Citation Nr: 21001280 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 15-18 603 DATE: January 7, 2021 ORDER Entitlement to service connection for asthma is denied. FINDING OF FACT The preponderance of the evidence is against finding that asthma began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for asthma have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1981 to August 1985 and from August 1985 to May 1988. The Veteran’s service from August 7, 1985 to May 1988 is not qualifying for VA purposes. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in February 2018. A transcript of the hearing is associated with the Veteran’s claims folder. This matter was previously remanded for further development by the Board in November 2018 and July 2020 decisions which disposed of other matters previously before the Board. The requested development has been completed and this matter has been returned to the Board for further consideration. 1. Service connection for asthma The Veteran contends that service connection is warranted for asthma. 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 question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. A Veteran is presumed to be in sound condition when examined and accepted into the service except for defects or disorders noted when examined and accepted for service. 38 U.S.C. §§ 1111, 1137. 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. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). “Clear and unmistakable evidence” is a more formidable evidentiary burden than the preponderance of the evidence standard. See Anderson v. West, 12 Vet. App. 254, 258 (1999) (noting that the “clear and convincing” burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of “clear and unmistakable evidence”). That is, the standard of proof for rebutting the presumption of soundness is not merely evidence that is “cogent and compelling, i.e., a sufficient showing, but evidence that is clear and unmistakable, i.e., undebatable....” Id. at 261. It is an “onerous” evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be “undebatable.” Cotant v. Principi, 17 Vet. App. 116, 131 (2003) (internal citations omitted). In the present case, the Veteran’s July 1980 entrance examination revealed no lung or chest disorders, and he denied symptoms of, or treatment for, asthma. An undated respirator screening checklist also noted his history of asthma and he reported sometimes having difficulty breathing during over exertion. However, although he was at times treated for upper respiratory infections during his honorable period of service including in March 1983, June 1983, the service treatment records disclose no diagnosis of asthma and the reenlistment examination in January 1985 and the accompanying January 1985 report of medical history were negative for significant lung findings or history of asthma. Records immediately following the Veteran’s honorable period of service beginning in August 1985 include an August 1985 report of medical history that was negative for asthma. The treatment records fail to disclose a formal diagnosis of asthma, although he was treated for bronchitis multiple times including in March 1987, February 1988 with symptoms that included dyspnea. See 128 pg. STR received 4/8/2014 at pg. pg. 9, 17, 37, 50, 57, 59, 63. A chest X-ray in September 1986 to rule out pneumonia and in March 1987 for complaints of dyspnea were noted to be negative for any significant findings. During the Veteran’s April 1988 separation examination, no clinical chest or lung disabilities were noted. However, the Veteran did endorse asthma and shortness of breath. The examiner subsequently indicated that the Veteran experienced asthma as a child. In his hearing testimony the Veteran denied that asthma pre-existed service via his representative and he indicated that he first noticed difficulty breathing in service. Specifically, he noted that it was becoming harder to breath when exerting himself, including when serving on the flight deck between 1982 and 1985. He also alleged that he was exposed to second-hand smoke although not a smoker himself. He alleged that his asthma may be linked to such exposure to secondhand smoke. He indicated that he was diagnosed with asthma in 1999. Transcript pg. 12-17. After a review of the record, the Board finds that the Veteran should be afforded the presumption of soundness. In this regard, the Veteran’s enlistment examination does not note a diagnosis of asthma. Therefore, VA has the burden of proving, by clear and unmistakable evidence, that the Veteran’s asthma pre-existed service. The Board finds that VA has not met this burden. While the Veteran’s separation examination (from a period outside his honorable service) did indicate that he was diagnosed with asthma prior to enlisting in the military, there is no basis in the record for this finding. Given that the Veteran’s chest and lungs were found to be clinically normal during his entrance and separation examinations, the Board finds that the evidence does not establish that he was diagnosed with chronic asthma prior to entering service. Therefore, the Board finds that the presumption of soundness applies, and the Veteran shall be considered to have been in sound condition at the time of his enlistment. Having established that the presumption of soundness applies, the Board must determine whether the evidence currently of record demonstrates entitlement to service connection. In this regard, a VA medical opinion was obtained in April 2020, wherein the examiner was directed to assume that asthma preexisted service. As the Board has concluded that the presumption of soundness applies, the Board finds that the April 2020 VA examiner was erroneously directed to presume that asthma preexisted service. As such, the Board finds that a new VA medical opinion is needed to address the issue of service connection for asthma. The Board concludes that, while the Veteran has a diagnosis of asthma, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. Private treatment records disclose treatment for a diagnosis of asthma shown as early as October 2005 and November 2005. Other records from December 2005, March 2006 and September 2006 diagnosed chronic obstructive pulmonary disease (COPD). In April 2006 he was diagnosed with seasonal allergies. Other records from 2006 include records diagnosing asthma in October and November 2006 when he was treated for cold symptoms. The diagnosis of asthma was noted in a private record for medication refills in May 2008 and was repeatedly noted in records treating upper respiratory infection symptoms and bronchitis in October 2008. VA treatment records from 2012 to 2020 disclose ongoing treatment for a diagnosis of asthma. The records from June 2012 revealed a history of mild asthma with lung examination normal including on X-ray, and he was prescribed MDI/Albuterol. Records from January 2013 treating upper respiratory symptoms noted a diagnosis of asthma, while in December 2013 he was noted to have asthma treated with Proventil a few times a day. In February 2014 he was treated for dyspnea on exertion with a need for rescue inhaler only on heavy exertion. His asthma was described as well controlled with Symbicort in April 2014, with rare use of albuterol. He continued to have asthma symptoms such as shortness of breath noted in May 2014. Records from November 2014 and September 2015 noted asthma among chronic medical issues. In June 2016 the Veteran was treated for asthma with dyspnea on exertion including on walking one flight of stairs, and occasional dry cough. He was noted to have a history of heavy secondary tobacco exposure for 6 years, but this record did not indicate when such exposure took place. Chest X-rays from the same month disclosed no acute abnormality. The Veteran continued to have asthma listed among chronic medical issues including in January 2017 and March 2018 with the records showing regular usage of Symbicort. In March 2009 he was treated for symptoms of productive cough and congestion that he described as similar to prior episodes of bronchitis, with an assessment of asthma exacerbation with likely viral upper respiratory infection. Records from May 2019 and January 2020 noted a past medical history of asthma. None of the records addressing treatment for asthma contained any competent medical evidence showing a link between the asthma and his period of active service. The report of an April 2020 VA examination opinion confirmed review of the Veteran’s claim folder. The examiner gave an opinion that asthma clearly and unmistakably existed prior to service. In providing the rationale, the examiner stated that the active duty service treatment records (STRs) do not document or support any treatment for asthma. The examiner further stated that STRs do not support any “worsening” of asthma. In support of the unfavorable opinion that the asthma clearly and unmistakably existed prior to service, the examiner pointed to the April 20, 1988, separation Report of Medical History notes “Asthma - as child - NCD”, which the examiner determined supports no aggravation of the asthma condition. Additionally, the examiner noted that treatment records reviewed support ongoing, “stable” asthma and does not support aggravation of the asthma condition. The examiner further indicated that there was no other respiratory disability identified besides asthma. The examiner stated that the current asthma condition is less likely than not “the same disease process shown in service.” The current asthma condition, whether or not it was a pre-existing condition prior to service, is less likely than not related to or incurred in service. In the rationale, the examiner stated that the STRs do not identify asthma condition and are silent for treatment of asthma. Asthma was only noted at separation on April 20, 1988, Report of Medical History that notes “Asthma - as child - NCD”, and thus it is not incurred in service. The examiner stated that there is no “disease process shown in service” that is consistent with asthma identified. The report of an August 2020 VA examination addendum by the April 2020 examiner to further clarify the question of service connection on a direct basis confirmed review of the Veteran’s claim folder. The examiner opined that it is less likely than not that the Veteran’s asthma is related to his active duty service. The examiner reasoned that the STRs were silent for treatment of an asthma condition while on active duty. The examiner did note that an April 20, 1988 Report of Medical History noted a history of “Asthma - as child - NCD” and also noted that the Separation Report of Medical Examination Apr 20, 1988 is silent for asthma. The examiner noted that records support that veteran had asthma “as child” and then was also diagnosed and treated for asthma after active duty service. The examiner stated that STRs do not support an asthma condition in active service, or linked to active service. The examiner further referred to the additional, prior VA examination opinion from April 2020. The Board finds probative the April 2020 opinion, which was further clarified by the August 2020 addendum finding that it is less likely than not that the Veteran’s current asthma disability was incurred in service or was otherwise caused by any incident in service. The opinions were accompanied by adequate rationale and no competent medical evidence contradicts this opinion. The examiner had access to and reviewed the claims file. The Veteran’s subjective history was reviewed. Thus, the Board accords significant probative weight to these opinions based as they collectively were on full consideration of the Veteran’s documented history and assertions, and supported by clearly stated rationale. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)) and Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (holding that the credibility and weight to be attached to medical opinions are within the province of the Board). Neither the Veteran nor his representative has presented or identified any contrary, competent evidence or opinion-i.e., one that, in fact, supports the claim. To the extent that the Veteran believes that his asthma is related to service or an in-service incident, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. In this regard, the etiology of the asthma is a matter that requires medical training and expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of sleep apnea is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Board finds the opinions of the VA examiner to be significantly more probative than the Veteran’s lay assertions. In light of the foregoing, the Board concludes that entitlement to service connection for asthma is not warranted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Eckart 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.