Citation Nr: 1335586 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 08-08 571 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a respiratory disorder during active duty special work with the New York Army National Guard from February 12, 2004 to August 31, 2004. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served in the New York Army National Guard from October 3, 1998, to June 15, 2008. He served on active duty special work (ADSW) with the United States Army National Guard from February 12 to August 31, 2004. The RO in the Statement of the Case characterized service as "active duty status." This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a July 2007 rating decision of the New York, New York, Department of Veterans Affairs (VA) Regional Office (RO). In April 2009, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. In August 2009, the Board remanded the issue of service connection for cervical spine disability and denied the claim for service connection for respiratory disability. The Veteran appealed the Board's decision as it pertained to the respiratory claim to the U.S. Court of Appeals for Veterans Claims (Court). In a March 2010 order, the Court granted the parties' Joint Motion to Vacate and Remand (JMR) the Board's decision regarding the claims for service connection for respiratory disability for readjudication consistent with the directives contained therein. In December 2010, the Board denied the issue of service connection for a respiratory disability based on the period of duty in the New York Army National Guard during the post-September 11th relief operation (basic eligibility). The issues of entitlement to service connection for cervical spine disability and a respiratory disability during ADSW service with the United States Army National Guard from February 12, 2004 to August 31, 2004 were remanded at that time. These two claims were again remanded in January 2012. The case was returned to the Board for appellate consideration. The Board found that, although the additional development was completed, the RO failed to provide the Veteran with a Supplemental Statement of the Case, and in April 2013, the Board remanded the Veteran's claims for this task to be completed. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on a veteran, as a matter of law, the right to compliance with the remand orders). The case has been returned to the Board. FINDINGS OF FACT 1. The Veteran had pre-service injuries to his cervical spine; diagnoses included cervical disc disease, spondylitic ridging, foraminal narrowing, and radiculopathy. 2. A cervical spine disorder was not noted at entry into active duty special work. 3. The evidence clearly and unmistakably establishes that degenerative disc disease of the cervical spine with cervical disc disease, spondylitic ridging, foraminal narrowing, and radiculopathy pre-existed service and that these disabilities were not permanently aggravated in service. 4. The Veteran had asthma and pneumonia prior to his National Guard service. 5. A respiratory disorder, including asthma and pneumonia, was not noted at entry into active duty special work. 6. The evidence clearly and unmistakably establishes that asthma and pneumonia pre-existed service and that these disabilities were not permanently aggravated in service. CONCLUSIONS OF LAW 1. Cervical disc disease, spondylitic ridging, foraminal narrowing, and radiculopathy clearly and unmistakably preexisted service and clearly and unmistakably were not aggravated by service. 38 U.S.C.A. §§ 101(24), 1101, 1110, 1111, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). 2. Asthma and pneumonia clearly and unmistakably preexisted service and clearly and unmistakably were not aggravated by service. 38 U.S.C.A. §§ 101(24), 1101, 1110, 1111, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued notice letters, dated in July 2006 and August 2009 to the Veteran. These letters explained the evidence necessary to substantiate the Veteran's claims for service connection and increased disability ratings, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran's available service treatment records, reports of VA and private post-service treatment, and the Veteran's own statements in support of his claims. The Veteran was afforded VA examinations responsive to the claims for service connection of a cervical spine disorder and a respiratory disorder. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The opinions were conducted by medical professionals, following thorough examination of the Veteran, solicitation of history, and review of the claims file. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issues on appeal. Additionally, the Veteran has not alleged that any examination is inadequate to decide the claims being adjudicated herein, so the examinations are presumed to have been adequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of the opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria for Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). To establish a right to compensation for a present disability, a Veteran must show: (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-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As arthritis is considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A veteran is presumed to be in sound condition upon entrance into service, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C.A. § 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) (2013). Where such defects, infirmities or disorders are not noted when examined, accepted, and enrolled for service, pursuant to 38 U.S.C.A. §1111 and 38 C.F.R. § 3.304, in order to rebut the presumption of soundness on entry into service, 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. