Citation Nr: 21075493 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-62 415A DATE: December 20, 2021 ORDER Entitlement to service connection for a respiratory disorder is denied. FINDING OF FACT The evidence in the record clearly and unmistakably shows that the Veteran's asthma existed prior to his service and clearly and unmistakably shows that it was not aggravated beyond the normal progression of the disease by his service. The preponderance of the evidence indicates that no other respiratory disorder was diagnosed or had its onset during service. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory disorder have not been met. 38 U.S.C. §§ 101, 1110, 1131, 1153, 5107(b); 38 C.F.R. §§ 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1974 to November 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified before the undersigned at a hearing via videoconference. A transcript of his testimony has been associated with the claims file. Service Connection The Veteran asserts that he is entitled to service connection for chronic obstructive pulmonary disease (COPD), which he developed because of asthma. More specifically, he testified that he is entitled to service connection because he did not have problems breathing before enlisting in the Army, but first began having trouble breathing during basic training and was diagnosed with asthma in service before being medically discharged. The Board has broadened the characterization of his claim on appeal as a claim for a respiratory disorder, however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Service connection may be granted if there is a disability resulting from personal injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish service connection, the evidence must show (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Here, post-service treatment records clearly reflect treatment for asthma and COPD. The next question for the Board is thus whether his respiratory conditions had their onset in or were aggravated during service. Before turning to this question, the Board notes that every veteran who served in the active military, naval, or air service after December 31, 1946, is taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C. §§ 1111, 1137. Only those conditions recorded in examination reports can be considered as "noted," 38 C.F.R. § 3.304(b), and a history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304(b)(1). Where a condition is not noted at entrance into service and the presumption of soundness is not rebutted, the Veteran's claim is one for service connection. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If, however, the presumption of soundness attaches but is then rebutted, service connection must be denied. To rebut the presumption of soundness for conditions not noted at entrance into service, VA must show by both clear and unmistakable (obvious and manifest) evidence that (1) the disease or injury existed prior to service, and that (2) the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003); 70 Fed. Reg. 23,027 (May 4, 2005); Wagner 370 F.3d at 1096. Here, the Veteran's September 1974 enlistment examination is silent for any complaints related to asthma or any notations documenting asthma. As such, the presumption of soundness attached, and the Veteran is presumed to be sound upon entrance to active duty in October 1974. As set forth above, however, the presumption of soundness can be rebutted where there is clear and unmistakable evidence that a disorder both pre-existed service and was not aggravated in service. In this case, the most competent and credible evidence in the record shows that the Veteran's asthma clearly and unmistakably pre-existed his military service. To that end, although his September 1974 enlistment examination included no notation of asthma, the Veteran reported to sick call 11 days after entering service due to an asthma attack. He was in his first week of training but complained of a history of asthma and reported having symptoms at night. Wheezing was present on physical examination. In an undated medical form, an examiner listed the chief complaint and duration as "asthma x all life." Subjective symptoms included malaise, a runny or stuffy nose or sneezing, a cough that was productive of sputum, shortness of breath, and wheezing. The portion of the form that listed medications indicated that he was taking Tedral tablets, which were commonly used for treating asthma. He was referred to N.S. for possible medical board proceedings. In the narrative summary of a clinical record from October 1974, N.S., a medical board member, noted that the Veteran was currently in his first week of basic training at Fort Polk and that his chief complaint was that he had asthma, with a history of childhood asthma since late infancy. The Veteran reported that he was under the care of Dr. M. in Long View, Texas, for this condition. The Veteran told N.S. that he developed paroxysms of cough, dyspnea, sputum production, and wheezing, especially at night and with any kind of exertion, including running. Since being at Fort Polk, he reported that he had had one episode where he developed typical symptoms after running. He presented to sick call with dyspnea at rest, a cough, and whitish sputum. N.S. made a final diagnosis was bronchial asthma and recommended that the Veteran be presented to the medical board for consideration of separation. This was because he did not meet induction standards due to his asthma. N.S. also stated that the condition existed prior to service and was not aggravated by service. In a disposition form dated October 18, 1974, the Veteran signed a request for separation. The disposition form stated, "I request discharge from the military service by reason of erroneous induction/enlistment," as well as, "Justification of this request is that I did not meet induction/enlistment standards" at the time of his induction or enlistment. Thereafter, a medical board convened for medical board proceedings held on October 30, 1974. At that time, the medical board noted that the Veteran had bronchial asthma, which was not incurred in the line of duty because it existed prior to service, which was not caused incident to service, and which was not aggravated by active duty. The medical board, which was made up of three members, including N.S., unanimously recommended that the Veteran be separated from service. Their findings and recommendations were approved by a deputy commander, and the Veteran indicated that he had been informed of the medical board's decision by signing off on the decision on November 1, 1974. Ultimately, this evidence clearly and unmistakably shows that the Veteran's asthma pre-existed his military service. This is obvious and manifest from the medical history he gave when he reported to sick call and when he was examined by N.S. Indeed, the Veteran reported that he was being treated for asthma by a doctor in Texas and his medical records reflect that he took medication for it. Given the very brief gap between when he entered service and when he reported that he was suffering from symptoms of asthma, as well as his contemporaneous statements regarding its onset and history, the Board thus finds that asthma clearly and unmistakably pre-existed service. The Board has reviewed the Veteran's testimony and other statements regarding the onset and continuity of his asthma symptoms, but finds that these statements are not credible. Although he stated at his August 2021 hearing that he did not experience trouble breathing prior to service, contemporaneous medical evidence reflects otherwise. As set forth above, the Veteran reported in October 1974 service treatment records that he had a history of asthma all his life and that he was being treated by a doctor for it. These in-service statements regarding the onset and nature of his symptoms are considered exceptionally trustworthy, as they were made for the purpose of medical diagnosis and prior to the filing of this claim. See White v. Illinois, 502 U.S. 346, 356 (1992). His present contentions concerning the onset and continuity of his symptoms, on the other hand, are inconsistent with his other statements in the record. As such, the Board finds that those statements lack credibility and are entitled to no probative weight. The Veteran has also argued in his notice of disagreement that he would not have been accepted for service if he had asthma, and that this demonstrates that he did not have asthma prior to service. The Board is not persuaded by this argument. Indeed, the Veteran himself signed a disposition form stating that he did not meet enlistment standards and that his enlistment had been erroneous. The Board now turns to the question of whether the Veteran's asthma, which clearly and unmistakably pre-existed his service, was clearly and unmistakably not aggravated in service. Regarding this second prong, the government may show a lack of aggravation by establishing by clear and unmistakable evidence "that there was no increase in disability during service" or that any "increase in disability [was] due to the natural progress of the preexisting condition." Wagner, 370 F.3d at 1096. This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation, rather than finding that the record contained insufficient evidence of aggravation. See Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service," unless the underlying condition, as opposed to the symptoms of the condition, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). 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). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If a disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). Here, the most competent and credible evidence of record demonstrates that there is clear and unmistakable evidence the Veteran's asthma was not aggravated by military service. To that end, although he was treated for complaints of wheezing and coughing in October 1974, and it was subsequently recommended that he be discharged because he had asthma, his service treatment records also clearly state that his asthma existed prior to his entry into service and that it had not been aggravated during service. Moreover, following his October 1974 visit to sick call, the Veteran's service treatment records do not reflect any other complaints of or treatments for symptoms of asthma. In essence, this illustrates that there is clear and unmistakable evidence that his asthma was not aggravated during service. Although the Veteran currently uses an Albuterol inhaler to treat his asthma, there is no competent, credible evidence in the record indicating that his asthma was aggravated beyond its natural progression due to his five weeks of service. Indeed, although the Veteran reported to a VA physician that he had experienced daily wheezing and shortness of breath since the 1970s at a May 2017 primary care appointment, this is inconsistent with other statements he has made to post-service treatment providers. For instance, at July 2004, May 2006, December 2010, April 2011, June 2011, October 2011, May 2012, April 2013, November 2014, and March 2015 VA primary care appointments, he denied shortness of breath. Moreover, at a November 2015 VA primary care appointment, he reported that he had shortness of breath, but that it had gradually progressed starting four or five months prior. As such, the Veteran's May 2017 statement that he had experienced daily wheezing and shortness of breath since the 1970s is inconsistent with various other statements he has made to medical providers and hence not credible. Because the May 2017 statement regarding the severity of his asthma symptoms over time is not credible, it is entitled to no probative weight. Accordingly, the Board finds that the presumption of soundness has been rebutted. Because the presumption of soundness has been rebutted, service connection for asthma is not warranted. 38 U.S.C. § 5107. With respect to other respiratory conditions, the Veteran's post-service VA treatment records indicate that his current COPD is related to his asthma, as his condition is frequently characterized as asthma/COPD. The Board acknowledges that the Veteran reported symptoms of wheezing and coughing during service, but these symptoms found to be a result of pre-existing bronchial asthma, which was not aggravated during service and is not connected to service, as opposed to COPD or another respiratory disorder. There is no competent, credible evidence, and the Veteran does not assert, that he was diagnosed with COPD or any other respiratory disorder during service or that such a disorder had its onset at that time. As such, service connection for any other respiratory disorder, including COPD, is not warranted, and his claim must be denied. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, 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.