Citation Nr: 21023648 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-49 784 DATE: April 21, 2021 ORDER Entitlement to service connection for asthma is denied. FINDING OF FACT There is clear and unmistakable evidence that Veteran’s asthma pre-existed service, and clear and unmistakable evidence that the preexisting asthma was not aggravated by service. CONCLUSION OF LAW The criteria for service connection for asthma have not been met. 38 U.S.C. §§ 1111, 1131; 38 C.F.R. §§ 3.303(a), 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1978 to July 1983. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which, inter alia, denied service connection for asthma. In February 2015, the Veteran filed his notice of disagreement, was issued a statement of the case in August 2016, and in October 2016, perfected his appeal to the Board. In August 2020, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. In December 2020, the Board, inter alia, remanded the Veteran’s claim for a new medical opinion regarding the etiology of the Veteran’s asthma. For the reasons indicated in the discussion below, the opinion that the Board instructed the agency of original jurisdiction (AOJ) to obtain was in fact obtained and is adequate to decide the claim on appeal. Thus, the AOJ complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Asthma The Veteran’s December 1977 medical examination report upon entry is normal, with no indication of a respiratory illness, including asthma, and his December 1977 medical history report explicitly reflects that the Veteran does not have asthma. November 1981 service treatment records reflect that the Veteran was treated for asthma and hay fever, and indicate that he was hospitalized for an asthma attack in May 1980. Undated service treatment records indicate the Veteran had asthma as a child which subsided until the age of 20 when his symptoms reappeared. The Veteran was noted to do well without medication until December 1979 when attacks became more frequent and required medication. A September 2014 disability benefits questionnaire (DBQ) reflected that the Veteran had a diagnosis of asthma from childhood which was in remission until entry into service where he experienced recurrent exacerbations which required daily medication. The examining physician’s assistant (PA) opined that the Veteran’s asthma was less likely than not (less than a 50 percent probability) incurred in or caused by service noting that the Veteran’s service treatment records reflect a history of asthma from childhood. The PA stated that the Veteran’s asthma clearly and unmistakably existed prior to service, and was not aggravated beyond its natural progression by an in-service event, injury, or illness, as the service treatment records show childhood asthma was exacerbated prior to service and there is no objective evidence to support aggravation. The Veteran stated that his asthma intensified when he was stationed in Hawaii and that he was denied going to a Navy marine ship due to how severe his asthma had become. He stated that the last year and a half of his first enlistment, his asthma continued to worsen to the point where it is today, and that he now requires medication and inhalers. He also stated that he suffers from shortness of breath, wheezing, and that he is unable to perform cardiovascular activities like running. In a June 2016 addendum medical opinion, the physician stated that the presumption of soundness applied as asthma was not noted on the Veteran’s entrance examination, but opined that the Veteran’s asthma was less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The physician noted the April 1983 administrative discharge Board note which documented that the Veteran had lied about his history of asthma, and that the Veteran had experienced asthma as a child and again at the age of 20. Therefore, the physician concluded that the currently diagnosed asthma is not related to the incident of asthma noted in service. In a February 2021 DBQ, the examining physician opined that the Veteran’s asthma was less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness, stating that it was more likely than not that the Veteran had pre-existing childhood asthma which was not reported upon entry. He noted that administrative board hearings from April 1983 indicated that the Veteran lied on admission records regarding childhood asthma, and also that records stamped July 29, 1983, reflecting on 1979 and 1980 medical events, noted exacerbation of the Veteran’s childhood asthma prior to admission to service at approximately 20 years of age. The physician stated that it is more likely than not that the Veteran was having asthma symptoms prior to service and continued to do so while in service, therefore it is more likely than not that the Veteran did not have asthma arising in service, but had it prior to service. The physician also noted that as the Veteran was undergoing exacerbations prior to service, any events in service likely represented the natural progression of the condition and represented untreated asthma. Thus, it is less likely than not that the Veteran’s asthma had its nexus in service, and it is almost certain that the asthma predated service and was undergoing a natural course while in service. The physician also opined that it is less likely than not (less than a 50 percent probability) that the Veteran’s asthma has been aggravated beyond its natural course due to any cause, including the events in service. He noted that the Veteran did not disclose the use of medications just prior to service, and had he done so, it is more likely than not a full pulmonary evaluation would have been undertaken with recommendations for continued service based upon the evaluation. The physician concluded that the Veteran’s condition predated service, and was not aggravated beyond its natural course due to military service, as it would have progressed naturally in the absence of military service. A Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § § 3.304 (b). In other words, “[w]hen no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry.” Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Here, the Veteran’s December 1977 medical examination report upon entry into service does not reflect that the Veteran suffered from asthma or any respiratory illness upon entry, thus the Veteran is presumed sound upon entry. However, service treatment records reflect that the Veteran had childhood asthma and symptoms at the age of 20, and his September 2014 DBQ indicates that his childhood asthma had been in remission prior to entry into service. Additionally, the February 2021 physician reported that the Veteran’s asthma was not aggravated by service, stating that any events in service likely represented the natural progression of the untreated asthma. The February 2021 physician provided a thorough rationale to support his opinion regarding the nature of the Veteran’s asthma, thus his opinion is afforded significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Thus, there is clear and unmistakable evidence that the Veteran’s asthma pre-existed service and clear and unmistakable evidence that it was not aggravated by service; therefore, the presumption of soundness has been rebutted. Considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection for asthma is not warranted. In this regard, the September 2014, June 2016, and February 2021 opinions indicate that the Veteran’s asthma is less likely than not (less than a 50 percent probability) related to aggravation of the preexisting disorder by service. While the September 2014 and June 2016 opinions have been deemed inadequate as the PA and physician failed to provide a sufficient rationale to support their conclusions or consider the Veteran’s contentions, the February 2021 physician opined that the Veteran’s asthma was less likely than not (less than a 50 percent probability) related to service, or aggravated beyond its natural progression by service, and provided a thorough rational based on an accurate characterization of the evidence, specifically discussing the history of the Veteran’s asthma and the exacerbation of its symptomatology. Therefore, the February 2021 opinion is afforded significant probative value as to the etiology of the Veteran’s asthma. See Nieves-Rodriguez, 22 Vet. App. at 304. There is no contrary medical opinion in the evidence of record, and the evidence does not otherwise indicate that the Veteran’s pre-existing asthma was aggravated by service, indeed, the evidence clearly and unmistakably shows a lack of aggravation by service. While the VA examiners used less likely than not terminology, that is sufficient to meet the applicable standard after the previous finding that the presumption of soundness had been rebutted, converting the claim into one of service connection for aggravation of the preexisting asthma. The Board acknowledges the Veteran’s contention that his asthma worsened while in service. He is competent to state that symptoms worsened. The question of whether the worsening symptoms were reflective of an increase in the underlying condition is one that a trained medical professional is better able to identify. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). See also Davis v. Principi, 276 F.3d 1341, 1346-47 (Fed. Cir. 2002) (holding that “evidence of temporary flare-ups... alone, is not sufficient for a non-combat veteran to show increased disability under 38 U.S.C. § 1153 unless the underlying condition is worsened.”); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991) (holding that “temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered ‘aggravation in service’ unless the underlying condition, as contrasted to symptoms, is worsened.” The specific, reasoned medical opinion indicating lack of aggravation is therefore entitled to significantly more probative weight on the question of whether there is clear and unmistakable evidence of lack of aggravation than the more general lay assertions. In this regard, the Board is not precluded from determining that the presumption of soundness is rebutted even if there is conflicting evidence. See Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004) (“The clear and unmistakable evidentiary standard... does not require the absence of conflicting evidence”). For the above stated reasons, the evidence clearly and unmistakably shows both that asthma preexisted service and was not aggravated thereby. This same evidence shows that the preexisting asthma was not aggravated by service. The claim for service connection for asthma must be denied. The Board is sympathetic to the Veteran and recognizes his distinguished service but is bound by the applicable laws and regulations. 38 U.S.C. § 7104(c) (2012); 38 C.F.R. § 20.105 (2020). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maddox, 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.