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). 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 disability, as opposed to the symptoms of that disability, has worsened. Beverly v. Brown, 9 Vet. App. 402, 406 (1996) (citing Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991)). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). In this case, the Veteran is service-connected for a back disability due to a period of ADSW. Therefore, he has attained veteran status. Also, here, as previously discussed, his ADSW is considered active service. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Service Connection Cervical Spine Disability In May 1991, May 1992, and January 1998 military history and examination reports indicate that the Veteran denied a history of joint pain or deformity, arthritis, and recurrent back pain. A history of scoliosis since childhood was noted in May 1991, but not found to be disabling. An October 2003 letter from Dr. Pelletier indicates that the Veteran had permanent radiculopathy due to chronic cervical disc disease at C4-5, and degenerative disc disease of the other discs of his neck (also referred to as degenerative arthritis), which caused chronic neck pain. December 2003 treatment notes from Dr. Cunningham indicate that the Veteran has a history of congenital scoliosis, polio, and degenerative disc disease of the neck. A February 2, 2004 chiropractic consultation report showed that the Veteran had an injury to the neck in January 1992 wherein he was kicked in the neck while restraining a patient; the Veteran reported that his neck pain worsened "[a]s of recent", with more constant pain. A February 8, 2004 report from Clifton Chiropractic indicates that the Veteran had a compensable work injury to the neck in January 1992, and that he has experienced cervical problems since that incident. A September 2003 MRI report was reviewed, as well as an October 2003 consultation report with Dr. Pelletier; the MRI showed spondylitic ridging and disc bulges at C4-5, C5-6, and C6-7, with left foraminal narrowing. The Veteran was found to have permanent moderate partial disability. In July 2004, the Veteran was assessed by Dr. Davis as having cervical spondylosis by injury due to a blunt trauma to the cervical spine, related to an injury of January 1992. According to Dr. Davis' report, the Veteran reported a chronic and consistent history of neck pain with radiculopathic pain to the upper extremities. The Veteran reported that he stopped working in June 2004. The Veteran reported that his injury occurred while attempting to restrain a patient while working at the Capital District Psychiatric Center in January 1992; he also reported a similar injury at work in 1987. A November 2004 Medical Review Certificate and associated National Guard forms indicate that the Veteran reported a history of cervical injury with spondylosis which caused nerve root irritation. A December 2004 Surgeon General review indicates that a September 2003 MRI showed posterior spondylitic ridging and likely accompanying disc bulge at C4-5 and mild diffuse disc bulges at C5-6 and C6-7. A November 2004 Annual Medical Certificate was also reviewed; this report showed that the Veteran reported a history of cervical injury with cervical spondylosis, causing nerve root irritation and periods of numbness and pain. Medical retirement was recommended; the report indicated that the Veteran was found unfit for duty in November 2004, and had deployed with his unit in spring 2004. February 2005 and March 2005 National Guard Supplemental Medical Reports indicate that the Veteran no longer met physical performance standards and was found unfit for duty in November 2004 upon annual medical screening due to his spondylosis and asthma. Medical retirement was recommended. In October 2005, the Veteran was seen by Dr. Pelletier who discussed surgical options for the Veteran's long and chronic history of problems with his cervical and lumbar spine. An April 2007 VA examination report indicates that the Veteran reported a history of work related injuries to his neck in 1987 and 1992, and that his neck pain and upper extremity numbness worsened after lifting and carrying records while on active duty for National Guard service. A history of polio and scoliosis since childhood was noted. There were complaints of neck pain into the right shoulder and arm, with bilateral hand numbness, tingling, and burning. Following a physical examination, the diagnosis was cervical spondylosis with bulging discs at C4-5, C5-6, and C6-7, with cervical radiculopathy. The VA examiner opined that the Veteran's cervical spine disorder was not likely aggravated by an in-service illness, injury, or event. The VA examiner pointed out that the Veteran had injuries in 1987 and 1992, while working, and that the November 2004 records do not suggest that his service exacerbated a pre-existing cervical spine disorder; to the contrary, private medical records indicate a progression of symptoms prior to 2004, with no notation of in-service complaints. A March 2009 MRI report indicates that the Veteran has mild posterior spondylitic ridging, unconvertebral hypertrophy and minimal diffuse disc bulges from C4-5 to C6-7, with minimal stenosis and mild to moderate right and left foraminal narrowing. An August 2009 report from Clifton Chiropractic indicates that the Veteran had a compensable injury to his cervical spine while on duty as a nurse in 1987 and in 1992. He returned to work following the second injury in April 1993, and did well until September 1995, wherein he began to experience more frequently symptoms. In 2003, he again began to complain of worsening symptoms, with radiation of pain into the right arm and left arm paresthesia. A consultation with Dr. Pelletier indicated that the Veteran had permanent radiculopathy due to chronic cervical disc disease at C4-5, and that the entire degenerative process contributed to the Veteran's neck pain. In 2004, the Veteran had increased episodic pain due to lifting and hauling patient charts. The chiropractor indicated that, based on the Veteran's complaints, objective findings, and history, the Veteran should retire, as his work and military duties were aggravating his condition. An October 2009 VA examination report indicates that the Veteran first experienced neck symptoms in 1987, while on the job; he was injured again in 1992. He reported a history of chiropractic treatment since the 1980s and a history of childhood scoliosis. He complains of numbness of the fingers. He receives worker's compensation benefits related to the 1992 injury. Following an examination and a review of imaging studies, the diagnosis was cervical spine degenerative disc disease. The VA examiner noted the Veteran's 1987 and 1992 injuries, and that he began complaining of worsening symptoms in spring 2003; the VA examiner also noted that the Veteran reports a history of aggravating his neck symptoms while on duty for 7 months in 2004, wherein he was lifting boxes of heavy files. The VA examiner noted that the alleged 2004 lifting injury did not cause a permanent aggravation. The VA examiner further opined that the Veteran's present cervical spine disorder and symptoms are less likely than not related to activities during ADSW service in 2004. April 2009 and June 2010 chiropractic consultation report from UMC Medical Consultants indicates that the Veteran was evaluated regarding his worker's compensation benefits related to his January 1992 injury. Following the examination, the diagnoses were cervical disc degeneration at C4-5 and C6-7, with disc bulges at C4-5 and C6-7 and chronic muscle spasms. The evaluator found that there was a causal relationship between the diagnoses and the accident of January 1992 and that his prognosis is poor. A December 2010 letter from Clifton Chiropractic indicates that the Veteran has ongoing neck, upper back, and upper extremity complaints since his 1992 injury. Increases in symptoms related to his employment in 1995, 1996, 2003, and 2004 were noted; the Veteran stopped working in 2004 as his work duties aggravated his condition. A December 2010 VA examination report indicates that the Veteran has been diagnosed with multi-level cervical disc disease with spinal canal and foraminal encroachment, resulting in radiculopathy. The VA examiner, following an examination and review of the claims file, opined that cervical spine disorder was not aggravated by the Veteran's ADSW service. The VA examiner noted that there has been a slow progression of cervical pathology since the Veteran's 1992 work-related injury. At the Veteran's hearing before the undersigned in April 2009, the Veteran asserted that his claimed disabilities were aggravated during his service. According to the Veteran, his cervical spine disability was aggravated when moving file boxes of medical charts during his 2004 period of service. The Appellant served on Active Duty Special Work (ADSW) which the AOJ has accepted as active duty. It is unclear whether an examination would have been conducted for entrance purposes for this period of service. Since we cannot resolve this issue, we shall accept that an examination would have been conducted. However, the report is not available for review. Under such circumstances, the Veteran is entitled to consideration of the presumption of soundness. 38 U.S.C.A. § 1111. In order to rebut the presumption of soundness there must be clear and unmistakable evidence that the disability both pre-existed service and was not aggravated by service. 38 U.S.C.A. § 1111. See Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004). In regard to a cervical disability, there is clear and unmistakable evidence that he had a neck injury prior to service. In September 2003, testing disclosed spondylitic ridging and disc bulge with mild foraminal narrowing. An October 2003 medical statement documented the existence of cervical disc disease, compromise of a root, and what was described as a permanent cervical radiculopathy. In early February 2004, he complained of more constant neck pain, bilateral paresthesias and increased muscular involvement. This evidence clearly and unmistakably establishes that cervical disc disease, spondylitic ridging, foraminal narrowing and radiculopathy preexisted his entrance onto active duty. However, in order to rebut the presumption of soundness the VA must establish by clear and unmistakable evidence that cervical disc disease, spondylitic ridging, foraminal narrowing and radiculopathy were not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability or that any increase was due to the natural progress of the pre-existing condition. Wagner. Here, the evidence clearly and unmistakably demonstrates that the Veteran had multiple cervical spine disabilities prior to his entrance into ADSW service; he had been diagnosed with cervical disc disease, spondylitic ridging, foraminal narrowing, and radiculopathy. This evidence includes the private treatment records discussed previously, as well as the April 2007, October 2009, and December 2010 VA examination reports, in which the VA examiners discussed the pre-service private treatment records, as well as the Veteran's statements. Additionally, the Veteran acknowledged, in seeking treatment for his cervical disc disease, spondylitic ridging, foraminal narrowing, and radiculopathy that he had on-the-job neck injuries in 1987 and 1992, which were prior to his service. The Board points out that the Veteran is in receipt of worker's compensation benefits for these neck injuries and that he was assessed with a permanent moderate partial cervical spine disability in 2004. Of note, in July 2004, the Veteran described his complaints as consistent and chronic to Dr. Davis. Importantly, he did not report a worsening of symptoms at any time during his ADSW period of service; the Board observes that the February 2004 reports of an increase in cervical pain occurred prior to the start of the ADSW; the medical records were dated February 2 and 8, 2004, and the Veteran's ADSW began February 12, 2004. Also significant, the Veteran, in seeking treatment after his ADSW, and in reporting his history of cervical spine disabilities in November 2004, did not report an exacerbation of his symptoms related to his National Guard work; such assertions only began in connection with his claim for benefits. In addition, the April 2007, October 2009, and December 2010 VA examiners noted the Veteran's cervical spine injuries in 1987 and 1992, and that there was no indication in the November 2004 service treatment records that his ADSW service exacerbated his pre-existing cervical disc disease, spondylitic ridging, foraminal narrowing, and radiculopathy; the Veteran merely reported his chronic symptoms. This evidence clearly and unmistakably demonstrates that the Veteran had cervical disc disease, spondylitic ridging, foraminal narrowing, and radiculopathy prior to his service; there is simply no evidence to the contrary. Thus the Board concludes that there is clear and unmistakable evidence that cervical disc disease, spondylitic ridging, foraminal narrowing, and radiculopathy preexisted the ADSW period of service. The remaining question remains whether there is clear and unmistakable evidence that the pre-existing cervical disc disease, spondylitic ridging, foraminal narrowing, and radiculopathy were not aggravated by service. The aforementioned VA examination reports address this question. The VA examiners' opinions were rendered after a review of the claims file, including available a pre-ADSW private and service treatment records, service treatment records for the period of ADSW, and all post-service VA and private treatment records. The VA examiners, in their opinions, noted the Veteran's symptoms during treatment in 2003 and prior to ADSW in 2004, his report of history in November 2004, and his complaints since his ADSW service, and found that the Veteran's symptoms were chronic and did not increase in severity during service. In particular, the December 2010 VA examiner opined that the course and severity of the Veteran's cervical spine disabilities were a consistent progression, and little influenced by the Veteran's ADSW service in the military. The VA examiner noted the absence of complaints, and that the Veteran did not report an exacerbation of symptoms or injury during his ADSW service. The VA examiner also noted that the lifting injury that the Veteran reported at the October 2009 VA examination did not represent a worsening of his cervical disc disease, spondylitic ridging, foraminal narrowing, and radiculopathy, and concluded that the Veteran's pre-existing cervical spine disorder was not aggravated by ADSW service. As the October 2009 and December 2010 VA examiners gave detailed reasons for the opinion that the Veteran's ADSW period of service did not permanently worsen his preexisting cervical disc disease, spondylitic ridging, foraminal narrowing, and radiculopathy (as opposed to temporarily exacerbating them) based on an accurate characterization of the evidence of record, these opinions are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). See also Beverly, 9 Vet. App. at 406 (requiring worsening of underlying condition as opposed to temporary or intermittent flare-ups of symptoms in order to establish aggravation). There is no contrary medical opinion in the evidence of record. With regard to the August 2009 opinion from Clifton Chiropractic, that the Veteran's work and military duties were aggravating his cervical spine disability, the Board notes that the opinion stated that it was based on "history," indicating the physician was merely recording the Veteran's own statements. The restatement of a claim by a physician or other medical practitioner who does not have personal knowledge of the matter, or supporting records, is no better than the Veteran's assertion of his claim. See Swann v. Brown, 5 Vet. App. 229 (1993); Coghill v. Brown, 8 Vet. App. 342 (1995); LeShore v. Brown, 8 Vet App. 409 (1995). Furthermore, to the extent that this statement is an independent assessment rather than a "mere recording" of the Veteran's reported history, the Board finds it is incomplete, as it does not distinguish the Veteran's complaints of episodic pain in 2004 from his substantial history of worsening symptoms prior to his ADSW service. Likewise, the Board observes that, in December 2010, the same private provider asserted that only the Veteran's work duties were the source of aggravation of the Veteran's cervical disc disease, spondylitic ridging, foraminal narrowing, and radiculopathy. See Black v. Brown, 5 Vet. App. 177 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). In sum, the evidence establishes, by clear and unmistakable evidence that the cerviocal disabilities pre-existed service and that there was no increase in severity (aggravation) during service. Respiratory Disorder In May 1991, May 1992, and January 1998 military history and examination reports indicate that the Veteran denied a history of asthma. In December 2003, the Veteran was treated by Dr. Cunningham for recent pneumonia. A history of treatment for polio was noted. Private treatment records dated May and November 2004 show follow up for recurrent pneumonia and treatment for asthma. A December 2004 report from Dr. Bruce indicates that Veteran had a history of asthma since childhood, and polio at age 7; the Veteran reported that his asthma mildly worsened after working at Ground Zero for two weeks. The Veteran also reported a history of multiple episodes of pneumonia since childhood. Chest x-ray showed scoliosis and right lower lobe poorly defined disease that looks fibrotic. The assessment was asthma complicated by esophageal reflux. A March 2005 chest x-ray report shows a stable 7 mm subpleural right upper lobe nodule. A November 2004 Medical Review Certificate and associated National Guard forms indicate that the Veteran has a history of asthma, and recurrent pneumonia. As discussed earlier, February 2005 and March 2005 National Guard Supplemental Medical Reports indicate that the Veteran no longer met physical performance standards and was found unfit for duty in November 2004 upon annual medical screening due to his cervical spine disorder and asthma. Medical retirement was recommended. An April 2007 VA respiratory disorders examination report indicates that the Veteran reported a history of childhood asthma, which worsened after working at Ground Zero in September 2011. He denied asthmatic symptoms until then. Upon examination, he had decreased breath sounds and dyspnea on mild exertion. The VA examiner opined that the Veteran's respiratory disorder was less likely than not caused by or the result of an event in service. The VA examiner acknowledged that there were no pre-9/11 pulmonary function tests available, but pointed out that tests in December 2004, March 2006, and April 2007 do not indicate any progression or worsening. The VA examiner also pointed out that a review of the Veteran's records and history indicate that the Veteran had a childhood history of asthma and multiple episodes of pneumonia as a child and adult, and that the Veteran did not report any respiratory symptoms until his bouts of pneumonia in December 2003 and April 2004. Reports from Dr. Bruce in 2009 indicate that the Veteran continues to seek treatment for his asthma and that his lung nodule remains stable. A May 2010 statement from Dr. Ying indicates that the Veteran has been treated by Dr. Ying since March 2009. A history of asthma since childhood was noted. Dr. Ying stated that the Veteran symptomatically outgrew his asthma, but began experiencing difficulties with his respiratory system following his work in New York City after 9/11. Dr. Ying opined that the Veteran's 9/11 experience significantly impacted his respiratory status, in taking into account his medical history of asthma and post-polio syndrome. A December 2010 VA examination report indicates the Veteran has mild restrictive and obstructive airway disease since 2004. The VA examiner, following an examination and review of the claims file, noted that there are no pulmonary function test results for the period prior to active duty for special work, and that it is therefore the opinion that aggravation of the pre-existing lung condition prior to February 2004 was aggravated by the period of active duty. However, a May 2011 addendum indicates that the VA examiner intended to opine that a determination of whether a pre-existing lung disorder was aggravated by active duty special work could not be made without resort to mere speculation. The VA examiner noted that the Veteran's pulmonary