Citation Nr: 21065431 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 09-39 344 DATE: October 26, 2021 REMANDED Entitlement to service connection for bronchial asthma is remanded. Entitlement to non-service-connected pension benefits is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1974 to July 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in San Juan, Puerto Rico. In April 2017, the Board remanded the issues currently on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. See June 2021 supplemental statement of the case. 1. Entitlement to service connection for bronchial asthma is remanded. The Veteran seeks to establish service connection for bronchial asthma. He asserts that he suffered an injury during service in May 1974 when another trainee hit him in the chest, which caused his pre-existing asthma condition to worsen to the point of incapacitation. See, e.g., July 2008 VA Form 21-526. Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Here, the record reflects that the Veteran has been diagnosed with asthma. See, e.g., June 2021 VA examination report. As such, the first element of service connection has been met. A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. In this case, the Veteran's April 1974 service enlistment examination report did not note any abnormalities of the chest and lungs. Therefore, the presumption of soundness applies. 38 U.S.C. §§ 1111, 1132; 38 C.F.R. § 3.304. In order to rebut the presumption of soundness for defects, infirmities, or disorders not "noted" at 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. 38 U.S.C. § 1111; 38 C.F.R. § 3.304; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In May 1974, the Veteran sought in-service treatment for a four-day history of chest pain and shortness of breath. At that time, he reported that he had asthma that started at age 6. During an evaluation in July 1974, he reported that he had difficulty keeping up during basic training, was experiencing frequent wheezing, and could not sleep. In July 1974, he was medically discharged following a Medical Evaluation Board's determination that he had bronchial asthma that preexisted service and was not aggravated by service. The July 1974 separation examination report noted that the Veteran's chest and lungs were abnormal and described findings of "diffuse fine scattered expiratory wheezes." Pursuant to the April 2017 Board remand, the Veteran underwent a VA examination in January 2021. The examiner opined that the Veteran's asthma condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned, in pertinent part, that the Veteran reported that his asthma started at age 8. The examiner reviewed in-service treatment for asthma and concluded that the Veteran's asthma did not have its onset in service or was otherwise related to service, to include reported in-service chest trauma. The Board finds that the January 2021 VA opinion is inadequate because the VA examiner applied the wrong standard in providing the opinion. Specifically, the correct standard (clear and unmistakable evidence) should have been applied because the Veteran's asthma was not noted at service entry. See 38 C.F.R. §§ 3.304(b), 3.380; Wagner, 370 F.3d at 1096. A remand is required in order to obtain an addendum opinion. 2. Entitlement to non-service-connected pension benefits is remanded. The Veteran's claim for non-service-connected pension is inextricably intertwined with the service connection claim that is being remanded. See, e.g., Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on an appellant's claim for another issue). As such, the Board will remand the pension issue as well. These matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran may have received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed to the extent possible, arrange for the claims file to be reviewed by the VA examiner who prepared the January 2021 VA respiratory conditions examination report (or a suitable substitute if that VA examiner is unavailable). If the examiner finds that another examination of the Veteran is required, one should be undertaken. After reviewing the record, the examiner should provide an opinion as to each of the following questions: a. Is it clear and unmistakable (i.e., obvious, manifest, or undebatable) that the Veteran's asthma existed prior to his entry into service? b. If it is clear and unmistakable that asthma pre-existed service, it is also clear and unmistakable that the condition was NOT aggravated (i.e., chronically worsened beyond natural progression) during service? A complete rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Ragheb, 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.