-41 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for asthma. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran had active service from June 27 to August 8, 1989, for 1 month and 14 days. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In August 2010, the Veteran testified a hearing held at the RO before a decision review officer (DRO). During the hearing, the DRO identified the issue on appeal, and noted what pertinent evidence was outstanding and what evidence might assist in substantiating the claim. Additionally, the Veteran through his testimony, demonstrated actual knowledge of the elements necessary to substantiate the claim. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). A copy of the hearing transcript has been associated with the claims folder. In February 2011, the Board remanded the claim to the RO via the Appeals Management Center (AMC), for additional development. FINDING OF FACT The Veteran's asthma clearly and unmistakably pre-existed his military service and there is clear and unmistakable evidence that his pre-existing asthma did not increase in severity during his brief period of military service. CONCLUSION OF LAW The Veteran's pre-existing asthma was not aggravated by his military service. 38 U.S.C.A. §§ 1101, 1131, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claim Assistance Act (VCAA) The VCAA provides that VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of the evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist him in obtaining; and, (3) that he is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Ideally, this notice should be provided prior to an initial decision on the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case (SOC) or supplemental SOC (SSOC), is sufficient to "cure" the timing defect in the provision of the notice. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370 (2006). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and, (5) effective date. See 38 U.S.C. § 5103(a) (West 2002). So compliance with the first Quartuccio element requires notice of all five of these elements of the claim, including the "downstream" disability rating and effective date elements. See Dingess, at 486. But a VCAA notice error is not presumptively prejudicial, rather, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, bears this evidentiary burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Here, a VCAA notice letter sent in September 2007 that informed the Veteran as to each element of notice as set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The notice indicated the joint obligation between him and VA in obtaining pertinent evidence and information and indicated that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records. The notice also provided information on the "downstream" disability rating and effective date elements of the claim. As well, the notice was sent prior to initially adjudicating his claim in March 2008, so in the preferred sequence. A subsequent August 2010 SOC, as well as an August 2011 SSOC appropriately readjudicated the claim, to include discussion of the merits of aggravation of a pre-existing disability, thereby curing any timing error in the provision of all required notice. Prickett, 20 Vet. App. at 376. The Board therefore finds that he has received all required notice concerning his claim. The VCAA further provides that VA has a duty to assist him in the development of this claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). This duty includes assistance in obtaining service treatment records (STRs) and other pertinent medical records, as well as the provision of an examination when necessary to make a decision on the claim. Id. This duty to assist in the development of this claim has been satisfied. His STRs and post-service VA, and Social Security Administration records have been obtained and associated with the claims file for consideration in this appeal. Subsequent to Board remand in February 2011, additional VA records of the Veteran, including those in the Virtual File, were obtained and associated with the claims file. It was noted by the AMC that the Veteran began receiving VA treatment in 2007, so no earlier records were available. The Board finds that there was substantial compliance with the Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). A VA compensation examination and medical opinion was also obtained in February 2008. The Board finds the examination is adequate for adjudicatory purposes. The Board consequently finds the duty to assist in the development of this claim satisfied. Service Connection Service connection is granted if it is shown the Veteran suffers from a disability resulting from an injury sustained or a disease contracted in the line of duty during his active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1131, 1153; 38 C.F.R. §§ 3.303(a), 3.306. To establish entitlement to direct service connection for the claimed disability, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability - or, at the very least, showing he has at some point since the filing of the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and, (3) competent and credible evidence of a relationship, or nexus, between the disease or injury in service and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). For purposes of establishing service connection, 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. See 38 U.S.C.A. §§ 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). If a condition is not noted upon entrance into service, then to rebut the presumption of soundness at service entrance VA must show by clear and unmistakable evidence both that there was a pre-existing condition and that it was not aggravated during or by the Veteran's service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). "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 pre-existence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). The provisions of 38 U.S.C.A. § 1153, and it's implementing VA regulation, 38 C.F.R. § 3.306, provide criteria for determining when a pre-existing disability has been aggravated. According to this statute and regulation, a pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air 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. Concerning this, mere temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, not just the symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). 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 Falzone v. Brown, 8 Vet. App. 398, 402 (1995); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); and Green v. Derwinski, 1 Vet. App. 320, 323 (1991). Factual Background The Veteran has asserted that he did not have asthma prior to his military service, but he has also maintained that his pre-existing asthma disorder was aggravated by his military service. Prior to service, in 1984, a hospital report shows the Veteran had been hospitalized five times since January 1984 for medical problems, including asthma. It was stated that he had been on steroids for asthma. Other private medical records from September 1988 show treatment for bronchitis. The Veteran had had active service from service from June 27 to August 8, 1989, approximately for 1 month and 14 days. The Veteran was examined for enlistment purposes in May 1989. On examination, his lungs and chest, nose, and throat were normal. A review of the May 1989 pre-enlistment Report of Medical History reveals he indicated "no" as to whether he had or had had asthma. A history of bronchitis in 1988 was reported. STR's show that in mid-July 1989 the Veteran received treatment in an emergency room for acute respiratory distress later described as an asthma attack. He had shortness of breath with exercise. It was reported that