Citation Nr: 21000472 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 11-16 699 DATE: January 5, 2021 ORDER Entitlement to service connection for bronchial asthma is granted. Entitlement to service connection for a back disability is denied. FINDINGS OF FACT 1. Bronchial asthma was not noted at entry to service in October 1977 and the evidence does not clearly and unmistakably demonstrate that asthma preexisted service. 2. Asthma was incurred during service. 3. The Veteran’s T-8 compression fracture clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated by service. 4. The preponderance of the evidence is against finding that the Veteran’s thoracic spine disability, other than T -8 compression fracture, and lumbar and cervical back disabilities began during active service, or are otherwise related to an in-service injury or disease. 5. Arthritis of the spine was not chronic in service or continuous since service. CONCLUSIONS OF LAW 1. The criteria for service connection for bronchial asthma are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 2. The criteria for service connection for back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) in the United States Army National Guard from February 1974 to June 1974 and active duty service from October 1977 to March 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had a hearing before a Veterans Law Judge (VLJ) in April 2012. A transcript of that proceeding has been associated with the claims file. In October 2016 the Veteran was informed that the VLJ who presided at his hearing was no longer employed at the Board. The letter noted that the Veteran could be provided a new hearing if he so wished. Later that month the Veteran's attorney informed the Board that the Veteran did not wish to have another hearing. The Board remanded the issues of bronchial asthma and back disability in an April 2014 decision. Following additional review of the matters the Board issued a decision in December 2016, denying entitlement to service connection for bronchial asthma and remanding the back disability. The Veteran appealed the issue of bronchial asthma to the Court of Appeals for Veterans Claims (Court). In July 2017, the Court signed a joint motion for partial remand (JMPR) of the claim for entitlement to service connection for bronchial asthma. The Court vacated the Board’s denial, citing inadequate reasons or bases for the Board’s findings. The Board remanded the issues of bronchial asthma and back disability in a January 2018 decision. The Board remanded the issues again in November 2018 and July 2020. Service Connection 1. Entitlement to service connection for bronchial asthma The Veteran contends that his bronchial asthma was aggravated by his military service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). A veteran is presumed sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.§ 1111; 38 C.F.R. § 3.304 (b). Accordingly, if no preexisting condition is noted upon entry into service, a veteran is presumed to have been sound upon entry. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The regulations express that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304 (b) and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). Moreover, the defect, infirmity, or disorder must be detected and noted at the entrance examination by a person who is qualified through education, training, or experience to offer medical diagnosis, statement or opinions. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). To be "noted" within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304 (b); see also 38 U.S.C. §1111; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). The Court has held that lay statements by an appellant concerning a preexisting condition are not sufficient to rebut the presumption of soundness. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (stating that a lay person's account of what a physician may or may not have diagnosed is insufficient to support a conclusion that a disability preexisted service); Crowe, 7 Vet. App. at 246 (1994) (finding that supporting medical evidence is needed to establish the presence of a preexisting condition). When no preexisting condition is noted upon entry into service, the Veteran is presumed sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that (1) the Veteran's disability both preexisted and (2) was not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress" of the preexisting condition. 38 U.S.C. § 1153 . If this burden is met, then the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under 38 U.S.C. § 1111, the Veteran's claim is one for service connection. Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The record shows the Veteran has more than one period of service. The Veteran enlisted in the Army National Guard in January 1974. Following the Veteran’s enlistment, he attended initial active duty for training from February 1974 to June 1974, where he was honorably discharged and assigned to his National Guard unit. The record does not reflect the Veteran has any active duty service during his time with the National Guard. The Veteran was discharged from the National Guard under honorable conditions and involuntarily assigned to the Active Army in October 1977. The Veteran was ordered to an active duty commitment for 18 months and 3 days where he served about five months. The Veteran was found medically unfit and discharged from active duty in March 1978 by means of a medical board. The Veteran’s enlistment examination and report of medical history in January 1974 are silent for bronchial asthma. A May 1974 medical examination and report of medical history for the purpose of releasing the Veteran from initial