Citation Nr: 21072699 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-59 280 DATE: December 6, 2021 ORDER Entitlement to service connection for asthma is granted. Entitlement to service connection for bronchitis is dismissed. FINDINGS OF FACT 1. Asthma was not noted upon the Veteran's entry onto active duty; the evidence does not clearly and unmistakably show that asthma preexisted service and was not aggravated by such service. 2. The evidence is at least in equipoise as to whether the Veteran's current asthma had its initial onset during active service. 3. At the May 20, 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew his claim for entitlement to service connection for bronchitis. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for asthma have been met. 38 U.S.C. §§ 1110, 1111, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for withdrawal of the appeal for entitlement to service connection for bronchitis have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 2002 to December 2002. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran testified before the undersigned Veterans Law Judge at a virtual tele-hearing. A transcript of the hearing is of record. The Board recognizes that the Veteran has not appointed a representative and is proceeding in this appeal pro se. Service Connection Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § 1110. 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran is presumed to be 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 and 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 the examination reports are to be considered as noted. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304(b). The presumption of soundness attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The provisions of 38 C.F.R. § 3.304(b) clarify that the term "noted" denotes "[o]nly such conditions as are recorded in the examination reports" and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." See Crowe v. Brown, 7 Vet. App. 238, 245 (1994); see also Cotant v. Principi, 17 Vet. App. 116 (2003). When no preexisting condition is noted upon entry into service, a veteran is presumed to have been found sound upon entry. The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable (obvious or manifest) evidence that the veteran's disability was both preexisting and not aggravated (i.e., increased in severity beyond its natural progression) by service. If this burden is met, then the veteran is not entitled to service connection benefits. However, if the Government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for asthma The Veteran contends that his currently-diagnosed asthma had its initial onset during active duty service. Although the Veteran acknowledges that he was treated for bronchitis as a child, he maintains that he was never diagnosed with asthma or had any breathing problems prior to military service. He specifically asserts that he first developed breathing problems and asthma during basic training after he went through the gas chamber and that these symptoms became worse upon physical exertion. See May 2017 Report of General Information; May 2021 Hearing Transcript. On an April 2002 report of medical history, the Veteran reported a history of bronchitis, but denied a history of asthma, breathing problems, wheezing, shortness of breath, or use of an inhaler. On the report, the military examiner remarked that the Veteran had a history of bronchitis as a child, but that it has resolved. On the April 2002 enlistment examination report, clinical evaluation of the Veteran's lungs and chest was normal and no respiratory system problems were noted in the summary of defects and diagnoses section. The Veteran was found qualified for service. Thereafter, an August 2002 service treatment record shows that the Veteran sought emergency care for symptoms of wheezing and coughing. His past medical history of bronchitis was noted. He was treated for possible asthma. Thereafter, in a September 2002 follow-up, the Veteran was assessed to have a "new diagnosis" of asthma. The Veteran underwent a pulmonary function test (PFT) in October 2002, which revealed mild obstructive disease. He was diagnosed with mild persistent asthma. Due to the Veteran's prior history of bronchitis with shortness of breath, the military physician determined that the Veteran's asthma existed prior to service (EPTS) and initiated a medical discharge on this basis. The Veteran was subsequently granted a medical discharge from the military in December 2002. The Veteran underwent a VA respiratory conditions examination in December 2016. Upon examination, the VA examiner confirmed a current diagnosis of asthma, but opined that the condition was less likely than not incurred in or caused by service. In support of this conclusion, the examiner remarked that "service treatment records clearly indicate that the Veteran had a pre-existing condition of '8 years of shortness of breath and bronchitis,' which he did not declare at entrance exam. It is unclear whether this was asthma or not." The examiner further explained that the Veteran was only in the military a few months before he was discharged for the same symptoms; therefore, the examiner determined that it is more than likely that the Veteran's in-service and current respiratory issues are a continuation of his pre-service respiratory issues. First, after careful review of the evidence of record, the Board finds that asthma (or any other respiratory condition) was not noted on the Veteran's April 2002 enlistment examination report. In this regard, clinical examination of his lungs and chest was normal and the examiner deemed his previous history of bronchitis as a child to be resolved. The military examiner therefore did not record any significant or disqualifying defects or current defects or diagnoses on the report and the Veteran was found fit for duty. Accordingly, the Board finds that the Veteran is entitled to the presumption of soundness with regard to his claim for asthma. 