Citation Nr: 21006591 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 14-15 861A DATE: February 4, 2021 ORDER Service connection for asthma, also claimed as breathing problems, is denied. FINDING OF FACT The Veteran’s asthma clearly and unmistakably preexisted active service, and clearly and unmistakably did not undergo a permanent increase in severity during active service beyond normal progression. CONCLUSION OF LAW The criteria for service connection for asthma, to include breathing problems, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1964 to June 1964; the Veteran died in January 2019. In June 2020, the appellant, who is the spouse of the Veteran, was substituted as the appellant for purposes of processing the claim to completion. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. This matter came before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in July 2017; a transcript is of record. In May 2018, the Board reopened the claim of service connection for asthma and remanded for further development. Service Connection The Veteran asserts that he has asthma or a breathing problem due to in-service exposures. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may also 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). VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. § 1111. 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 preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). The presumption of soundness attaches only where there has been an induction examination during which the disability about which the veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term “noted” denotes “[o]nly such conditions as are recorded in examination reports,” and that “[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions.” 38 C.F.R. § 3.304(b). When no pre-existing medical condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The law further provides that the burden to show no aggravation of a pre-existing disease or disorder during service is an onerous one that lies with the government. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). Importantly, the VA Office of the General Counsel determined that VA must show by clear and unmistakable evidence that there is a pre-existing disease or disorder and that it was not aggravated during service. See VAOPGCPREC 3-03 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. Id. The Board must follow the precedent opinions of the General Counsel. 38 U.S.C. § 7104(c). If the presumption of soundness applies, the burden then shifts to the Government to rebut the presumption by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. Accordingly: Once the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness . . . the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). “The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition.” Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (citing Wagner, 370 F.3d at 1096). This burden must be met by “affirmative evidence” demonstrating that there was no aggravation. See Horn, 25 Vet. App. at 235. The burden is not met by finding “that the record contains insufficient evidence of aggravation.” Id. In adjudicating this claim, the Board must assess the Veteran’s competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses’ personal knowledge. See also 38 C.F.R. § 3.159(a)(2) (“Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person.”). A January 1964 Report of Medical Examination conducted for enlistment purposes reflects that his ‘sinuses’ and ‘lungs and chest’ were clinically evaluated as normal. A chest x-ray was negative. 11/06/2015 STR-Medical at 1. On a January 1964 Report of Medical History, the Veteran checked the ‘Yes’ box with regard to whether he had ‘hay fever’ and checked the ‘No’ box for ‘asthma.’ The examiner noted that he has had hay fever since he was a child and is allergic to dry grass and that it is related to ear, nose and throat (ENT); he does not take medication. Id. at 3-4. Based on the above, the Board finds that the presumption of soundness attaches with respect to the Veteran’s claimed asthma, as a respiratory disability was not diagnosed at his enlistment examination and a physical examination was normal. However, clear and unmistakable evidence demonstrates that his asthma pre-existed service, as will be discussed next. In March 1964, the Veteran sought treatment for complaints of difficulty breathing at night. He related a history of hay fever, and a family history of asthma. A May 1964 treatment record reflects that the Veteran related a family history of asthma and episodes of shortness of breath and difficulty breathing prior to service. The diagnoses included bronchial asthma. In another May 1964 treatment record the Veteran stated that he has had hay fever all his life and that he received an injection at age 18. The note states that he had denied asthma on the form when he enlisted. Another May 1964 treatment note reflects that the Veteran had acute bilateral frontal and maxillary sinusitis. A May 1964 x-ray revealed clouding of both maxillary antra, as well as the frontal sinuses. An air fluid level was seen in the left frontal sinus. A subsequent May 1964 x-ray revealed air fluid levels in both maxillary antra and some haziness of the right frontal sinus. A clinical narrative summary dated in June 1964 states that the Veteran had a history of allergy, hay fever, and whistling in his chest for one year. His past medical history included hay fever and allergies since childhood. During service, he was on sick call 12 times for asthma and sinusitis. His physical examination was essentially within normal limits except for recurrent asthma and sinusitis. 09/01/1970 STR-Medical at 13. A Medical Board indicated diagnoses of asthma, allergic with hay fever which existed prior to service, and sinusitis, chronic, which existed prior to service. The Medical Board found that such conditions were not aggravated by service. It was recommended that he be discharged for failing to meet procurement medical standards. Id. at 11. In June 1964, the Veteran signed a statement pertaining to discharge for the convenience of the Government. In that document he requested discharge for a physical disability as he had been notified that he was considered unfit for retention in the military on account of a physical disability that was considered to have existed prior to entry into service and appeared not to be incident to or aggravated by service. Id. at 9. A May 1976 letter from a physician reflects that from 1963 to 1973, the Veteran was seen for upper respiratory infections, abrasions of the face, sinusitis, and paranoia and anxiety states. 05/06/1976 Third Party Correspondence. In March 1995, the Veteran asserted that he was exposed to chlorine gas when he had to take off his gas mask. He believed that his problems began with that incident. 03/28/1995 VA 21-4138 Statement in Support of Claim. At a March 1995 RO hearing, he read his statement into the record and testified that he did not have a breathing condition prior to service. He testified that if he did, his service aggravated it, but he did not have any asthma or breathing problems prior to service. 03/28/1995 Hearing Testimony. At a July 1997 Board hearing, the Veteran testified that he never had colds, asthma, pneumonia, or sinusitis prior to service. During service he had to take off his gas mask and he thought he was exposed to chlorine and mustard gas. He had problems breathing from that time on. He sought treatment on a regular basis at the end of his tour. He did not recall saying that he had a history of hay fever and allergies since childhood. He reported that he began to have breathing problems in 1966 or 1967. In a November 1998 statement, the Veteran asserted that from 1966 to 1977 he worked at a naval shipyard and was exposed to asbestos and grinding metal; such period is subsequent to his active service. In January 2010, the Veteran again claimed breathing problems due to exposure to chlorine gas. In March 2010, July 2013 and April 2015, he reiterated his exposure to asbestos while working at the shipyard. At the July 2017 Board hearing, the Veteran testified that he began to experience breathing problems in February 1964. He testified that he was exposed to gas when he took his gas mask off in a gas chamber. He testified that he was exposed to asbestos while working in the shipyard from 1966 to 1977. In October 2020, a C&P examiner reviewed the claims folder and opined that the Veteran’s allergic asthma and hay fever existed prior to military service based on review of his service treatment records. In an October 2020 addendum opinion, the examiner opined that there was clear and unmistakable evidence that his condition was not aggravated by active service. The examiner noted that the Veteran performed a pulmonary function test in November 2003 at age 53, almost 40 years post-service, which was normal. This indicates that his disorder was not aggravated by active service. The examiner stated that it is clear and unmistakable that this condition was present prior to military service and was not caused by exposure to gas as this is not a medically recognized etiology for asthma. The Board finds the Veteran’s report of hay fever on a report completed for enlistment purposes; the contemporaneous statements of the Veteran made during active service pertaining to his pre-service hay fever, allergies, and asthma; the findings of the Medical Board; and, the opinion of the October 2020 C&P examiner constitute collective clear and unmistakable evidence that the Veteran’s asthma and breathing problems preexisted service. The inquiry does not end there, however; VA must demonstrate by clear and unmistakable evidence that the disability was not aggravated during the Veteran’s active duty service. As detailed above, service treatment records reflect numerous complaints of and treatment for asthma, hay fever, and sinusitis, and a Medical Board concluded that these conditions preexisted service and were not aggravated by service. Moreover, the October 2020 C&P examiner opined that his asthma was not aggravated by service. The Board finds that the opinions of trained medical professionals during the time of the Veteran’s active service and the October 2020 C&P examiner’s opinion finding against aggravation are the most probative of record. The finding of the Medical Board was generated during service and was based on interview and examination of the Veteran while he was serving on active duty. The October 2020 opinion is based on a review of the evidence and a clear rationale is provided in support of the conclusions. Given the depth of the examination report, and the fact that the opinion was based on a review of the applicable record, the Board finds such opinion is probative and material to the Veteran’s service connection claim. Based on the Medical Board’s findings and the October 2020 examiner’s opinion, the Board concludes that the Veteran’s pre-existing asthma clearly and unmistakably did not undergo an increase in severity during or due to service. There is no contrary opinion of record. The Board has given consideration to the lay contentions of the Veteran, to include his lay statements and testimony. In light of his lay assertions, and given the complexity of the medical question involved, an opinion was sought, which does not provide the basis for granting service connection based on aggravation of a pre-existing condition. The medical evidence and opinion outweigh the lay contentions of the Veteran. For these reasons, the preponderance of the evidence is against the claim and entitlement to service connection for asthma is not warranted. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.W. Kreindler, 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.