Citation Nr: 1751001 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 16-33 074 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for asthma. ATTORNEY FOR THE BOARD J. Whitley, Associate Counsel INTRODUCTION The Veteran served in the Navy from May 1946 to October 1946 during the World War II Era. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2015 decision of the Department of Veteran Affairs (VA) Regional Office (RO) in New York, New York. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a) (2) (West 2014). FINDINGS OF FACT 1. The record does not contain clear and unmistakable evidence demonstrating that the Veteran's asthma both pre-existed his entrance into active duty service, and was not aggravated during service. 2. The lay and medical evidence of record favors a finding that the Veteran's current asthma was incurred during his period of active duty service. CONCLUSIONS OF LAW 1. The statutory presumption of soundness upon entry into active duty service has not been rebutted. 38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304 (2016); VAOPGCPREC 3-2003; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). 2. Service connection for asthma is warranted. The criteria for service connection for asthma have been met. 38 U.S.C.A. § 1101, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts that he has a current asthma condition that was caused or aggravated by his period of active duty service from May 1946 to October 1946. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2016). To establish a right to compensation for a present disability, a claimant 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." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, there is evidence of record suggesting that the Veteran's current asthma problems may have pre-existed his entrance into service. See the Veteran's April 15, 1946 Application for Enlistment into the Naval Service (where the Veteran indicated he had had asthma and lung issues). Significantly, however, the Veteran's May 1946 examination upon entrance into the Navy included a "normal" respiratory evaluation. See the Veteran's May 28, 1946 Physical Examination Report. A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304 (b) (2016). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, 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 VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The Court has held, however, that this presumption attaches only where there has been an entrance examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). In VAOPGCPREC 3-2003, VA's General Counsel noted that "[u]nder the language of [38 U.S.C. § 1111], VA's burden of showing that the condition was not aggravated by service is conditioned only upon a predicate showing that the condition in question was not noted at entry into service." Crucially, if the presumption of sound condition is rebutted, "then the Veteran is not entitled to service-connected benefits." Wagner, 370 F.3d at 1096. "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). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). Because the Veteran's May 1946 entrance examination did not include any notation about a pre-existing asthma condition, the presumption of soundness attaches in this case. Further, as discussed below, because the evidence of record does not show by "clear and unmistakable" evidence that the Veteran's asthma condition both existed prior to service, and that such disability was not aggravated by service, the presumption is not rebutted. Indeed, when specifically asked by the Board to review the record and to determine whether it was undebatable that the Veteran had an asthma condition that had its onset prior to service, an independent medical expert in pulmonology , Dr. R.M., indicated in a September 2017 response letter, that "It is clear and unmistakable (i.e. undebatable) that this Veteran had a diagnosis of asthma prior to his entry into the service. The patient's lay statements of record in 1946 reported that he had a history of asthma. He actually reported an asthma attack 1 year prior to his enlistment." Dr. R.M. also stated that it was "clear and unmistakable" that the Veteran asthma was not aggravated during service. Pertinently however, Dr. R.M.'s rationale leaves room for debate. Indeed Dr. R.M recognized that the Veteran experienced several asthma attacks during service, but noted that there was no indication of any exposures that would have led to long-term aggravation of his asthmatic problem. The examiner stated "it was likely" that the Veteran had similar attacks prior to and after he was in the service," and that it is "certainly possible" the Veteran was predisposed to more respiratory infections at that time causing the in-service attacks. At the end of the report, Dr. R.M. stated, "[the Veteran] certainly had exacerbations of his asthma while in the service primarily related to infections." While seemingly against the claim, the Board is does not find that Dr. R.M.'s opinion, when read as a whole, demonstrates that it is undebatable the Veteran's asthma disability was not aggravated during service. The Veteran has competently described his in-service attacks which, by his own report, were more frequent than prior to service, and his service treatment records demonstrate treatment for such attacks. Moreover, Dr. R.M.'s statement that it is likely the Veteran had similar attacks prior to and after service is more speculative than definitive. As noted above, the clear and unmistakable evidence standard is an onerous standard with a greater evidentiary burden than the preponderance of the evidence standard. Based on the above, the Board does not find that the evidence of record clearly and unmistakably demonstrates that the Veteran's asthma condition had its onset prior to his entry into the Navy AND was not aggravated beyond its natural progression during service. As such, the presumption of soundness in this case remains attached and is not rebutted. See VAOPGCPREC 3-2003; Wagner, 370 F. 3d at 1089. Where the government fails to rebut the presumption of soundness under section 1111, the Veteran's claim must be considered one for service incurrence or direct service connection. See Wagner, 370 F.3d at 1094, 1096 (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). So it is in this case. The Board observes that in a September 2014 letter, Dr. D.M.L., the Veteran's treating physician, stated that the Veteran has significant chronic lung disease most likely based on a lifetime of chronic asthma, and that the condition developed during the Veteran's military service during World War II in the 1940s. Additionally, Dr. R.M. opined that, "If the patient entered the service in sound condition with no previous history of asthma or asthma exacerbations it would be at least as likely has not that his bronchial asthma had its onset in his period of active service." As noted above, it is undisputed that the Veteran has current diagnoses of asthma (Shedden element (1)). It is also undisputed that the Veteran received significant treatment in service for asthma (Shedden element (2)). With respect to Shedden element (3), nexus, based on the fact that the Veteran is presumed to have entered service in sound condition, that he was diagnosed with, and received treatment for asthma in service, that he received regular post-service treatment for asthma and bronchial issues, that a September 2014 letter from the Veteran's treating physician, Dr. D.M.L, indicated that the Veteran's condition developed in service, and that the September 2017 medical expert's opinion similarly linked asthma to service (presuming sound entry), the Board finds that the Veteran's current asthma condition was indeed service-incurred. Shedden element (3) is satisfied, and the benefit sought on appeal is granted. ORDER Service connection for asthma is granted. ____________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs