Citation Nr: 21014549 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-09 843 DATE: March 15, 2021 REMANDED Entitlement to service connection for asthma is remanded. REASONS FOR REMAND The Veteran had active military service in the United States Air Force from October 2002 to March 2003. This matter comes before the Board of Veterans' Appeals (Board) from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office in Newark, New Jersey. In March 2019, the Veteran testified before the undersigned Veterans Law Judge. A copy of the hearing transcripts has been associated with the electronic claims file. In May and November 2020, the Board remanded the claims for additional records development and to obtain additional medical opinions for the claims. After review of the record, the Board is not satisfied that there has been substantial compliance with the remand's directives and additional development is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Service Connection for Asthma is Remanded. The Veteran contends that service connection is warranted for asthma. While the Board regrets the additional delay, a remand is necessary to ensure an adequate record to allow for a fully informed decision. Service connection may be granted if it is shown that a veteran suffers from a disability resulting from personal injury during active military service or for aggravation of a preexisting injury during active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). A veteran who served after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination, 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, 1132. The Veteran's entrance examination is silent for any respiratory disabilities. In February 2003, the Veteran self-presented for evaluation after having shortness of breath during physical training. He reported some wheezing with running that would get worse in the middle of a run and cause him to slow down. He further reported respiratory symptoms were present prior to basic training such as when playing baseball in high school. On examination, the Veteran's lungs were clear with good air movement. AS radiograph showed the lungs were normally aerated and the cardiomediastinal silhouette was normal. The impression was a normal exam for given age. The assessment given was asthma. In March 2003, the Veteran was discharged via an entry level separation with an uncharacterized discharge. To be "noted" within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C. F. R. § 3.304(b); see also 38 U.S.C. § 1111; Crowe, 7 Vet. App. at 240. The Veteran's entrance examination, however, did not note asthma or any other respiratory disability. The April 2002 Report of Medical Examination found that the Veteran's lungs and chest were normal on clinical evaluation and no respiratory system problems were noted. Accordingly, the Board finds that the Veteran is presumed to have been sound upon entry, and the burden shifts to VA to rebut the presumption of soundness with clear and unmistakable evidence that the condition existed prior to service and that it was not aggravated by service. The Board notes that clear and unmistakable evidence is a much more formidable evidentiary burden to meet than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). Clear and unmistakable evidence is an onerous evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (noting that clear and undebatable means that the evidence cannot be misinterpreted or misunderstood). Turning to the claim for service connection, in April 2015, the Veteran underwent a VA examination to determine the etiology of any respiratory disabilities. Chest x-rays and pulmonary function testing performed showed normal results. The VA examiner indicated the Veteran had no current diagnosis of asthma or any pulmonary disabilities. In April 2019, the Veteran underwent a private examination. He was diagnosed with exercise-induced bronchospasm and intermittent shortness of breath. In June 2020,, a VA physician reviewed the claims file and indicated the Veteran had a current diagnosis of asthma and indicated the date of diagnosis was 2003. The VA physician also indicated that in 2015 the Veteran was not found ot have asthma and in 2019 was diagnosed with exercise induced asthma. In one section of the report the examiner opined it was less likely than not that the condition was caused by service and the examiner explained that it was more likely than not the condition was preexisting based upon the 2003 notation. The VA physician opined the Veteran's current asthma clearly and unmistakably preexisted service based on the Veteran's inservice report of respiratory symptoms in high school and then indicated there was no continuity of symptomatology. The Board remanded the claim in November 2020 to obtain an opinion on the etiology of the Veteran’s asthma. In November 2020, a VA Nurse Practitioner reviewed the claims file and opined that the Veteran’s asthma less likely than not had its onset during service. The examiner's rationale is based on an absence of treatment for asthma for many years after service. However, the examiner did not consider the Veteran's reports of experiencing symptoms post service and treating himself by using prescription medications from friends. See March 2019 Hearing Transcript, p. 7; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (without a medical opinion that clearly addresses the relevant facts, the Board is left to rely on its own lay opinion, which it is forbidden from doing). Therefore, a remand for a nexus opinion that fully considers the Veteran's reported history in necessary. The matters are REMANDED for the following action: 1. Associate any outstanding VA treatment records with the electronic claims file. 2. After completion of the above-specified development. Obtain an addendum medical opinion from a pulmonologist. The physician must indicate review of the claims file in the examination report. If the physician determines that an additional examination of the Veteran is necessary to provide reliable opinions as to causation, such examination should be scheduled; however, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The physician is asked to offer the following opinions: (a) Is there clear and unmistakable evidence (undebatable) that the Veteran's asthma preexisted service? The Board notes that asthma was not noted in the Veteran's entrance examination, and as such, the presumption of soundness does attach in this case and can only be overcome by a showing of clear and unmistakable evidence of a preexisting condition. The Board notes that the term "clear and unmistakable" is defined in applicable regulations to mean "obvious or manifest." 38 C.F.R. § 3.304(b). This term has been further defined by the Court as meaning that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable. See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). (b) If the examiner concludes that there is clear and unmistakable evidence of that the Veteran's asthma preexisted service, then the examiner should further opine as to whether there is clear and unmistakable evidence demonstrating that the pre-existing asthma was not aggravated beyond the natural progression of the condition as a result of active military service. Any such evidence should be identified with specificity. (c) If it is determined that there is no clear and unmistakable evidence that the Veteran's asthma pre-existed service, the examiner should presume that the disability was not present at the time of service entrance. The examiner should then opine as to whether it is at least as likely as not that the disability had its onset in service or is otherwise related to service? The examiner is asked to specifically comment on: 1. The Veteran’s entrance examination. 2. The in-service treatment for shortness of breath and subsequent discharge. 3. The Veteran’s reports of post service symptoms and self-treatment. (Continued on the next page)   A complete rationale for all opinions is required. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Teague, 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.