Citation Nr: 18149818 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 16-12 514A DATE: November 13, 2018 ORDER Service connection for asthma is denied. FINDING OF FACT The Veteran’s asthma is not linked to disease or injury incurred or aggravated in active service. CONCLUSION OF LAW The criteria for service connection for asthma are not satisfied. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to October 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 1. Service connection for asthma is denied. A. Law Service connection will generally be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the evidence must show (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 252 (1999). A veteran is 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 evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304(b) (2017). When the claimed disability is noted on entry intro active service, service connection may only be established based on aggravation of the disorder beyond its natural progression during active service. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2017). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). A history of preservice existence of conditions recorded at the time of entrance examination does not constitute a notation of such conditions, but will be considered together with all other material evidence in determinations as to inception. Id. A pre-existing disease or injury noted at entry will be presumed to have been aggravated by service if the evidence shows that the underlying disability underwent an increase in severity during that time. Townsend v. Derwinski, 1 Vet. App. 408 (1991); 38 C.F.R. § 3.306(a); but see Green v. Derwinski, 1 Vet. App. 320, 323 (1991) (observing that a flare-up of symptoms during service does not necessarily constitute evidence of aggravation of the underlying disorder). In that case, the presumption of aggravation may only be rebutted with clear and unmistakable evidence, including evidence that the increase was due to the natural progress of the condition. 38 C.F.R. § 3.306(b). If the evidence does not show a worsening during service, then the burden is on the Veteran to show aggravation. Id. (providing that aggravation may not be established when all the evidence of record shows that the disability underwent no increase in severity during service); see Falzone v. Brown, 8 Vet. App. 398, 402 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. B. Analysis The Veteran states that he had a pre-existing asthma condition that was aggravated by active service. See May 2014 Veteran Supplemental Claim; May 2015 Notice of Disagreement (NOD). He states that he was diagnosed with asthma during service, and that his asthma worsened during and since service. Id. For the following reasons, the Board finds that service connection is not established. The service treatment records do not show that the Veteran’s asthma manifested during active service. The November 1966 pre-induction examination reflects that the Veteran reported a history of asthma. Infantile asthma was noted in the physician’s summary section, as well as wheezing in the lung. The January 1998 induction examination shows that the Veteran’s lungs and chest were clinically evaluated as normal. In the report of medical history, he indicated a history of asthma, shortness of breath, and pain or pressure in the chest. The physician’s summary section again reflects a finding that the Veteran had infantile asthma, and occasional chest discomfort with exertion. The Board finds that while the Veteran had a reported history of asthma at entrance into active service, an asthma condition was not noted at entrance. See 38 C.F.R. § 3.304(b) (only such conditions as are recorded in examination reports are to be considered as noted). In this regard, the sole fact that a history of asthma was recorded at entrance does not show it was noted at the time. See id. The service treatment records do not show that the Veteran was diagnosed with asthma during service. The October 1969 separation examination report shows that the Veteran’s lungs and chest were clinically evaluated as normal. In the October 1969 report of medical history, the Veteran indicated that he had a history of shortness of breath, which echoes the January 1968 induction report of medical history. The physician’s summary section simply notes “EPTS” (i.e. existing prior to service). The Veteran’s statement in the May 2015 NOD that he was diagnosed with asthma during service is not sufficient to establish the fact. His statements make it clear that he was not referring to a diagnosis that may not have been recorded in, or otherwise missing from, the service treatment records. Rather, he specified that he was diagnosed in the November 1966 pre-induction examination report, and in the January 1968 induction examination report. Neither of these reports shows that asthma was diagnosed during service, but rather that a history of asthma was noted prior to and at induction into service. Even if they are considered to show current diagnoses, the diagnoses occurred prior to or at entrance into active service, and thus do not show diagnoses during the Veteran’s active service period. Accordingly, the Veteran’s statements do not establish that asthma was diagnosed during service. The fact that the only diagnoses he referred to in his May 2015 statement occurred prior to or at entry into active service, and that the service treatment records do not show diagnoses of asthma or another respiratory condition (or other findings or prescriptions that might indicate such a condition) weighs against a finding that he was diagnosed with asthma during service. The Veteran’s unsupported statement that his asthma worsened during service is not sufficient to show that it manifested in or was aggravated during active service. While the Veteran is competent to report experiencing worsening asthma symptoms during service, there is no supporting evidence. The absence of evidence does not necessarily constitute substantive negative evidence. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Rather, there must be a proper foundation to determine that silence in the record has a tendency to prove or disprove a relevant fact. Fountain v. McDonald, 27 Vet. App. 258, 272 (2015); Horn v. Shinseki, 25 Vet. App. 231, 239, n.7 (2012). Nevertheless, the Board is not therefore required to accept as sufficient evidence of a fact whatever a claimant may say in support of the claim solely because the absence of evidence does not permit a credibility assessment, or because the claimant has not identified or submitted evidence that would aid in that assessment. Otherwise, the combat presumption would be superfluous. See 38 U.S.C. § 1154(b) (2012); 38 C.F.R. § 3.304(d) (2017). There is no indication that there are missing records or other items of evidence that would support a finding that the Veteran’s asthma manifested in or worsened during active service. The service treatment records reflect numerous entries for various health conditions, but do not show diagnoses of asthma. They show that in February 1968, the Veteran reported shortness of breath when running, as well as a burning in his stomach when exercising. His lungs were noted as clear at the time. He was not diagnosed with asthma or a respiratory condition. A December 1968 entry reflects that the Veteran reported coughing up phlegm and inability to breathe deeply. It was noted that the Veteran was smoking a pack per day, and he was advised to stop smoking. These records do not show diagnoses of asthma or a respiratory condition. As noted above, the Veteran’s lungs and chest were clinically evaluated as normal at separation. The service treatment records also do not reflect that the Veteran was prescribed an inhaler or other medication that might indicate a finding of asthma or a similar respiratory condition. The post-service private and VA treatment records also do not indicate that the Veteran’s asthma manifested in or worsened during service. Accordingly, the preponderance of the evidence shows that the Veteran’s asthma did not manifest in active service. Even if the Veteran’s asthma were considered noted at entrance, in the absence of evidence of worsening, the presumption of aggravation does not apply. See 38 C.F.R. § 3.306 (2017). When the evidence does not show a worsening during service, then the burden is on the Veteran to show aggravation. See id. The Veteran has not met this burden, as the service treatment records and post-service treatment records do not support a finding that the Veteran’s asthma manifested in or worsened beyond its natural progression during service. For the sake of argument, the Board also notes that even if the Veteran’s February 1968 report of shortness of breath while running could be considered a transient flare-up of symptoms of asthma, this alone does not show aggravation during service. See Green v. Derwinski, 1 Vet. App. 320, 323 (1991). Occasional chest discomfort with exertion, and the Veteran’s history of shortness of breath, were noted at entrance. Thus, his report of shortness of breath while running does not show worsening symptoms, but the same symptoms he reported at entrance. The service treatment records do not show subsequent complaints of shortness of breath, apart from a one-time complaint of inability to breathe deeply in the context of a cough almost a year later. The fact that the service treatment records do not show that the Veteran’s shortness of breath continued or worsened weighs against a finding of aggravation or worsening symptoms. In sum, the Board finds that service incurrence or aggravation of a disease or injury is not established, as the evidence shows that the Veteran’s asthma did not manifest in or (if it is considered noted at entrance) worsen during service. Accordingly, the criteria for service connection are not satisfied. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a). In the alternative, the record does not show that the Veteran has been diagnosed with asthma during the pendency of this claim. The VA treatment records show diagnoses of chronic obstructive pulmonary disease (COPD), but not asthma. This further weighs against a finding of incurrence or aggravation of asthma during service. (Continued on the next page)   Because the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. 5107; 38 C.F.R. § 3.102. J. Rutkin Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Sinckler, Associate Counsel