active duty for training to the National Guard is also silent for bronchial asthma. The Veteran’s service treatment records (STRs) do not show any complaints, treatments or diagnosis of bronchial asthma during his active duty for training period. There is also no indication that the Veteran was unable to physically perform. The Veteran’s STRs are also silent for any complaints, treatments or diagnosis of bronchial asthma or indications the Veteran was unable to physically perform following his return to his National Guard unit in June 1974 through his time of discharge from the National Guard in October 1977. The first report of bronchial asthma, shown by the record, is not until the first day of the Veteran’s involuntary active duty assignment in October 1977. The Veteran’s STRs show the Veteran responded yes to asthma on an October 1977 dental questionnaire and during a period of medical treatment was diagnosed with asthma. A radiographic report in January 1978 found a large amount of pleural thickening laterally along the left lower lung field. The report also found severe blunting of the left costophrenic angle. The report indicates these findings are possibly old and could be acute and noted there is no clinical history to be of help. Additional treatment about three days later in January 1978 shows the abnormal chest x-ray is probably secondary to trauma. The Veteran reported a long history of asthma since childhood. Following this treatment in January 1978, the Veteran was placed on a permanent medical profile with limitations of no crawling, stooping, running, jumping, marching, or standing for long periods, no strenuous physical activity, and no physical training (PT). Following this treatment, the Veteran underwent a medical board proceeding in February 1978. The Veteran stated on the February 1978 medical examination that the unit he is in requires a lot of running and all kinds of physical labor which he is unable to do because of his medical problems. The medical board found the Veteran unfit for duty in part due to his asthma. In as early as March 1978, the Veteran asserted entitlement to service connection for bronchial asthma and a damaged lung, reporting that such occurred in March 1978 and 1959, respectively. A November 1978 VA examination report indicates that the Veteran reported he had problems with asthma during the past year, treated with medication; he was diagnosed with, in pertinent part, bronchial asthma. Chest x-ray examination revealed probable residual old inflammatory disease or trauma to the left lower chest, otherwise normal. In a December 1980 statement, the Veteran asserted that he never had any problems with asthma prior to service, that he played basketball and baseball in high school and baseball in college, and that after completing seven-mile runs in the dust and dirt during service, he started having asthma attacks. In an April 2010 statement, the Veteran reported that during his service entrance examination for the National Guard in the 1970s, he was asked about his scar on his right side and he reported to the examiner that he fell out of a tree and landed on a picket fence when he was eight years old. He reported that the examiner asked him if such caused him any trouble and he responded that only if he had a bad cold, that sometimes it was hard to breathe with a bad cold. In another April 2010 statement, the Veteran reported that he fell out of a six-mile run during service and found out he had asthma and only three-fourths of his left lung on the left side where he fell on the picket fence as a child. During his April 2012 Board hearing, the Veteran reported that he was a combat engineer during service, that he built things, did roadwork, and drove trucks, and was considered a foot soldier. He asserted that during service, he fell out of a five-mile run and was told that he had asthma. He reported that in the early 1980s, he had asthma, but during his school years he never had an attack, that he never had a real asthma attack until he had a real bad cold and had a hard time breathing. He reported post-service long-time treatment for asthma, for continued symptoms. When asked if he had any other lung conditions, the Veteran described his childhood accident at eight years old when he fell out of a tree, landed on a picket fence, was hospitalized, cracked his ribs, and punctured “a little bit” of his left lung. He reported that he had a scar, and that “everything was fine,” that he lived normally and played sports. The record contains several statements from people who knew the Veteran prior to service which attest to his athletic ability and their opinion that he did not have any health problems, specifically, asthma attacks, prior to service. The record also contains numerous instances of private and VA post-service treatment for respiratory complaints. VA opinion rendered in August 2019 indicates that the Veteran was diagnosed with asthma. The Veteran reported that he never smoked and first had pulmonary problems as a child and described his injury as discussed above. The Veteran reported that he did not know what was done beyond that of a thoracotomy on the left lower lung and several broken ribs, he thought that part of his lung was removed; the examiner noted that records of such were not available. The Veteran reported that he recovered completely, with a well-healed scar; the examiner noted that over the years, imaging revealed left lower lung field thickening. The examiner reported that the several broken ribs in the left lower thorax from the injury accounts for his minor restrictive defect on PFTs. The Veteran reported that he had asthma as a child but outgrew it and went years without any symptoms, and that he did not remember taking medications for asthma as a child. The Veteran reported his in-service experience running and reported that he began to develop asthma that warranted medical discharge from service. He reported that post-service, he worked in a car dealership and often used breathing treatments. The examiner opined that it was more likely than not that the Veteran had asthma that started as a child and then recurred as an adult, that the asthma did not occur due to service nor was it aggravated therein. The examiner reasoned that the course reported is a natural history of a significant percentage of patients. The examiner opined that the Veteran’s asthma was a preexisting condition and happened to reappear during service and it is less likely that asthma was military-acquired or aggravated therein and more likely such is a common asthma, as such occurs frequently and began when the Veteran was a child. The examiner discussed that having asthma as a child and then outgrowing it only to have it return as an adult is a well-known pattern for asthma and documented in medical literature; that child asthma increases the chance of such progressing to adulthood asthma by 400 percent. In an August 2020 VA addendum opinion, the examiner stated the conditions in the service did aggravate the Veteran’s asthma. The examiner notes the aggravation was temporary and just the normal asthmatic lung response to the military lifestyle with its accompanying atmospheric contaminants, fumes, smoke, dust, and exercise; all of which are well known to aggravate the asthmatic lung. The examiner further stated the Veteran’s pre-existing asthma had not resolved, rather it was reignited by his military service. The examiner noted it is not unusual for asthmatics to have the condition as children and then a period of quiescence only to have their asthma symptoms recur as adults. The Board notes the record shows the Veteran has a current disability of bronchial asthma. The Board finds the evidence does not clearly and unmistakably demonstrate that asthma preexisted service. Asthma was not noted at entry into service. While the October 1977 dental record noted a reported history of asthma, this history does not constitute a notation at entry as lay statements by an appellant concerning a preexisting condition are not sufficient to rebut the presumption of soundness. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability both preexisted service and was aggravated. The evidence does not clearly and unmistakably show that asthma preexisted service as the lay evidence alone is insufficient to show that asthma clearly and unmistakably preexisted service. Additionally, the medical opinions do not provide opinions that asthma clearly and unmistakably preexisted service. As there is no clear and unmistakable evidence that asthma preexisted service, the presumption of soundness is not rebutted and the Board will consider the Veteran's claim as one for service connection, rather than one based on aggravation of a pre-existing condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Board finds that service connection for asthma is warranted. As noted above, the Veteran is presumed sound at entry into service in 1977 and the evidence shows that the bronchial asthma was noted during the period of service. The record also includes a current diagnosis of asthma. The Board notes that VA opinions of record regarding asthma but finds that these opinions are not probative as they did not address the condition under the appropriate legal standard. The claim for service connection for asthma is granted. 2. Entitlement to service connection for a back disability The Veteran contends that his back disability was aggravated by his military service. As noted above in the discussion for service connection of asthma, the record shows the Veteran has more than one period of service. The Veteran served in the National Guard from 1974 to 1977 and completed initial active duty for training in 1974. The Veteran was then involuntary assigned to active duty in 1977 to 1978, where he was discharged by means of a medical board. The Veteran’s enlistment examination and report of medical history in January 1974 are silent for a back disability. A May 1974 medical examination and report of medical history for the purpose of releasing the Veteran from initial active duty for training to the National Guard is also silent for a back disability. The Veteran’s STRs do not show any complaints, treatments or diagnosis of a back disability during his active duty for training period. There is also no indication that the Veteran was unable to physically perform. The Veteran’s STRs are also silent for any complaints, treatments or diagnosis of a back disability or indications the Veteran was unable to physically perform following his return to his National Guard unit in June 1974 through time of discharge in October 1977. The first indication of a back disability is seen in the Veteran’s STRs from January 1978, following his assignment of to active duty in October 1977. During this time the Veteran complained of middle back pain, one week, from pulling a board up and falling into a wall. The record indicates the Veteran presented without neurological changes noted and was provisionally diagnosed with old injury, bothersome while lifting. A February 1978 STR indicates the Veteran presented with back pain with lifting and morning stiffness. At this time the Veteran reported that in 1969 he incurred a back injury while playing baseball at college and fractured his T-8. Physical examination revealed tenderness at T-8, without paresthesias, and a healed compression fracture at T-8. The Veteran was diagnosed with chronic spine pain when lifting, existing prior to service. Medical Board proceedings of February 1978 indicate the Veteran had chronic pain of the thoracic spine that did not occur in the line of duty and existed prior to service. The Medical Board also indicates the Veteran’s spine pain was not aggravated by service. The Veteran asserted entitlement to service connection for a back disability as early as March 1978. He reported occurrence of the back disability in winter of 1966 and winter of 1978. Notably the Veteran’s STRs confirm the injury in the winter of 1978, however; during service the Veteran did not report a back disability in the winter of 1966, he reported the injury first occurring three years later in 1969. During a November 1978 VA examination, the Veteran reported that he strained the lower part of his back while playing basketball in high school and experienced pain off and on since that time. Then in a December 1980 statement the Veteran stated he recovered from his back injury and that the in-service event of falling against the wall is the first time since the recovery he had troubles with his back. He further stated he has had severe problems with his back since. During a March 2011 VA examination, the Veteran reported the onset of his back pain as 1978 and that he had a baseball injury prior to service without treatment. He reported not having problems with his back until he entered service. As noted above, the Veteran’s STRs do not show a back disability when entering National Guard service in 1974. The STRs do show a back disability following entrance to active duty in 1977. The Veteran noted he continued to play competitive softball and had back symptoms, injuries, and falls. He noted surgical treatment of the lumbar spine. He was diagnosed with lumbar pain, status-post fusion. During an April 2012 Board hearing, the Veteran reported that he went to the hospital resultant to his pre-service back sports injury and then wore a brace; and he participated in sports normally afterwards, including college baseball. He reported that he injured his back during service a few times while building things and lifting a lot of weight. He further reported that he had post-service surgical treatment of the neck and low back. The record contains several statements from people who know the Veteran prior to service which attest to his athletic ability and their opinion that he did not have any health problems prior to service. The record also contains numerous instances of private and VA post-service treatment for neck and back disabilities; along with private and VA etiological opinions inadequate to adjudicate the claim. An August 2019 VA opinion indicates the Veteran was diagnosed with degenerative arthritis of the spine, spinal fusion, status-post posterior rod and pedicle laminectomy/fusion T12-S1, degenerative disc disease, herniated disc, lumbar laminectomy L4-5 and L5-S1, thoracic spine wedge compression T8 fracture. The Veteran reported that his back pain began during service, that he first injured his back playing baseball in 1969 at his university, during which he sustained a T8 fracture and wore a brace for a while without further difficulty until service. The examiner reported the Veteran had a long history of continued back problems that required multiple surgeries, however, none of them involved the thoracic spine and all involved the neck or low back without service association. The examiner opined that it was less likely than not that the Veteran has a current thoracic vertebral compression/fracture injury that is related to service, as there is no documentation of such a condition or event during service, that it was more likely than not such was incurred while the Veteran was playing sports at his university. The examiner further opined that it was less likely that the Veteran had any permanent aggravation of a thoracic spine condition during service, that while he had an increase in back pain while lifting, such was acute simple strain without neurological changes found and no evidence that the Veteran sustained further injury to his back during service. The Veteran’s back disability that clearly and unmistakably existed prior to service and was not aggravated during service as there was never another mention of any thoracic spine condition. The examiner discussed that while the Veteran has had extensive back disease, injuries, and surgeries, none of such are related to service, as these problems appeared years later and involved other areas of the spine and there is no evidence in the service records of cervical or lumbar spine involvement. In an August 2020 VA addendum opinion, the examiner stated there is no clear and unmistakable evidence that any of the Veteran’s back conditions pre-existed his entry into active duty except for his T-8 compression fracture which occurred while playing baseball several years before enlistment. The examiner noted the T-8 compression fracture healed, which was reported in the military. All the Veteran’s other back conditions developed years after he separated from the military and are never mentioned or documented in any service records. The Veteran had only one documented service incident involving his back which was his mid-back strain. The Veteran was treated and med boarded. There are no documents found ever mentioning the thoracic strain again after service. The Veteran indicated that after he separated from service his back cleared up after several months and he had no further thoracic spine problems and worked for years without any problems. There is no documented thoracic spine condition following service until 2015, decades following service. In 2015 the Veteran was