function tests between 2004 and 2007 were essentially the same, before deteriorating in later years, which made aggravation of a pre-existing asthmatic condition attributable to the 9/11 experience less likely. At the Veteran's hearing before the undersigned in April 2009, the Veteran asserted that his respiratory disorder was aggravated while working at the World Trade Center immediately following the 9/11 attacks. The Board points that the Veteran did not have qualifying service for his 2001 activation, and that a December 2010 Board decision denied the Veteran's claim of entitlement to service connection for respiratory disability based on a period of duty during the post-9/11 relief operation; accordingly, only service connection due to his 2004 period of ADSW service is for consideration in this case. The Appellant served on Active Duty Special Work (ADSW) which the AOJ has accepted as active duty. It is unclear whether an examination would have been conducted for entrance purposes for this period of service. Since we cannot resolve this issue, we shall accept that an examination would have been conducted. However, the report is not available for review. Thus, the Veteran is entitled to consideration of the presumption of soundness. 38 U.S.C.A. § 1111. In order to rebut the presumption of soundness there must be clear and unmistakable evidence that the disability both pre-existed service and was not aggravated by service. 38 U.S.C.A. § 1111. See Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004). As noted above, the Veteran has been diagnosed with asthma and recurrent pneumonia. However, there is clear and unmistakable evidence that these disabilities existed prior to his period of ADSW service. Although the May 1991, May 1992, and January 1998 military history and examination reports indicate that the Veteran did not report his asthma and recurrent pneumonia, or report any symptoms thereof, the Veteran's private treatment records from 2003 through 2010 clearly indicate that the Veteran had experienced chronic symptoms prior to his 2004 period of ADSW, and that these disorders had been definitively diagnosed prior to the aforementioned 1991, 1992, and 1998 military examinations. Determination of the existence of a pre-existing condition may be supported by contemporaneous evidence, or recorded history in the record, which provides a sufficient factual predicate to support a medical opinion, see Miller v. West, 11 Vet. App. 345, 348 (1998), or a later medical opinion based upon statements made by the Veteran about the pre-service history of his/her condition. Harris v. West, 203 F.3d. 1347 (Fed. Cir. 2000)). The burden is on VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. However, in order to rebut the presumption of soundness the VA must establish by clear and unmistakable evidence that cervical disc disease, spondylitic ridging, foraminal narrowing and radiculopathy were not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability or that any increase was due to the natural progress of the pre-existing condition. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In this case, the medical evidence clearly and unmistakably demonstrates that the Veteran had asthma and recurrent pneumonia prior to entrance into ADSW service. This evidence includes the private treatment records noted above, as well as the VA examiners' April 2007, October 2009, and December 2010 opinions, in which the VA examiner discussed the pre-service treatment records as well as the Veteran's statements. Additionally, the Veteran admitted a history of asthma and recurrent pneumonia since childhood. The appellant is competent to relate his medical history. Of note, private treatment records from the period of ADSW service reflect a history of asthma and recurrent pneumonia since childhood. Although the Veteran was treated for a bout of recurrent pneumonia in the time frame surrounding his ADSW period of service, its onset was in December 2003, with follow up treatment during his ADSW. Moreover, there are no corresponding service treatment records reflecting an exacerbation of symptoms. In addition, the April 2007 and December 2010 VA respiratory examination reports indicate that, although pre-2001 pulmonary function tests are unavailable, 2004 through 2007 pulmonary function tests were stable. To the extent that the Veteran was seen for a follow up for a (December 2003) recurrence of pneumonia in 2004, the VA examiners indicate that treatment records and subsequent pulmonary function tests do not indicate that this bout of pneumonia was not related to his active duty special work period of service. All of this evidence reflects that the Veteran had asthma and pneumonia prior to service, and there is no evidence to the contrary. Thus, the Board concludes that there is clear and unmistakable evidence that asthma and pneumonia preexisted the ADSW service. The aforementioned VA examination reports address the issue of aggravation. The VA examiner's opinions were rendered after a review of the claims file including the available pre-ADSW private and service treatment records, the service treatment records, and all post-service VA and private treatment reports. The April 2007 and December 2010 VA respiratory examiners also noted the Veteran's symptoms