Citation Nr: 18148744 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-33 472 DATE: November 8, 2018 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for asthma is reopened. Entitlement to service connection for asthma is granted. Entitlement to service connection for bronchitis is granted. FINDINGS OF FACT 1. An unappealed July 2007 rating decision denied entitlement to service connection for asthma on the basis that the Veteran’s asthma pre-existed service and was not aggravated therein. 2. The additional evidence received since the July 2007 rating decision, including service treatment records noting in-service treatment for asthma and a March 2013 VA examination, relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for asthma. 3. The Veteran’s asthma is etiologically related to active duty service. 4. The Veteran’s bronchitis is etiologically related to his service-connected asthma. CONCLUSIONS OF LAW 1. The July 2007 rating decision, which denied the Veteran’s claim of entitlement to service connection for asthma, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017). 2. The additional evidence received since the July 2007 rating decision is new and material, and the claim of entitlement to service connection for asthma is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for asthma have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 4. The criteria for entitlement to service connection for bronchitis, as secondary to asthma, have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to April 1971. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered, or disease contracted, in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must generally 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). Further, service connection may be established on a secondary basis for a disability, which is proximately due to, or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 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 and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111 (2012). 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. The claimant is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). 1. Entitlement to service connection for asthma In this case, the Veteran’s enlistment examination noted a history of asthma. On examination, however, the Veteran’s lungs and chest were found to be normal. As such, the presumption of soundness applies. Further, it was noted that the Veteran’s last episode of asthma occurred when he was 12, approximately 6 years before service. As such, it cannot be said that there is clear and unmistakable evidence that his current asthma existed prior to service. Service treatment records indicate that the Veteran complained of respiratory issues in service. In December 1976, the Veteran presented with shortness of breath and chest tightness. In March 1977, he presented with a cough and scattered wheezing. He was diagnosed with an upper respiratory tract infection with asthma. Therefore, the Board finds that the evidence does not establish, by clear and unmistakable evidence, that asthma condition pre-existed service and was not aggravated in service so as to rebut the presumption of soundness at service entrance. See 38 U.S.C. § 1111; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Post-service treatment records reveal that the Veteran has been continuously treated for asthma and shortness of breath since service. The medical and other evidence of record demonstrates that the Veteran’s current asthma disability is a continuation of the same disease process that has been ongoing since service with no indication that it is the result of an intervening cause. As such, service connection for asthma is warranted. (Continued on the next page)   2. Entitlement to service connection for bronchitis, to include as secondary to asthma Throughout the period on appeal, the Veteran has been consistently diagnosed and treated for bronchitis, to include asthmatic bronchitis. Given the diagnosis of asthmatic bronchitis, and that the Veteran has been consistently treated for bronchitis, asthma, and shortness of breath, the Board affords the Veteran the benefit of doubt and finds that service connection for bronchitis, as secondary to asthma, is warranted. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Brandt