Citation Nr: 21063158 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 17-31 875 DATE: October 13, 2021 ORDER Service connection for the respiratory disabilities of asthma and chronic obstructive pulmonary disease (COPD) is granted. REMANDED Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to death, the Veteran was diagnosed with asthma and COPD. 2. The diagnosed asthma was related to in-service asthma treatment. 3. The Veteran's COPD is caused by the now service-connected asthma. CONCLUSIONS OF LAW 1. It is not clear and unmistakable that preexisting asthma did not worsen in severity during service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 2. Resolving reasonable doubt in the appellant's favor, the criteria for service connection for asthma have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326. 3. Resolving reasonable doubt in the appellant's favor, the criteria for service connection for COPD, as secondary to now service connected asthma, have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.310, 3.326. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1966 to July 1970. The Veteran died in November 2016. The appellant is the surviving spouse of the Veteran, who is substituted for purposes of adjudicating the issues on appeal to completion. See 38 U.S.C. § 5121A (allowing for substitution in case of death of a claimant who dies on or after October 10, 2008). This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2012 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The instant matter has previously been before the Board on multiple occasions. As the instant decision grants service connection for asthma, which is a complete grant as to that issue, and remands the issues of service connection for COPD and entitlement to a TDIU, the Board need not address remand compliance at this time. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision grants service connection for the respiratory disabilities of asthma and COPD, and remands the issue of entitlement to a TDIU, no further discussion of VA's duties to notify and assist is necessary. 1. Service Connection for Asthma and COPD is Granted Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Service connection may be also granted for disability that is proximately due to or the result of a service-connected disability. An increase in severity of a non service connected disorder that is proximately due to or the result of a service connected disability, and not due to the natural progress of the non service connected condition, will be service connected. Aggravation will be established by determining the baseline level of severity of the non service connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). A veteran will be 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 prior thereto and was not aggravated by service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Where such defects, infirmities or disorders are not noted when examined, accepted, and enrolled for service, pursuant to 38 U.S.C. § 1111 and 38 C.F.R. § 3.304, in order to rebut the presumption of soundness on entry into service, 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. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03. In explaining the meaning of an increase in disability, the United States Court of Appeals for Veterans Claims (Court) has held that "temporary or intermittent flare ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Where a disability is not "noted" at service entrance, a veteran need not produce any evidence of aggravation in order to prevail under the no-aggravation prong of the presumption of soundness; rather, the burden is on VA to establish by clear and unmistakable evidence that it was not aggravated or that any increase in severity was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). "The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition." Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (citing Wagner, 370 F.3d at 1096). This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. See Horn, 25 Vet. App. at 235. Conversely, the burden is not met by finding "that the record contains insufficient evidence of aggravation." Id. Prior to death, the Veteran was diagnosed with the respiratory disabilities of asthma and COPD. Such diagnoses may be found in the report from a November 2012 VA respiratory condition examination. Further, the Veteran's December 2015 Certification of Death lists COPD as a contributory cause of death. Preexistence of Asthma In its July 2019 decision, the Board found that the Veteran's June 1966 service entrance examination records were negative for a diagnosis of asthma at service entrance; therefore, the presumption of soundness attaches and rebutting the presumption of soundness requires clear and unmistakable evidence both A) that the disease or injury existed prior to service and B) that the preexisting disease or injury was not aggravated by service. On the question of preexistence, the Board finds that the evidence is clear and unmistakable that the Veteran had asthma prior to service. Service treatment records from January 1968 and December 1969 reflect that, during service, the Veteran advanced having a ten-year history of asthma symptoms. Further, VA examiners in October 2019 and March 2020 both opined that the Veteran's asthma clearly and unmistakably preexisted service. However, the evidence of record does not clearly and unmistakably show that the preexisting asthma was not worsened in severity during service. Per an October 2019 VA medical opinion, a VA physician opined it was at least as likely than not that the preexisting asthma was aggravated by service. This opinion was based upon a review of the service treatment records, the medical records, and the death certificate. The VA examiner explained that the evidence supporting in-service aggravation of the asthma included an in-service notation that the Veteran was experiencing breathing problems during exercise and in higher temperatures, and the fact that the Veteran was prescribed an inhaler to treat episodes of exacerbation during service. The Board notes that a VA nurse rendered a negative aggravation opinion in March 2020. Nonetheless, considering the positive aggravation opinion discussed above, the Board does not find that this opinion overcomes the high clear and unmistakable evidentiary burden. The October 2019 opinion is sufficient to prevent a finding that the preexisting asthma clearly and unmistakably was not worsened in severity during service. For the above reasons, the Board finds the lay and medical evidence of record is of sufficient probative value to prevent a finding that there is clear and unmistakable evidence that the preexisting asthma was not aggravated during active service; therefore, the presumption of soundness at service entrance is not rebutted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. Direct Service Connection for Asthma When the presumption of soundness is not rebutted, as in this case, the case converts to one for direct service connection. See Wagner at 1096. As discussed above, prior to death, the Veteran was diagnosed with asthma, and during service the Veteran sought treatment on multiple occasions for asthma/respiratory symptoms; therefore, the only question remaining before the Board is whether the currently diagnosed asthma was related to the in-service asthma/respiratory treatment. Having reviewed all the evidence of record, lay and medical, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran's asthma was related to the in-service asthma/respiratory treatment. As discussed above, a VA physician in October 2019 explicitly opined that it was at least as likely than not that the Veteran's asthma was aggravated by service. In rendering this opinion, the VA physician specifically noted that the Veteran had to be prescribed an inhaler during service, and that the symptoms worsened during exercise and in higher temperatures. As this matter has become a question of direct service connection, the Board finds the VA physician's opinion is effectively an opinion that it was at least as likely as not that the Veteran's asthma was incurred in/related to the in service asthma/respiratory treatment. As such, resolving reasonable doubt in the appellant's favor, the Board finds that service connection for asthma is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Secondary Service Connection for COPD Having reviewed all the evidence of record, lay and medical, the Board finds the evidence at least in equipoise on the question of whether the currently diagnosed COPD is caused by the now service-connected asthma. Prior to death, the Veteran received a VA respiratory conditions examination in November 2012. Per the examination report, review of the medical evidence showed that the Veteran then had an irreversible obstruction consistent with COPD. The VA examiner went on to opine that the COPD was likely a progression of/caused by the now service-connected asthma. It was the VA examiner's belief that years of chronic inflammation of the lungs due to the service-connected asthma caused the development of the COPD. The Board notes that in December 2020 a VA examiner opined that it was less likely than not that the Veteran's COPD was related to service. In rendering that negative opinion, the VA examiner noted that the main cause of COPD in developed countries is smoking, and that the Veteran had a seven-year history of smoking; however, at the time of that opinion service connection for asthma had not yet been established, and there is no indication that the VA examiner considered the findings of the VA examiner in November 2012 that the Veteran's COPD was likely a progression of/caused by the now service-connected asthma. Considering the Veteran's decades of asthma versus a seven-year history of smoking, the Board finds the November 2012 VA opinion attributing COPD to the service-connected asthma to be of equal probative value than the December 2020 VA opinion indicating that the Veteran's smoking may have been the cause. In sum, the evidence of record supports that, prior to death, the Veteran was diagnosed with COPD, and a VA examiner in November 2012 opined that the COPD was related to the now service-connected asthma. As such, resolving all reasonable doubt in favor of the appellant, the Board finds that the criteria for service connection for COPD, as secondary to service connected asthma, on a causation basis, have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 2. TDIU is Remanded Prior to death, at a November 2012 VA respiratory conditions examination, the Veteran reported having retired from working as a communications manager for fire rescue due to lung problems. Unfortunately, there is no indication from the record when the Veteran retired, and, to date, VA has not received a completed VA Form 21-8940 (TDIU Claim Form) from either the Veteran or the appellant. A complete TDIU Claim Form would help to develop specific information necessary to decide the TDIU issue. The issue of entitlement to a TDIU is REMANDED for the following action: 1. Provide the appellant with a copy of the VA Form 21 8940 (TDIU Claim Form) with instructions for submission. The appellant is to complete all information requested by this form. The appellant should be informed that failure to complete and submit the TDIU Claim Form may result in denial of the TDIU benefit sought. 2. Readjudicate the issue of entitlement to a TDIU. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, Counsel 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.