Citation Nr: 21073206 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-55 918 DATE: December 7, 2021 ORDER Entitlement to service connection for asthma is denied. FINDING OF FACT The evidence of record is clear and unmistakable that the Veteran's asthma both preexisted service and was not aggravated by service. CONCLUSION OF LAW The criteria for service connection for asthma have not been met. 38 U.S.C. §§ 1110, 1111, 6103, 5103A, 5017; 38 C.F.R. §§ 4.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from September 1967 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in February 2019 and June 2021, and both times the Board remanded the claim for a VA examination. The Veteran testified before the undersigned Veterans Law Judge at a December 2017 videoconference hearing, and a transcript of this hearing has been associated with the claims file. 1. Entitlement to service connection for asthma is denied. In its June 2021 remand decision, the Board found the Veteran's asthma preexisted his entry into service. As referenced in his June 1967 entrance examination, he reported experiencing asthma. A December 1967 report of medical care indicates that he had bad bronchial asthma as a child aged 10 to 12 but has not had problems since then. His asthma was noted as typically acting up with exertion and in a dusty environment. The November 2020 examiner confirmed the Veteran's asthma clearly and unmistakably preexisted service after reviewing the record. As such, this case turns on whether there is clear and unmistakable evidence that the Veteran's asthma was not aggravated beyond its natural progression during active service. The Veteran was afforded VA examinations in November 2020 and July 2021. Although the Board found the November 2020 examiner's conclusion that the Veteran's asthma preexisted service to be probative, the examination was determined to be inadequate because the examiner failed to address the Veteran's lay statements from his December 2017 hearing explaining that his asthma attacks increased after he entered service. In the July 2021 addendum opinion, the examiner noted the Veteran's asthma first onset around 1957, ten years before he entered service. The Veteran's June 1967 entrance examination also noted a history of asthma. The examiner also referenced a November 1967letter from Dr. L. H., the Veteran's care provider, to the draft board detailing an extensive ten-year history of asthma with recurrent exacerbations that prevented the Veteran from participating in high school sports. The June 1969 separation examination again noted the Veteran "had asthma, seasonally, responds to Rx. No comp, no seq.," which the examiner argued demonstrated an overall improvement of asthma during service when compared to the descriptions of his asthma prior to service. Additionally, the examiner noted the Veteran continues to require intermittent treatment since separation from service and currently uses medication for dyspnea and wheezing. The July 2021 examiner opined that the Veteran's asthma clearly and unmistakably existed prior to his service and was also clearly and unmistakably not aggravated beyond its natural progression by his service. The examiner points to the November 1967 letter from Dr. L.H. which documents the Veteran's extensive ten-year pre-service history of asthma that had recurrent exacerbations to the extent that it prevented the Veteran from participating in high school sports. However, the examiner noted that during the July 1969 separation examination, the Veteran's asthma appeared to have improved during his service. Additionally, the examiner noted that although the Veteran reported his asthma attacks becoming worse during service, the objective documentation in the record does not support this claim. Regarding the November 1967 letter referenced by the July 2021 examiner, Dr. L.H. stated that the Veteran "probably should never have been drafted" because of his long-standing history of asthmatic attacks. Dr. L.H. goes on to explain that he was unable to provide this information prior to the Veteran being drafted into service because he was out of the state at the time the Veteran filled out his questionnaire. Dr. L.H. also noted the Veteran's asthma attacks were severe enough to prevent him from playing football in high school The Veteran's VA treatment records show that he is currently being treated for his asthma, including using inhalers to control his condition, and it is noted that his asthma responds well to treatment. Additionally, the Veteran reports that although he experiences some wheezing, he does not experience other asthma symptoms such as shortness of breath or chest tightness. After reviewing the record, the Board finds there is clear and unmistakable evidence both that the Veteran's asthma preexisted service and that it was not aggravated by his service. The November 1967 letter from Dr. L.H. indicates that the Veteran had severe enough asthma prior to service that he was unable to participate in high school sports, and Dr. L.H. even stated the Veteran "should never have been drafted" into service due to the severity of his condition. Additionally, the July 2021 examiner opined that the July 1969 separation examination indicated that the Veteran's asthma had improved during service because it was now primarily seasonal and was well-controlled with medication. Furthermore, although the Veteran provided statements during the December 2017 hearing that his asthma attacks became worse during and after service, the July 2021 examiner explained that the objective evidence of record does not support this claim. While the Veteran is competent and credible to report on the symptoms he experiences, he lacks the training to opine whether his asthma was aggravated by service. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans Court). Accordingly, the Board finds that the evidence establishes that the Veteran's asthma clearly and unmistakably pre-existed his service and was clearly and unmistakably not aggravated by his service. The claim is denied. See Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001) Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, Associate 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.