Citation Nr: 1808841 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 14-15 878 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for asthma. REPRESENTATION Appellant represented by: James G. Fausone, Attorney ATTORNEY FOR THE BOARD A. Fagan, Counsel INTRODUCTION The Veteran served on active duty from March 1987 to July 1992, with subsequent Reserve service from July 1992 to July 1994, and National Guard service from August 1994 to May 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. While the Veteran requested a Board hearing in his April 2014 substantive appeal, he subsequently withdrew that request in May 2017 correspondence. Thus, the Board will proceed with adjudication of the appeal. FACTUAL FINDINGS, LEGAL CONCLUSIONS, AND REASONS AND BASES The Veteran contends that he was first diagnosed with asthma during active service in 1987, that he was treated several times for asthma in service, and that he has continued to be treated for asthma since his separation. Service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated by, active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Regulations also provide that service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Taking the foregoing elements in order, the evidence of record, including ongoing VA treatment notes dating since August 2010, reflects that the Veteran has been diagnosed with asthma. The Veteran has also consistently and credibly reported that he was first was diagnosed with asthma in service in 1987, and he is competent to report a diagnosis provided by medical professionals. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) ("[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."). The Veteran's lay statements regarding the onset of asthma in service are further supported by a February 1987 entrance examination, during which the Veteran's lungs and chest were normal and there was noted history of asthma prior to service. Also supportive of the Veteran's assertion is the earliest post-service evidence of treatment for an asthma exacerbation in August 1994, during which time it was noted that the Veteran had a history of asthma, with the most recent attack occurring over one year prior. Such evidence is entirely consistent with the Veteran's report of an onset of asthma during his active duty service from March 1987 to July 1992. And, whereas here the STRs are missing through no fault of the Veteran, the Board has a heightened duty to apply the benefit of the doubt. Thus, the Veteran's lay testimony of first being diagnosed with asthma in service is deemed credible and probative. Finally, regarding nexus, when a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran's testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). If it does, such testimony is sufficient to establish service connection. Id. Here, the Board finds the Veteran's consistent and credible reports that his current asthma began in service and continued thereafter are sufficient to establish service connection in this instance. In so finding, the Board acknowledges that a VA examiner in August 2012 declined to find that the Veteran's asthma was related to service. However, for a number of reasons, the Board finds that opinion to lack any probative value. Foremost, the examiner admittedly did not review the entrance examination, which does not support any finding that the Veteran had asthma prior to service. Additionally, in relying on the fact that the Veteran's August 1994 treatment for an acute exacerbation of asthma occurred two years after separation from service, the examiner ignored the evidence contained in the August 1994 medical record that the Veteran at that time had a history of asthma, with the most recent attack occurring one year prior. Finally, the VA examiner relied upon a notation by an August 2010 VA provider that the Veteran had asthma since childhood, which is not otherwise supported by the record. That notation was made by the VA provider in the assessment portion of the medical record, and the accompanying social history documented as reported by the Veteran in the same medical record does not show a report by the Veteran of asthma since childhood. Nor did the Veteran make any such report of a history of asthma since childhood during his February 1987 entrance examination, his August 1994 Reserve service treatment for asthma, or during earlier private treatment for asthma in 2004. Indeed, the Veteran has consistently reported an onset of asthma in 1987, including during the discussed August 2012 VA examination, as well as on his initial August 2011 claim for benefits, on an October 2011 written statement, on his April 2014 substantive appeal, during a prior January 2012 VA examination, and during ongoing VA treatment. Thus, given the foregoing deficiencies, the Board deems the August 2012 negative VA opinion not probative. In short, in light of the positive and negative evidence of record, the Board finds that the evidence is at least in equipoise regarding whether his current asthma was incurred in service. Thus, affording him the benefit of the doubt, service connection for asthma is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). ORDER Service connection for asthma is granted. ____________________________________________ S. C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs