Citation Nr: 21066415 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 16-12 412A DATE: October 29, 2021 ORDER Entitlement to service connection for a heart condition, to include coronary artery disease, is denied. Entitlement to service connection for asthma is denied. FINDINGS OF FACT 1. The Veteran has not had coronary artery disease or any other heart condition at any time during the pendency of the claim. 2. There is clear and unmistakable evidence that the Veteran's asthma pre-existed service, and clear and unmistakable evidence that the preexisting asthma was not aggravated by service. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart condition are not met. 38 U.S.C. §§ 1110, 1112; 38 C.F.R. § 3.303. 2. The criteria for service connection for asthma are not met. 38 U.S.C. § 1111; 38 C.F.R. §§ 3.303(a), 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1972 to October 1973. In January 2020, and again in January 2021, the Board of Veterans' Appeals (Board) remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). In August 2019, the Veteran testified at a Board hearing. The transcript is of record. 1. Entitlement to service connection for a heart condition. The Veteran submitted his claim for service connection for a heart condition in October 2013. On his November 2014 notice of disagreement (NOD) the Veteran asserted that his heart condition began during service. At his hearing the Veteran testified that he had had heart surgery and he said that at that time the doctor told him that he had had a heart problem for a long time. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Service incurrence or aggravation of cardiovascular-renal disease may be presumed to have been incurred or aggravated if the disability is manifested to a compensable degree within one year of the Veteran's discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In this case, there is no presumed service connection because the Veteran did not develop a cardiovascular disorder within one year of discharge. The Veteran's service treatment records (STR) are silent to any complaints or treatment of a heart condition. In January 2012 the Veteran was in a motor vehicle accident (MVA) and injured his descending aorta. The Veteran underwent surgical repair of the resultant descending aortic pseudoaneurysm in January 2012. Following recovery from the surgery the medical evidence contains no complaints or findings of any heart disability. A January 2018 VA treatment record notes that the Veteran did not have coronary artery disease. An April 2020 disability benefits questionnaire (DBQ) notes that the Veteran had no record of heart disease or coronary artery disease. A July 2021 DBQ reveals that the Veteran was examined for a heart condition. The examiner noted that the Veteran suffered a descending thoracic aortic pseudoaneurysm following a blunt aortic injury during a MVA. The examiner reported that the Veteran had a stent graft at the time. She stated that the descending aortic pseudoaneurysm is not considered a heart condition. She further stated that the Veteran does not have a heart condition. The Veteran has considered the Veteran's contentions that he has a current heart condition. Although lay persons are competent to provide opinions on some medical issues, the specific medical questions in this case fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the Board finds that the Veteran's contentions that he has a current heart condition cannot be accepted as competent evidence sufficient to establish service connection. The Board has considered the Veteran's contentions that he has a heart condition aggravated by his service-connected hypertension. However, as the Veteran has not been shown to have a current heart condition there is no heart disability that could be caused or aggravated by his service-connected hypertension. The medical treatment records during the appeal period periodically refer to the Veteran's heart functioning and none of these records indicate any cardiac disability. Furthermore, the July 2021 medical examiner stated that the Veteran does not have coronary artery disease or any other heart condition. In the absence of proof of present disability there can be no successful claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, as the preponderance of the evidence indicates that the Veteran has not had any heart disorder, including coronary artery disease, at any time during the appeal period, service connection for a heart disorder, to include coronary artery disease is not warranted. 2. Entitlement to service connection for asthma. The Veteran submitted his claim for service connection for asthma in October 2013. On his November 2014 notice of disagreement (NOD) the Veteran asserted that his breathing problems started while he was in service. At his hearing the Veteran testified that he had breathing problems prior to service, but asserted that service had made them worse. A Veteran is presumed to have been 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). In other words, "[w]hen no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Board is unable to explain why the January 2020 Board remand decision stated in its Reasons For Remand that the Veteran was entitled to the presumption of soundness regarding asthma, but then directed the agency of original jurisdiction (AOJ) to obtain a medical opinion as to whether or not the Veteran's asthma preexisted service. Regardless, as explained below the Board finds that the evidence clearly and unmistakably shows that the Veteran's asthma preexisted service and was not aggravated by service. The Veteran's October 1971 medical examination report upon entry into service does not reflect that the Veteran suffered from asthma or any respiratory illness upon entry, thus the Veteran is presumed sound upon entry. However, a July 1973 STR notes that the Veteran reported that he had had asthma all of his life, requiring periodic adrenalin injections for several years. He reported that he had been on Tedral in the past but was not on any medications presently. Additionally, an August 1973 STR notes that the Veteran reported that he had had chronic recurrent asthma since age 4 or 5, requiring long term bronchodilator medication and repeated visits to emergency rooms for adrenalin shots. The Board further notes that in February 2020 a VA examiner opined that the Veteran's asthma clearly and unmistakably pre-existed active service. In July 2021 another VA examiner reviewed the medical records and examined the Veteran and opined that the Veteran's asthma clearly and unmistakably existed prior to service. This evidence, along with the Veteran's hearing testimony that he had breathing problems prior to service, is clear and unmistakable evidence that the Veteran's asthma pre-existed service. The Board acknowledges the Veteran's contention that his asthma was worsened (aggravated) by service. He is competent to state that symptoms worsened. The question of whether the worsening symptoms were reflective of an increase in the underlying condition is one that a trained medical professional is better able to identify. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991) (holding 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." The STR show that the Veteran was admitted to an Army hospital due to chronic asthma. An August 1973 Medical Board states that over the past several months, despite adequate medical management, the Veteran had frequent asthmatic episodes requiring repeated visits to the emergency room and to the Internal Medicine Clinic. On every examination the Veteran was found to have marked bilateral bronchospasm with wheezing respirations. The medical board physician recommended discharging the Veteran due to his asthma. He stated that the Veteran's asthma was not significantly aggravated by service. (Continued on the next page) The February 2020 VA examiner reviewed the Veteran's medical history, and examined the Veteran, and opined that there is clear and unmistakable evidence that the preexisting asthma was not aggravated by service. The July 2021 VA examiner also opined that the Veteran's asthma was clearly and unmistakably not aggravated beyond its natural progression by service. She pointed out that the Veteran did not currently require prescribed medication for treatment of his asthma and that he did not report, and the medical records did not show, any treatment for asthma in the past 12 months. The Board finds that the opinions of the inservice medical board physician and the opinions of the February 2020 and July 2021 VA examiners are more probative than the Veteran's assertions that his asthma was permanently worsened by service. In this case the Board finds that the most probative evidence, that of the VA examiners and the inservice physician, show that the Veteran's preexisting asthma was clearly and unmistakably not aggravated by service. For the above stated reasons, the evidence clearly and unmistakably shows both that asthma preexisted service and was not aggravated thereby. Accordingly, service connection for asthma is not warranted. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Jones, 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.