the Veteran was an asthmatic and that he had a history of asthma since age 11. The diagnoses were asthma and status asthmaticus. The Veteran's DD Form 214 reflects that he was separated from service as he "...did not meet procurement [and] med[ical] fitness standards-no disability." In a September 2007 VA Form 21-526, Veteran's Application for Compensation and /or Pension, the Veteran claimed that his asthma was made much worse due to his (military) service. VA outpatient treatment records from September and October 2007 show asthma was listed as a problem and diagnosis. It was reported in October 2007 that a pulmonary function test showed that spirometry showed no significant obstructive change. In a February 2008 VA medical examination report and medical opinion, it was indicated that the Veteran's service, private, and VA records were reviewed. The examiner opined that based on a review of available records and information from textbooks, the Veteran's asthma pre-existed his military service. Although the Veteran was noted to have an asthmatic attack while in service (described as an exacerbation), such resolved with treatment. Subsequent evidence including October 2007 pulmonary function testing (spirometry) show no significant obstructive change. It was ultimately opined that the Veteran's asthma was not aggravated beyond its natural progression during service as shown by normal spirometry in 2007. In August 2010, the Veteran testified at a hearing at the RO before a DRO. He testified that he had bronchitis before his military service, and that he was not diagnosed with asthma. He stated that he had an asthma attack while in basic training, and that he was in the hospital for 9 days and then discharged. The Veteran stated that he thought he began receiving treatment at VA in 2007. VA clinical records through December 2010, report the Veteran received treatment for various medical problems, including asthma. Analysis It has been established that the government has the burden to rebut the presumption of soundness by clear and unmistakable evidence that a disability was both preexisting and not aggravated by service. See again Wagner v. Principi, 370 F 3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). Prior to entrance into service, records from the Social Security Administration, dating back to 1984, reflects that the Veteran had a history of hospitalization and treatment for asthma. The Veteran had active service from June 27 to August 8, 1989--1 month and 14 days. Asthma was not diagnosed on entrance examination in May 1989. Thus, the Veteran is presumed sound on induction. On a historical form, the Veteran affirmatively denied he had a history of asthma. However, shortly after his entrance onto military service, STRs report he received treatment for what was described as an asthma attack subsequent to exercise. At that time it was reported that the Veteran had a history of asthma since age 11. It is also noted that in his initial claim for service connection received in September 2007, the Veteran states that he had a worsening of asthma during military service. Additionally, in February 2008, a VA physician, after review of the records opined that based on a historical review of the evidence, the Veteran had pre-existing asthma. In sum, there is medical evidence, prior to service, substantiating treatment (medication and hospitalization) for asthma. Further, a medical professional has determined that the Veteran's asthma preexisted service. In light of the aforementioned evidence, the first prong of rebutting the presumption of soundness has been satisfied. There is clear and unmistakable evidence demonstrating that the Veteran's asthma initially manifested prior to, or pre-existed, his active service. In light of the finding that the Veteran's asthma clearly and unmistakably pre-existed service, the Board now must address if there is clear and unmistakable evidence that the Veteran's pre-existing asthma did not increase during his 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 progression of the preexisting condition. Id. STR's show that during service, that was only 1 month and 14 days, the Veteran received treatment for asthma in the emergency room. The Veteran's separation from service ensued shortly thereafter. It is important to note at this point that independent medical evidence usually is needed to support a finding that a pre-existing disorder increased in severity during service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). Mere temporary or intermittent flare-ups of a pre-existing injury or disease during service are insufficient to be considered "aggravation in service", unless the underlying condition, itself, as contrasted with mere symptoms, has worsened. Falzone v. Brown, 8 Vet. App. 398, 402 (1995). A VA physician has opined on the matter of whether the Veteran's pre-existing asthma increased in severity during his military service. In a February 2008 opinion, a VA physician, who reviewed the records, related that the Veteran's pre-existing asthma was not aggravated beyond its natural progression during service. It was fully acknowledged that he received treatment during active duty. It was pointed out, however, that post-service pulmonary function tests in 2007, many years after service, had shown no significant obstructive change. The VA medical opinion is most probative, based on a review of the record and medical information, and is supported by a reasoned analysis. Therefore, it must be said that there is clear and unmistakable evidence that there was no aggravation of the Veteran's pre-existing asthma condition. There is no medical evidence to the contrary. In sum, the Veteran's asthma clearly and unmistakably pre-existed his military service and there is clear and unmistakable evidence that his pre-existing asthma did not increase in disability during his brief period of military service. Thus, the presumption of soundness is rebutted. The Board recognizes that the Veteran has variously indicated that his asthma began or increased in severity during his military service. Lay assertions may serve to support a claim for service connection when they relate to the occurrence of events that are observable as a lay person or the presence of a disability or symptoms of a disability that are subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support the existence of a disability even when not corroborated by contemporaneous medical evidence). However, while the Veteran may be competent to offer the above assertion, the Board does not find it to be credible. The Veteran's statements that he did not have pre-existing asthma, including at his personal hearing at the RO, are refuted by numerous medical documents in the record. His statements are contradictory and undermine his credibility. In weighing credibility, VA may consider inconsistent statements, internal inconsistency and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498 (1995). Further, his assertions are not probative. As a lay person, the Veteran has not been shown to have the clinical expertise to opine as to medical etiology or to render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (Fed. Cir. 2007). Accordingly, his assertions as to aggravation of pre-existing asthma, absent corroboration by objective medical evidence and opinions, lack sufficient probative value regarding an increase in his pre-existing asthma. Jandreau, supra. For these reasons and bases, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for asthma. Accordingly, the benefit-of-the-doubt rule does not apply, and the claim resultantly must be denied. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Service connection for asthma is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs