Citation Nr: 21024328 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-33 606 DATE: April 22, 2021 ORDER Entitlement to service connection for asthma is granted. FINDING OF FACT The Veteran’s asthma, which was noted on service entrance, was aggravated beyond its natural progression during service. CONCLUSION OF LAW The criteria for service connection for asthma have been met. 38 U.S.C. §§ 1110, 1153; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1976 to October 1976. In a May 2019 decision, the Board of Veterans’ Appeals (Board) denied entitlement to service connection asthma. In January 2020, the Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court) where the Court granted a Joint Motion for Remand (JMR) filed by the parties. Subsequently, the Board remanded the case in August 2020 for further action consistent with the Board’s remand directives. As such, the case has returned to the Board for further appellate proceedings. A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Every veteran shall be 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. Cases in which the condition is noted on entrance, as here, are governed by the presumption of aggravation of a preexisting disability contained in 38 U.S.C. § 1153, as opposed to that applicable under 38 U.S.C. § 1111 where the complained-of condition was not noted on entrance into service. This statute provides that a pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Essentially, the Veteran is bringing a claim for service connection for aggravation of his preexisting disorder, when that disorder is noted at service entrance. The Veteran contends that his pre-existing asthma was worsened by his active service. At the Veteran’s July 1976 entrance examination, the documenting physician noted on the Report of Medical Examination that the Veteran indicated a self-diagnosed and treated history of asthma. See July 1976 Report of Medical Examination. Because the condition was noted on service entrance, the presumption of soundness does not apply. However, as noted above, if there was an increase in the Veteran’s asthma during service, the presumption of aggravation applies unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153. Here, the Board finds that the Veteran’s asthma underwent an increase in severity during service. The Veteran’s asthma was noted to be asymptomatic at entrance. Specifically, the Report of Medical Examination notes the Veteran last suffered from asthma six years prior to entry and was noted to be asymptomatic at time of entry to service—specifically no wheezing or rales were noted by the documenting physician. See July 1976 Report of Medical Examination. However, during service, the Veteran was seen for a “shot reaction” with inability to catch his breath on September 2, 1976, sought treatment for asthma on September 20, 1976, was given a diagnosis of chronic brachial asthma and prescribed medication on October 2, 1976, and was seen on October 2, 1976 for trouble breathing with wheezing from the chest. See Service Treatment Records (STRs). Ultimately, the Veteran was recommended separation from service due to his asthma. See Medical Board Decision. The sheer volume of breathing and asthma complaints provides strong evidence that the Veteran’s asthma symptoms increased in service and were more than the asymptomatic description as noted at entry to service. Further, the Board finds it persuasive that the Veteran was found fit for enlistment despite his asthma, but then eventually discharged because of the increase in severity of the same disability. Thus, indicating a clear worsening of symptoms. The evidence also does not demonstrate that the Veteran’s increase in his asthma disability during service was clearly and unmistakably (i.e., undebatably) due to the natural progression of the disability. To the contrary, the Veteran’s symptoms appeared to be asymptomatic before service and it was not until the Veteran entered service, where he went through intensive physical training and exposure to elements he was not familiar with, that an increase in disability was shown. Notably, the December 2020 VA examiner stated, “Prior to service the Veteran did not engage in activities required of enlistees such as running or strenuous physical activity. Had he done so, his condition would have been obvious at enlistment and he would have been deferred.” See December 2020 VA examination report. The examiner also stated that the Veteran was “not in control of his environment—likely exposure to mold, mildew and dust in sleeping area exacerbated night time symptoms.” Id. While the December 2020 examiner ultimately gave a negative aggravation opinion, these statements seem to indicate the opposite. Essentially, the examiner is concluding that but for the Veteran’s military service his asthma would not have worsened. Thus, given the Veteran’s physical training and in-service environment, it appears that his increase in symptoms was not due to the natural progression of the condition, but rather to the unique circumstances of service. In short, the evidence demonstrates that the Veteran’s pre-existing asthma was aggravated beyond its natural progression during service. As such, service connection for asthma is warranted. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Katie Poe, 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.