diagnosed with a muscle strain and age appropriate arthritis. Following the 2015 clinical mention of the thoracic spine, the thoracic spine resolved and has never been clinically mentioned again since. The examiner noted that the Veteran had stated that his in-service thoracic spine strain no longer bothered him within a few months of leaving the service. The Veteran has continued to have a lifestyle containing some level of activity including bow hunting, muzzle loader hunting, and setting up his own corn feeder and blind. This activity has been verified in May 2020 VA treatment records. The Board finds that the weight of the evidence demonstrates that the Veteran T-8 compression fracture clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated by service. As noted above, the service treatment records do not show that a T-8 compression fracture was noted upon entry into service. The most probative evidence demonstrates that the T-8 compression fracture clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated during service. The August 2020 VA examiner concluded that the pre-existing T-8 fracture healed and that there was no clear and unmistakable evidence that the pre-existing T-8 compression fracture was permanently aggravated beyond its normal progression. The examiner explained that while the Veteran had a T-8 compression fracture that healed and allowed him to play active sports and enlist in the service and later, while on active duty in the service, also had a back strain there is nothing in his record that supports a claim that his thoracic back strain from lifting/pulling, which is well documented in his service records, has anything to do with his pre-existing healed thoracic spine fracture in the same general area. A compression fracture is a broken bone (which in this case healed normally and without difficulty). A strain is a soft tissue injury of the muscles, ligaments, or tendons (which also healed completely and normally) and in this case occurred years later. The fact that they occurred in the same general area is not evidence that one caused the other or that they are related. The fact that both healed and resolved completely and without complaints for years and years - even to the current time period - is significant evidence that these conditions have healed without sequelae. The August 2020 examination did not indicate that any other diagnosed spine disability clearly and unmistakably preexisted service. Therefore, the Board must address whether those diagnosed disabilities were incurred in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The evidence shows that the Veteran had had chronic pain of the thoracic spine during service. As such, the Shedden element of an in-service incurrence is satisfied. The Board finds that the weight of the probative evidence demonstrates a spine disability, other than the T-8 compression fracture, is not related to the thoracic pain during service. The August 2020 examiner concluded that the thoracic spine condition was less likely than not related to service. The examiner supported the conclusion with a rationale discussing the evidence as noted above. With regard to the lumbar and cervical spine conditions, the examiner concluded that it was less likely than not that the in-service thoracic muscle strain have any relation to his current cervical and lumbar spine problems except that they all occurred in the spine. There is no mention of any lumbar or cervical injury/trauma/strain, etc, event in his service records. The Veteran’s lumbar problems include an L-1 compression fracture when he feel out of a deer stand. His neck problem was for radiculopathy, etc. His current lumbar and cervical spine problems are due to his age, genetics, trauma acquired as a civilian, lifestyle, and a lifetime of wear and tear and have nothing to do with his military service. There is no mention of any cervical or lumbar condition in his service record. The record shows evidence of arthritis of the spine. the Board finds that weight of the evidence demonstrates that continuity of symptoms since service is not shown. On VA examination in March 2011, the Veteran reported that during service he pulled something in his back and was treated with inactivity until discharge. He reported post service he drove a truck with no freight handling for 6 years with no back complaints He reported about 1981 he fell to the floor while working as an auto salesman because of :disc were completely gone”. While the Veteran has asserted he has had back problems since service, the Board finds that the weight of the credible and probative evidence shows that back symptoms were not continuous since service. His statements as to continuity have been inconsistent and the Board finds that the statement that he has had continuous symptoms are not credible. As such, service connection for spine arthritis on the basis of continuity of symptoms is not warranted. The Board has also considered the Veteran's own assertions that his back disorder was due to service. Because he is a layperson, and the question presented is not one capable of resolution by lay observation, but is medical in nature and requires medical expertise, he is not competent to opine regarding the etiology of his right shoulder disability. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). Accordingly, his opinion regarding the etiology of his back disorder is not probative. (Continued on the next page)   The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 . The preponderance is against the Veteran's claim, and it must be denied. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lang, Attorney Advisor The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.