Citation Nr: 21075230 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 18-32 916 DATE: December 17, 2021 REMANDED Entitlement to service connection for a respiratory disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 16, 1969 to October 23, 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned VLJ in November 2020 and a transcript of that hearing has been associated with the claims file. Entitlement to service connection for a respiratory disability is remanded. The Veteran asserted that service connection is warranted for a respiratory disabilty to include asthma, chronic obstructive pulmonary disease (COPD), and emphysema. The Veteran testified before the undersigned VLJ, that prior to service he was not treated or diagnosed with asthma. He reported that he did experience hay fever prior to service. He also reported that asthma was caused by active service when his training in New Mexico was conducted at a higher altitude and resulted in shortness of breath. A February 2018 statement submitted by the Veteran's mother reported that during the Veteran's active service in 1969, she received a phone call from her son asking if had asthma. She reported that she checked with her son's doctor, who was now deceased, and there were no records of such a diagnosis. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it pre-existed service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd, 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran's asthma pre-existed his military service from September 16, 1969 to October 23, 1969. The Board will review some pertinent facts next. A review of the evidence shows that an August 22, 1969 enlistment report of medical history shows that the Veteran self-reported a history of shortness of breath and chronic cough. The examining physician noted that the Veteran had no history of asthma but did experience hay fever. Importantly, upon clinical evaluation at entrance, the Veteran's lungs were assessed as normal. As such, there is no respiratory condition noted upon enlistment and enrollment into service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). A September 23, 1969 service treatment record shows that the Veteran reported a history of asthma and experienced an asthma attack the previous night. A September 24, 1969 service treatment record reflects a notation of asthma. Then, two days later, a September 26, 1969 service treatment record shows that the Veteran was treated for asthma and prescribed Tedral. Subsequently, a September 30, 1969 outpatient service treatment record shows that the Veteran was in his first week of training and was assessed with asthma. The Veteran was noted to have a lifelong history of asthma characterized by wheezing and shortness of breath and last saw his private physician for treatment in July 1969. Examination was shown to be within normal limits except for bilateral expiratory wheezes. The examination report disposition noted that the Veteran did not meet the procurement standards and was recommended that he meet a Medical Board for consideration of separation from service. A September 30, 1969 letter apart of the Veteran's military personnel records shows that the Veteran signed a letter requesting discharge from service because at the time of induction he acknowledged he did not meet the applicable medical fitness standards for induction. An October 2, 1969 report of medical examination noted that the Veteran was diagnosed with asthma and was determined not qualified for induction in military service. An October 13, 1969 medical board proceeding shows that the Veteran was determined to be medically fit but diagnosed with bronchial asthma which disqualified him for induction into service. The medical board recommended that the Veteran be separated from military service. The Veteran signed the medical board letter indicated that he did not desire to continue on active duty. As noted above the Veteran's entrance examination is absent of any notations of defects, infirmities, or disorders concerning asthma. Additionally, the evidence clearly shows that asthma manifested during active service. Therefore, with respect to asthma, the presumption of soundness attaches. 38 C.F.R. § 3.304(b). Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Here, the Board finds that while medical personnel diagnosed the Veteran with asthma that pre-existed service, this is determination was only based on the Veteran's self-reports. Additionally, the Veteran has submitted a competent lay statement from his mother reporting that he did not have asthma as a child or prior to enlistment to active service. Therefore, the most competent and credible evidence of record illustrates that the Veteran's asthma did not clearly and unmistakably pre-exist service. Therefore, VA has not been rebutted the presumption of soundness. When VA fails to carry its burden as to either pre-existence or lack of aggravation, whether and to what extent the Veteran is entitled to compensation for the injury would be determined upon the assumption that the injury was incurred during service. It does not necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury. The Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service. Horn v. Shinseki, 25 Vet. App. 231, 233 (2012). Based on the foregoing, the Board finds that a VA examination and opinion are necessary to adjudicate this appeal. In this regard, the VA examination of record conducted in November 2017, concluded that the Veteran's asthma clearly and unmistakably pre-existed enlistment to active service. As discussed above, the Board has determined that the Veteran's asthma did not met the legal standard to pre-existed service, so it is premised on incorrect facts. In light of this, the Veteran is to be provided with a new examination to considered whether the Veteran's asthma diagnosed in active service is related to his current respiratory conditions. This matter is REMANDED for the following action: Provide the Veteran with an appropriate examination to determine the etiology of his respiratory disability to include asthma, COPD, and emphysema. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner must provide an opinion regarding whether it is at least as likely as not (probability of approximately 50 percent) that any currently diagnosed respiratory condition to include asthma, COPD, or emphysema had onset in, or is otherwise related to, active military service. Please provide an opinion for each respiratory diagnosis. **The examiner for this opinion, may NOT conclude that asthma pre-existed active service, but must utilized the fact that asthma was first diagnosed in active service and the Veteran's asthma was not noted upon clinical evaluation at enlistment. [See Remand Body above for further explanation.]** A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dworkin, 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.