38 U.S.C. §§ 1111; 38 C.F.R. § 3.304(b). Next, the Board notes that in order to rebut the presumption of soundness, VA must show, by clear and unmistakable (i.e., obvious and manifest) evidence, that the Veteran's asthma was both preexisting and not aggravated (i.e., increased in severity beyond its natural progression) by service. The Court of Appeals for Veterans Claims has defined "clear and unmistakable evidence," as used in the governing statutes, to mean evidence that "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258-59 (1999). Here, the Board does not find that VA has met its high burden to rebut the presumption of soundness. In this regard, the Veteran has testified that he did not have asthma prior to military service and asthma was not noted or found upon physical examination at his April 2002 enlistment examination. Moreover, prior childhood symptoms of bronchitis were noted to have resolved. Even if the Board were to assume that the Veteran's asthma preexisted service, the fact that he was found fit for duty, but then developed severe enough symptoms of asthma to require treatment in the emergency room approximately three months after enlistment suggests that there may have been an in-service aggravation of any such preexisting disability. In light of this evidence, the Board cannot find that there is clear and unmistakable ("undebatable") evidence of a preexisting disability that was not aggravated by service. As such, the presumption is not rebutted. See 38 C.F.R. § 3.304(b); Wagner, 307 F.3d at 1096. In making this finding, the Board acknowledges the December 2016 VA opinion of record in which the VA examiner found that the Veteran's asthma preexisted, and was not aggravated by, service. However, this opinion is entitled to no probative weight as the examiner failed to address the presumption of soundness and ignored the fact that no defects or disorders were noted on the April 2002 enlistment examination. Moreover, the examiner's finding that the Veteran did not declare his preexisting bronchitis at the enlistment examination is factually incorrect and suggests that the examiner did not fully review the Veteran's service treatment records. Finally, the examiner did not provide an opinion using the correct legal standard of "clear and unmistakable." Because VA has not met its burden to rebut the presumption of soundness under section 1111, the Veteran's claim becomes one for service connection. Wagner, 370 F.3d at 1096. Here, the objective medical evidence of record shows that the Veteran experienced an onset of symptoms of asthma, and was subsequently diagnosed with mild persistent asthma, during active service. The Veteran has competently stated that his symptoms of asthma first manifested during service after he went through the gas chamber in basic training and these symptoms have continued ever since. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Finally, the Veteran has a current diagnosis of asthma. Significantly, there is no adequate and probative medical opinion contrary to a conclusion that the Veteran's current asthma had its onset in service. Based on the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's current asthma had its initial onset during active service. Therefore, reasonable doubt must be resolved in the Veteran's favor, and entitlement to service connection for asthma is warranted. Accordingly, the Veteran's appeal is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Withdrawal of Claim for Service Connection The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(5). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his authorized representative. Id. Finally, withdrawal must be: 1) explicit; 2) unambiguous; and 3) done with a full understanding of the consequences of such action by the appellant. Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45, 57-58 (2011). At the May 20, 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw from appellate consideration his claim for entitlement to service connection for bronchitis. The withdrawal was explicit and unambiguous, and the undersigned explained to the Veteran the consequences of withdrawing his claim. The Veteran confirmed that he wished to proceed with the withdrawal of the service connection claim for bronchitis. Therefore, as to this issue, there remains no allegation of error of fact or law for appellate consideration by the Board. Accordingly, the Board does not have jurisdiction to review this claim and it is dismissed. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Melissa Barbee, 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.