Citation Nr: 18150917 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 16-18 702 DATE: November 16, 2018 ORDER Entitlement to service connection for Asthma with Chronic Obstructive Pulmonary Disease (COPD) is granted. FINDINGS OF FACT 1. No respiratory disorder was noted when the Veteran was examined in connection with his service enlistment in October 1973. 2. Service treatment records beginning in June 1976, refect treatment for bronchial asthma, which the veteran reported had existed in childhood. 3. The Veteran’s presumption of soundness at entrance into service is not rebutted. 4. The evidence is at least in equipoise as to whether the Veteran's current respiratory disorder, asthma with chronic obstructive pulmonary disease had its onset in service. CONCLUSION OF LAW The criteria for the establishment of service connection for a respiratory disorder, are met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSION This matter comes before the Board of Veterans' Affairs (Board) on appeal from an April 2014 rating decision which denied the benefits sought on appeal. In August 2014, the Veteran filed a notice of disagreement (NOD); in February 2016, the RO issued a statement of the case (SOC); and in April 2016, a substantive appeal (VA Form 9) was received. In October 2016, the Veteran testified at a Board hearing before the undersigned Veteran's Law Judge. A transcript of this hearing is associated with the file. Entitlement to service connection for a respiratory disorder, to include Asthma and COPD. The Board grants entitlement to service-connection for a respiratory disorder as the evidence is at least equipoise with respect to whether the Veteran's respiratory disorder, to include chronic obstructive pulmonary disease (COPD) and asthma, had its onset in military service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110 , 1131; 38 C.F.R. § 3.303 (a). "To establish a right to compensation for a present disability, a Veteran 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'- the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 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. §§ 1111, 1132, 1137. The term "noted" denotes only such conditions that are recorded in the examination reports. 38 C.F.R. § 3.304 (b)(1). The Veteran is entitled to the presumption of soundness upon entrance into service because a respiratory disorder, to include asthma, was not "noted" on the entrance examination report; clear an unmistakable evidence does not show it existed prior to service; and clear and unmistakable evidence does not show it was not aggravated by service. Notably, VA medical professionals have disagreed on whether the condition existed prior to service, and while it is recorded in the service treatment records the Veteran acknowledged a pre-service history of asthma, self-reported medical history concerning childhood maladies does not rise to a level of clear and unmistakable. Finding that the Veteran did not have a respiratory disorder prior to service, the Board turns to the question of service incurrence. Here, the Board notes the Veteran's in-service diagnoses of asthma. In addition, the Veteran has testified he has continued to experience similar respiratory symptomatology. See i.e. April 2009 Alvarado Hospital ER report (“history of occasional episodes of asthma for all of his adult life.”) Although the Veteran is unable to diagnosis respiratory conditions on his own, or to conclusively determine the causative factor leading to his current respiratory health condition, he can relay his respiratory symptoms. Furthermore, as the symptoms of respiratory health disorders include subjective complaints like wheezing, Board finds that the Veteran is competent to provide the details of his lay observation in relation to the disability at issue. See generally Charles v. Principi, 16 Vet. App. 370, 374 (2002). Moreover, as there is no reason to doubt the truthfulness of his reported history, the Board finds it credible. Thus, the record shows an in-service diagnosis of asthma, similar respiratory complaints over the years since service, and a current diagnosis. Moreover, a VA treatment provider has linked the Veteran’s post-service asthma with COPD to service. In this regard, the Board notes the Veteran’s co-morbid diagnosis of neuromuscular respiratory insufficiency which, as identified by the VA examiner, accounts for or exacerbates the Veteran’s current respiratory difficulties. See i.e. April 2014 VA examination. However, the medical evidence of record clearly establishes that the current cervical neuromuscular respiratory related maladies are pre-dated by less severe asthmatic complaints treated with nebulizers like albuterol, as identified by the Veteran’s treating VA medical providers. See i.e. August 2013 VA Primary Care note (“asthma-pt developed asthma in military and it was diagnosed when in military…dyspnea since c-spine surgery and asthma since in military, never smoked – should be SC for asthma (now exac. by recent illness/surgery.”) In these circumstances, the Board concludes that the Veteran’s current asthma with chronic obstructive pulmonary disease was incurred in service. There is an in-service diagnosis; there is current diagnosis of asthma with COPD; the Veteran credibly reported experiencing the symptoms which prompted the in-service diagnosis and the current diagnosis as periodically occurring in the years since service; and a medical provider has associated the Veteran’s current disability with service. Service connection for asthma with COPD is granted. M. E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Marcus J. Colicelli, Associate Counsel