Citation Nr: 21067409 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-05 072 DATE: November 4, 2021 ORDER Service connection for asthma is denied. FINDINGS OF FACT 1. Preexisting asthma was noted at entry onto active duty service. 2. The preexisting asthma did not increase in severity beyond normal progression during service. CONCLUSION OF LAW The preexisting asthma was not aggravated by service. 38 U.S.C. §§ 1131, 1153, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Army during Peacetime from October 1981 to October 1985. The Veteran filed a claim for compensation for asthma in March 2016. The Agency of Original Jurisdiction (AOJ) issued a Rating Decision in June 2016 denying service connection for the asthma. The Veteran filed a timely appeal; accordingly, the basis of the current decision is the June 2016 Rating Decision. The Veteran requested a hearing before the Board. However, in October 2021, the Veteran's representative indicated that the Veteran wanted to cancel the hearing and requested the Board consider the issue without submitting any additional evidence. Service connection for asthma Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a). In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish an increase in disability during service. If the presumption of aggravation attaches, the burden shifts to the government to show by clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. Id; see also 38 C.F.R. § 3.306(b). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). The presumption of aggravation applies only when pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In this case, preexisting asthma was noted prior to entry onto active duty service. The service treatment records, which appear to be complete, include the service entrance examination from July 1981. The Veteran marked on the entrance examination a pre-service history of experiencing symptoms of asthma and shortness of breath. The separation examination in August 1985 further clarifies that the Veteran has had childhood asthma, with an asthma attack prior to service as late as 1972. After weighing all the evidence, lay and medical, the Board finds that the preexisting asthma did not increase in severity beyond normal progression during service. The July 1981 entrance examination indicated that the Veteran had experienced asthma and shortness of breath prior to entering active duty service. The service treatment records show no treatment, complaints, or symptoms of asthma. The Veteran was treated for left and right ankle injuries, and at numerous times for symptoms of cold and seasonal allergies, such as treatment for a runny nose, need for eye drops, and productive coughing. The service separation examination in August 1985 indicates the Veteran has experienced sharp chest pain with shortness of breath, including a note that the Veteran's last asthma attack was (prior to service in) 1972. The Veteran has not provided any statements, either for treatment or compensation purposes, to the effect that he experienced any symptoms of asthma in service, let alone symptoms worse than before entering active duty service. As the history shows that the last attack of asthma was as a child in 1972, and shows no attacks during service, the weight of the evidence shows that the preexisting asthma did not worsen during service. VA treatment records include treatment in December 2013 and February and December 2015 for asthma, which show the present of asthma but include no suggestion of worsening of asthma in or during service. For these reasons, the Board finds that the weight of the lay and medical evidence demonstrates that the preexisting asthma that was noted upon service entrance did not increase in severity during service, i.e., was not aggravated by service, as defined by 38 U.S.C. § 1153 and 38 C.F.R. § 3.306. Because aggravation of the preexisting asthma by service is not demonstrated, the benefit of the doubt doctrine does not apply, and the claim for service connection for asthma must be denied. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Charles Plambeck 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.