during his treatment in 2003 and 2004, his report of history in November 2004, and his complaints following his service. According to the VA examiners, the Veteran's symptoms were chronic and did not increase in severity during service. The October 2009 and December 2010 VA examiners noted that the Veteran's pulmonary function tests were unavailable for before the period of active duty special work in 2004, but that pulmonary function tests since then were consistent and stable, and indicate that the Veteran's asthma and recurrent pneumonia were not aggravated by the Veteran's military service. The VA examiners noted that the Veteran underwent treatment for a recurrence of pneumonia in 2004, during his period of ADSW service, but that the Veteran did not indicate that this pneumonia was due to his ADSW service at that time; as previously noted, his pneumonia began prior to his ADSW. The Board observes that the Veteran did not seek treatment from military providers, or suggest worsening of his symptoms; November 2004 records indicate that the Veteran reported a history of asthma and recurrent pneumonia since childhood, and that he reported his most recent bout of pneumonia. The VA examiners also indicated that, because the pulmonary function tests were the same for the period following his ADSW service, it was unlikely that his asthma and recurrent pneumonia, which preexisted service, was aggravated by ADSW service. As the October 2009 and December 2010 VA examiners gave detailed reasons for the opinion that the Veteran's ADSW period of service did not worsen his preexisting respiratory disorders of asthma and recurrent pneumonia based on an accurate characterization of the evidence of record, these opinions are entitled to substantial probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304; Beverly, 9 Vet. App. at 406 (requiring worsening of underlying condition as opposed to temporary or intermittent flare-ups of symptoms in order to establish aggravation). There is no contrary medical opinion in the evidence of record. Regarding the May 2010 statement from Dr. Ying that the Veteran's current respiratory complaints represent a worsening of his preexisting asthma, the Board notes that the Dr. Ying based the opinion on the Veteran's report of worsening due to the Veteran's work at Ground Zero in New York City after 9/11, not the period of active duty special work at issue here. The Board again reiterates that the Veteran's work following 9/11 does not constitute eligible service. Ultimately, the evidence clearly and unmistakably establishes that the Veteran and pneumonia prior to service and that there was no increase in severity during service. The presumption of soundness at entry is rebutted. Lay Evidence The Board has also considered the lay statements. These include the Veteran's testimony before the undersigned and a March 2008 statement. Lay witnesses are competent to testify to their observations, and the Veteran is competent to state that he observed a worsening in his cervical spine and respiratory disorders (cervical disc disease, spondylitic ridging, foraminal narrowing and radiculopathy; asthma and pneumonia) from the time of his active duty special work period of service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, the question of whether the Veteran's preexisting cervical disc disease, spondylitic ridging, foraminal narrowing, and radiculopathy, as well as his preexisting asthma and pneumonia, were permanently worsened by his service is a complex medical matter as internal medical processes that are of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n.4 ("sometimes 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"). The testimony of the Veteran on this medical question is therefore not competent. Moreover, to the extent that his testimony is competent, the specific, reasoned opinion of the VA physicians are of greater probative weight than the more general lay assertions of the Veteran. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011) (noting impropriety of the Board categorically discounting lay testimony and requiring the Board to determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence is competent). Conclusion For the foregoing reasons, the evidence clearly and unmistakable reflects that the Veteran's preexisting cervical disc disease, spondylitic ridging, foraminal narrowing, and radiculopathy, as well as his preexisting asthma and pneumonia, were not permanently aggravated by his service. The high burden of clear and unmistakable evidence has been met with regard to both preexistence and lack of aggravation of cervical disc disease, spondylitic ridging, foraminal narrowing, and radiculopathy, as well as his asthma and pneumonia. As the current cervical spine disorder and respiratory disabilities are therefore not due to aggravation of a preexisting disability, entitlement to service connection for cervical disc disease, spondylitic ridging, foraminal narrowing, and radiculopathy, as well as asthma and pneumonia, must be denied. ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a respiratory disorder during active duty special work with the New York Army National Guard from February 12, 2004 to August 31, 2004 is denied. ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs