Citation Nr: 1728443	
Decision Date: 07/20/17    Archive Date: 07/27/17

DOCKET NO.  12-25 442	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUE

Entitlement to service connection for asthma.
 

REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K. Fitch, Counsel



INTRODUCTION

The appellant had active service from April 1982 to June 1982.  He also had a period of active duty for training in the National Guard from January to October 1986.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana.

In December 2014 and August 2016, this matter was remanded for additional development.


FINDING OF FACT

The appellant's asthma preexisted his period of ACDUTRA and was not aggravated therein.


CONCLUSION OF LAW

The criteria for service connection for asthma are not met.  38 U.S.C.A. §§ 101, 1101, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.102, 3.303 (2016). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VCAA.

In an August 2009 letter, the RO satisfied its duty to notify the appellant under 38 U.S.C.A. § 5103(a) (West 2014) and 38 C.F.R. § 3.159(b) (2016).  The RO notified the appellant of:  information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the he was expected to provide.  The appellant was informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim.  38 C.F.R. § 3.159 (2016).  VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2014) and 38 C.F.R. § 3.159(c) (2016).  Relevant service treatment and other medical records have been associated with the claims file.  The appellant was also afforded VA examinations in connection with the claim that, taken together, fully address the criteria for deciding the claim.  In this regard, the Board notes that the examiners reviewed the appellant's medical history and claims file and offered reasoned opinions based on a review of the relevant evidence. 

Finally, the Board notes that this matter was remanded in August 2016 in order to afford the appellant an additional medical opinion regarding the claim.  The additional medical opinion dated in September 2016 addressing the Board's remand directives was associated with the appellant's claims file.  As such, the Board finds that there has been substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance."  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

For the foregoing reasons, the Board concludes that no further notice or duty to assist actions are necessary.  Neither the appellant nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).


II.  Applicable Law

Compensation is paid to a Veteran for disability resulting from personal injury suffered or disease contracted in line of duty "in the active military, naval, or air service." 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016).

The term "Veteran" is defined, in relevant part, as "a person who served in the active military, naval, or air service."  38 U.S.C.A. § 101(2); see also 38 C.F.R. § 3.1(d).

The term "active military, naval, or air service" means active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty.  38 U.S.C.A. § 101(24); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991).

Active duty for training (ACDUTRA) includes full-time duty with the Army National Guard of any State under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law.  38 U.S.C.A. § 101(22)(C) (West 2014); 38 C.F.R. § 3.6(c) (2016); see also Allen v. Nicholson, 21 Vet. App. 54, 57 (2007) (holding that in order to have basic eligibility for VA benefits based on a period of duty as a member of a state Army National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States under 10 U.S.C.A. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C.A. §§ 316, 502, 503, 504, or 505); see also Clark v. United States, 322 F.3d 1358, 1366 (Fed.Cir. 2003) (explaining that "members of the National Guard only serve the federal military when they are formally called into the military service of the United States [and that a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor.").

III.  Analysis

The appellant contends that his current asthma was incurred in or aggravated during his service in the National Guard. 

Service treatment records corresponding to the appellant's first period of active duty are negative for pertinent complaints or abnormalities.  December 1981 and March 1982 enlistment examinations showed that his lungs and chest were normal on clinical evaluation.  He was discharged in June 1982 under the trainee discharge program for marginal and nonproductive performance.  A separation examination is not of record.  

In October 1984, the appellant sought a waiver to enlist in the National Guard.  At his November 1984 enlistment medical examination, he indicated that he was allergic to dust but denied a history of asthma.  His lungs and chest were normal on clinical evaluation.  A chest X-ray was negative.  

The record contains a March 1986 Report of Entrance Physical Standards Board Proceedings noting that when the appellant started basic training in January 1986, he started having trouble breathing, shortness of breath, a tight chest, cough, and wheezing, and "[n]ow he can not do push-ups without symptoms or has to drop out of run after 1 to 1 1/2 blocks."

It was noted that the appellant's past history was remarkable for symptoms of trouble breathing, wheezing, coughing, and shortness of breath which had been present since the age of nine.  He had never taken medication or seen a physician though he tired easily.  If he rested, his symptoms would resolve.

The report noted that clinical and laboratory findings included occasional expiratory wheezing in all lung fields.  Pulmonary function testing showed FVC of 82 percent and FEV of 72 percent pre bronchodilator and 84 percent and 89 percent post bronchodilator, respectively.  MMEF was 43 percent prebronchodilator and 72 percent post bronchodilator.  The diagnosis was asthma and the Board determined that the appellant had not met the medical standards for induction and he was separated from the National Guard in October 1986.  

Post-service clinical records dated show treatment for asthma.  In April 2001, it was noted that the appellant had a "long history of asthma."  The diagnosis was asthma exacerbation, hypoxia.  Subsequent clinical records show treatment for periodic asthma exacerbations.  

On examination in February 2013, the VA examiner found that the appellant's asthma clearly and unmistakably existed prior to service, and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness.  As rationale, the examiner related information from the appellant's STRs about his asthma prior to service, and discussed the appellant's asthma since discharge.  The examiner concluded that the appellant "had asthma as a child; he would rest and the attacks would cease.  Currently he has intermittent attacks at least once per year.  Other than the infrequent [flare-up], he does nothing to treat his asthma.  Therefore this examiner must conclude that his [preexisting asthma] was not aggravated [beyond its] natural progression during active duty for training."  

The Board in December 2014 found that this rationale did not explain why the facts of the appellant's history of asthma supported the conclusion that the appellant's asthma was clearly and unmistakably not aggravated beyond its natural progression by service.  The Board found that the examiner did not clearly state that the appellant's current asthma was worse than his pre-service asthma, and found that the examiner should have addressed facts such as the appellant's private treatment records reflecting prescriptions of medication and hospitalization for asthma symptoms, which stand in contrast to his pre-service history of treating his asthma with rest alone.  As such, the matter was remanded for additional examination.  

In response to the Board's remand, the appellant was afforded a VA examination in March 2015 in which the examiner opined that it was less than likely that the appellant's asthma was caused or permanently aggravated by his ACDUTRA military service.  The examiner listed the medical evidence of record and the appellant's statements and found that there was clear and unmistakable evidence that the asthma condition was not caused by or during military service.  The examiner noted that while the appellant reported ongoing asthma symptoms, evidence did not indicate a chronic disease until about 1999.  The examiner opined that since the appellant was only treated once during military service for a lung condition, and since symptoms were not evidenced until more than 10 years after military separation, and since the asthma symptoms fell within the normal progression of the condition, i.e. early onset with abatement during adolescent years only to reappear in late 20-30s, this was clear evidence the condition was not aggravated beyond normal progression by the appellant's military service. 

The matter was again remanded by the Board in August 2016.  The Board found that clarification was required from the March 2015 VA examiner.  Namely, the examiner appeared to base the opinion on absence of treatment until about 1999 and as such the rationale was inadequate because it is symptoms, not treatment, which are the essence of any evidence of continuity of symptomatology.  Savage v. Gober, 10 Vet App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Moreover, the Board specifically instructed in the December 2014 remand that the examiner address whether the appellant's current asthma was, or was not, worse than his pre-service asthma, and found that the examiner should address the appellant's private treatment records reflecting prescriptions of medication and hospitalization for asthma symptoms, which stand in contrast to his pre-service history of treating his asthma with rest alone.  

Additional opinion was provided in September 2016.  The examiner reviewed the Veteran's claims file in detail and concluded that there was clear evidence that the Veteran's asthma was not caused or permanently aggravated by his ACDUTRA military service.  In support of this conclusion, the examiner noted that although service treatment records corresponding to the appellant's first period of active service and the enlistment examinations for his National Guard service showed no indication of asthma, because asthma was a disease of exacerbations, it is very plausible that there were no symptoms or findings present.  When the appellant was found to have asthma in March 1986, it was noted that he had a history of dyspnea, wheezing, coughing, and trouble breathing since the age 9 without need for treatment.  The examiner indicated that this was strong evidence that the asthma condition had started in childhood and was also consistent with post-service clinical records noting a long history of asthma.  The examiner further noted that the post-service clinical records showed treatment for episodic asthma exacerbations which was consistent with the normal and natural progression of childhood asthma of abatement or development of subclinical symptom-free periods during the adolescent years with return of increased symptomology starting in the late 20's or 30's.  Since normal progression of childhood asthma includes increasing symptoms with aging, the appellant's post-military asthma condition, including treatment with medication and periods of hospitalization, is most certainly within the realm of normal progression.  Moreover, the appellant was only treated once during military service for a lung condition, and while he reports ongoing symptoms after separation, this, according to history reported by the appellant and the clinical evidence, required the same treatment of symptoms he had prior to active duty:  no medical intervention, just rest, until many years after service.  The examiner indicated that since the appellant did not require medical intervention beyond rest until more than 10 years after service separation, and since the increased asthmatic symptoms fall within the normal progression of this lung condition, i.e. early onset with abatement during adolescent years only to reappear in late 20's to 30's, the evidence supported the conclusion that his current pulmonary condition did not represent a condition which was aggravated beyond normal progression by military service.  Therefore, the examiner concluded that the evidence indicated that the Veteran's current asthma was not caused or permanently aggravated by his ACDUTRA military service. 

After reviewing the record in its entirety, the Board concludes that the preponderance of the evidence is against the claim of service connection for asthma.  

As a preliminary matter, the Board notes that evidentiary presumptions, including the presumption of sound condition at entrance to service and the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, do not extend to those who claim service connection based on a period of active duty for training or inactive duty training.  Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to a claim where the Veteran served only on ACDUTRA and had not established any service-connected disabilities from that period); see also McManaway v. West, 13 Vet. App. 60, 67 (1999) vacated on other grounds sub nom. McManaway v. Principi, 14 Vet. App. 275 (2001) (noting that "if a claim relates to period of active duty for training, a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim").

The Board concludes that the record in this case shows that the Veteran's asthma existed prior to his period of ACDUTRA and was not aggravated therein.  As discussed in detail above, the medical professionals who have provided opinions in this case have consistently concluded that that the Veteran's preexisting asthma was not aggravated during ACDUTRA beyond the natural progression of the disease.  There is no competent or probative clinical evidence which contradicts this finding.  Donnellan v. Shinseki, 24 Vet. App. 167, 173 (2010) (holding that a claim for benefits based on aggravation of a preexisting condition during active duty for training requires a claimant to show evidence "both that a worsening of a condition occurred during the period of active duty for training and that the worsening was caused by the period of active duty for training.").  

In light of the above, the Board finds that the preponderance of the evidence is against the claim of service connection for asthma.  Thus, the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56  (1990).  



ORDER

Entitlement to service connection for asthma is denied.





____________________________________________
K. CONNER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs