Citation Nr: 1343418 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 12-19 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for bronchial asthma and, if so, whether service connection is warranted for the claimed disability. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission ATTORNEY FOR THE BOARD J. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi that in relevant part denied the above claim. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. A June 1972 rating decision initially denied the Veteran's claim of entitlement to service connection for bronchial asthma; the Veteran did not enter a notice of disagreement within one year of notice of this decision, and it became final. 2. Evidence received since the June 1972 rating decision is new to the claims file, and relates to an unestablished fact necessary to substantiate the claim of whether the Veteran's bronchial asthma is related to service. 3. There is no clear and unmistakable evidence that bronchial asthma preexisted the Veteran's period of active duty. 4. The Veteran's current bronchial asthma first manifested during active duty and has continued to the present day. CONCLUSIONS OF LAW 1. The June 1972 rating decision, denying the claim of service connection for bronchial asthma, is final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 2. New and material evidence has been submitted for the claim of entitlement to service connection for bronchial asthma; the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. Service connection for bronchial asthma is warranted. 38 U.S.C.A. §§ 1110, 1111, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Board finds that VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with adjudication of the claim of whether new or material evidence has been received sufficient to reopen a claim of entitlement to service connection for bronchial asthma, or the underlying claim of service connection for bronchial asthma, given the favorable nature of the Board's decision on both claims. II. New and Material Evidence In May 1972, the Veteran claimed service connection for bronchial asthma. The claim was denied in a June 1972 rating decision, which found there was no nexus between the Veteran's disability and service. The Veteran was notified of the decision the same month. The Veteran did not respond. The Board concludes that the June 1972 rating decision became final. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 20.302, 20.1103 (2013). Under 38 U.S.C.A. § 5108, VA may reopen a previously and finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. 38 C.F.R. § 3.156(a) defines "new and material evidence"; "new evidence" is evidence not previously submitted to agency decision makers, while "material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The new and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The service connection claim for bronchial asthma was denied for lack of a nexus between the Veteran's disability and his military service. To reopen, the new and material evidence must be received which supports this unsubstantiated element of service connection. In a March 2011 VA examination, the examiner diagnosed the Veteran with bronchial asthma, and opined that the current asthma is the same as that experienced while on active duty. Further, in July 2013, the Veteran's representative submitted a statement on his behalf asserting the Veteran has continued to experience symtoms of asthma since service. The Board finds that the evidence is both new and addresses the grounds of the prior final denial, raising a reasonable possibility of substantiating the claim. The Board concludes that reopening is warranted. See 38 C.F.R. § 3.156(a). III. Service Connection The Veteran contends that service connection for bronchial asthma is warranted because he first experienced asthma attacks during service and has experienced asthma symptomatology since service. For the reasons that follow, the Board concludes that service connection is warranted. As will be explained below, evidence of record raises a question as to whether the Veteran had bronchial asthma that preexisted his entrance into active duty in January 1966. Governing law provides that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities or disorders noted at the time of examination, acceptance, and enrollment into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that (1) an injury or disease existed before acceptance and enrollment into service (2) and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2013); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Before the presumption of soundness can be applied, there must be evidence that a disability or injury that was not noted on entrance into service manifested or was incurred in service. See Gilbert v. Shinseki, 26 Vet. App. 48, 52 (2012). Where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the Veteran's entrance examination report, the presumption of soundness operates to shield the Veteran from any finding that the unnoted disease or injury preexisted service. Id. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 111 (West 2002); 38 C.F.R. § 3.304(b) (2013). In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), the United States Court of Appeals for Veterans Claims (Court) clarified that the presumption of soundness only applies where there has been an entrance examination prior to the period of service on which the claim is based. See 38 U.S.C.A. § 1111 (West 2002); Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (holding that the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected" (citing Bagby, 1 Vet. App. at 227)). The record contains evidence that the Veteran experienced bronchial asthma in service. Service treatment records reflect that in September 1966, and January and September 1968, the Veteran reported suffering from asthma attacks and was treated. Since there is evidence that bronchial asthma manifested during active duty, the Board turns to the issue of whether the Veteran was presumed sound at entry into that period of service. Gilbert, 26 Vet. App. at 52. The Veteran underwent a entrance examination in January 1966. The report indicates the lungs and chest were normal upon examination. Further, the Veteran's report of medical history, completed by the Veteran at entrance, indicates he did not suffer from asthma. Therefore, the Board finds the presumption of soundness attaches. In determining whether the presumption of soundness has been rebutted, the Board must next consider whether there is clear and unmistakable evidence that bronchial asthma preexisted the Veteran's service. Evidence supporting that bronchial asthma preexisted service includes a May 1972 VA examination where the Veteran stated to the examiner that he suffered from asthma beginning in childhood. The existence of a condition prior to service reported by the Veteran as medical history does not constitute a "notation" of such condition, but will be considered together with all other material evidence in determining the question of when a disease or disability began. 38 C.F.R. § 3.304(b)(1). The Board finds the Veteran's report of asthma prior to service is not clear and unmistakable evidence rebutting the presumption of soundness. Service connection may be established for a 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 (2013). A disorder may be service connected if the evidence of record shows that the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b) (2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2013). As noted above, in order to establish service connection for a claimed disorder, the following must be shown: (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. Shedden, 381 F.3d at 1167. In the instant case, there is substantial medical evidence demonstrating that the Veteran has a current disability of bronchial asthma. In a March 2011 VA examination, the diagnosis was bronchial asthma. Therefore, the first element of service connection is met. As explained above, there is also evidence that the Veteran experienced bronchial asthma during service, and was treated. Thus, the second element of service connection is also satisfied. The key inquiry in this case is whether the Veteran's current bronchial asthma is etiologically related to the diagnosis of bronchial asthma in service. Shortly after his discharge from service, in a May 1972 VA examination, the Veteran was diagnosed with bronchial asthma. In October, November and December 2002 VA treatment records, the Veteran was treated for asthma. In March 2011, the Veteran was again diagnosed with bronchial asthma and received corresponding treatment at a VA Medical Center. In July 2013, the Veteran's representative submitted a statement reporting the Veteran has continued to have asthma problems since active duty. This supports the contention that the Veteran's current bronchial asthma symptoms are a continuation of symptoms that occurred during service. The contention is further supported by the May 1972 and March 2011 VA examinations, and October, November and December 2002 VA treatment records. Therefore, the third element of a nexus between the current disability and service has also been satisfied. Because each of the three elements required for service connection has been met, service connection for bronchial asthma is warranted. The benefit sought on appeal is granted. ORDER Reopening of a claim for service connection for bronchial asthma is granted. Service connection for bronchial asthma is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs