Citation Nr: 1639588 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 09-27 960 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for exercise-induced (exertional) asthma. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from February 2004 to December 2006. This case initially came before the Board of Veterans' Appeals (Board) on appeal of an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. This case was previously before the Board in March 2016, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. FINDINGS OF FACT 1. The Veteran is presumed sound upon entry to active service. 2. The Veteran has been diagnosed with exercise-induced (exertional) asthma that as likely as not had its onset during his period of active service. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran's favor, exercise-induced (exertional) asthma was incurred in active service. 38 U.S.C.A. §§ 1110, 1111 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Since the entire benefit sought on appeal has been granted, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014)). See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Analysis Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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 Veteran asserts entitlement to service connection for a lung disability, claimed as respiratory problems. Initially, the Board observes that the Veteran has been diagnosed with exercise-induced (exertional) asthma. See March 2016 VA medical opinion. In addition, service treatment records indicate that, in September 2004, the Veteran was treated for a four-month history of shortness of breath during road marching and running, and was treated with a bronchodilator. However, the Veteran's service treatment records do not reflect a diagnosis of a chronic respiratory disability during service. In the March 2016 VA medical opinion, the VA examiner rendered a diagnosis of exercise-induced (exertional) asthma, noting this diagnosis may be made clinically without formal testing based on reports of typical symptoms of wheezing or cough after exercise which improves with bronchodilator therapy. However, the VA examiner opined that, based on the Veteran's reports at a February 2007 VA examination, this condition preexisted the Veteran's active service and, while his symptoms flared up during service, his preexisting disability was not aggravated by active service, noting that there are no reported active symptoms in VA treatment records. For purposes of service connection pursuant to § 1110, 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. 38 U.S.C.A. § 1111 (West 2014). The term "noted" denotes only such conditions that are recorded in examination reports. 38 C.F.R. § 3.304(b) (2015). A November 2003 Report of Medical Examination, completed upon the Veteran's entry to active service, indicate a normal clinical evaluation of the lungs and chest without any notation of a preexisting respiratory disorder. As there is no respiratory disability noted on the Veteran's entrance examination, he is presumed sound at service entrance. 38 U.S.C.A. § 1111. To rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). To satisfy the second requirement for rebutting the presumption of soundness, the government must show, also by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or that (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845 (Fed. Cir. 2006). If this burden is met, then the Veteran is not entitled to service-connected benefits, but may bring a claim for service-connected aggravation of that disorder. In reviewing the evidence of record, the Board finds that there is not clear and unmistakable evidence that the Veteran's exercise-induced asthma preexisted active service. In this regard, the Board again notes the March 2016 VA examiner based his opinion on the Veteran's reported medical history at a December 2007 VA examination. Indeed, at this examination, the Veteran reported that prior to service, he would periodically experience exertional wheezing but rarely if ever used an inhaler. Significantly, however, at service entrance, the Veteran denied a history of shortness of breath, asthma, or any breathing problems related to exercise, weather, pollens, etc. See November 2003 Report of Medical History. In light of these conflicting subjective reports and the absence of any pre-service medical record rendering a diagnosis of a respiratory disorder, the Board finds there is no clear and unmistakable evidence to support a conclusion that the Veteran's exercise-induced asthma preexisted active service. See Wagner, 370 F.3d 1089. If the government fails to rebut the presumption of soundness, the Veteran's claim is one for service connection. In other words, no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322. The March 2016 VA examiner indicates the Veteran experienced exercise-induced (exertional) asthma during service. Furthermore, noting that asthma is not a static condition and that individuals may only have symptoms in the setting of specific environmental triggers, the March 2016 VA examiner indicates that, while he may be asymptomatic, the Veteran continues to suffer from the same disability. Therefore, as the Veteran is presumed sound at service entry, the Board finds that, with resolution of reasonable doubt in the Veteran's favor, service connection for exercise-induced (exertional) asthma is warranted. See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.102, 3.303. ORDER Service connection for exercise-induced (exertional) asthma is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs