Citation Nr: 21063356 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 10-04 334 DATE: October 14, 2021 ORDER Entitlement to service connection for asthma is granted. FINDING OF FACT The Veteran is presumed sound and the currently diagnosed asthma is a continuation of the asthma noted in service. CONCLUSION OF LAW The criteria for service connection for asthma have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served under honorable conditions on active duty in the U.S. Army from August 1976 until March 1977. This matter originally came to the Board on appeal from a June 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The procedural history of this case was detailed in the most recent April 2021 Board Remand. Of particular note, the Board has denied the claim twice and the United States Court of Appeals for Veterans Claims (Court) has reversed both denials and remanded the matter for action consistent with the Court's directed finding that asthma was aggravated in service. Since the April 2021 Remand, the matter has been returned for further appellate review. The VA medical opinion obtained following the April 2021 Remand does not comply with the Board's prior remand directives and is inadequate. Nevertheless, the claim is granted herein and there is no need for further remand. 1. Entitlement to service connection for asthma is granted. The Veteran seeks service connection for asthma. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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). 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 (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). When VA fails to carry its burden as to either preexistence or lack of aggravation, whether the Veteran is entitled to compensation for the injury is based on the assumption that the injury was incurred during service. An unrebutted presumption of soundness, however, does not inevitably lead to service connection for the disease or injury. The Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service. Horn, 25 Vet. App. 231, 233. In this case, the Veteran asserts that asthma was aggravated by his period of service due to 5-mile runs and gas chambers exercises. See February 2010 Form 9. It is undisputed by the parties that asthma clearly and unmistakably preexisted service, and the Court directed a finding that the preexisting asthma was aggravated by the Veteran's period of service. See June 2018 Court Memorandum Decision; see December 2020 Court Order. Therefore, VA has not rebutted the presumption of soundness and asthma is legally presumed to be incurred in service. The undisputed evidence also shows a current diagnosis of asthma during the appeal period. See September 2013 VA examination. The question the Board must resolve is whether the current asthma disability is etiologically related to or a continuation of the asthma noted in service. By way of background, the service treatment records (STRs) show normal clinical findings for the lungs and chest upon entrance into service. See August 1976 entrance examination and report of medical history. In January 1977, the Veteran was treated for an asthma attack, and he reported a history of asthma since age 9. A February 1977 STR notes the Veteran continued to have scattered wheezes and difficulty running even with a recently prescribed inhaler. June 2008 VA treatment notes report the Veteran used an inhaler twice a day for his asthma. In his August 2008 claim, the Veteran wrote that he had a very difficult time with his breathing during military training and that his symptoms have only gotten worse over time. It is at least as likely as not that the current asthma is etiologically related to the asthma that was noted in service. VA has not yet obtained an adequate medical opinion that complies with the prior Remand directives. Nevertheless, there is no indication in the record that the currently diagnosed asthma is anything but a continuation of the asthma noted in service. Every VA examiner has discussed the current asthma as a continuation of the Veteran's asthma first noted in childhood. See, e.g., September 2013 VA examination report. The Veteran has consistently reported that his asthma worsened in service, and that those symptoms have persisted over time. Because the Veteran is presumed sound upon entrance as a matter of law, service connection is warranted for asthma as it was legally first noted in service and has continued uninterrupted to the present. Thus, the claim is granted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. M. C. WILSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Smith, 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.