Citation Nr: 21025274 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-55 870 DATE: April 27, 2021 ORDER Entitlement to service connection for asthma is granted. FINDING OF FACT The Veteran’s asthma, which pre-existed service, was aggravated during service. CONCLUSION OF LAW The criteria for service connection for asthma are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1153, 5103, 5103A, 5107; 38 C.F.R. § 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2011 to January 2012. In February 2021, he testified at a virtual hearing held before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. Service Connection The Veteran is seeking service connection for asthma, which he contends preexisted service and was aggravated by service. See February 2021 Board hearing transcript. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection is available for preexisting conditions aggravated during service beyond the course of their natural progression. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The law provides that Veterans are presumed sound upon entry into service except for conditions noted upon entry or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. However, if, as here, a preexisting disability is noted upon entry into service, a veteran cannot bring a claim for service incurrence for that disability but may bring a claim for service-connected aggravation of that disability. Paulson v. Brown, 7 Vet. App. 466, 468 (1995). In such a case, the provisions of 38 U.S.C. § 1153 and 38 C.F.R. § 3.306 apply. It is the Veteran who bears the burden of establishing aggravation under 38 U.S.C. § 1153. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). A preexisting disease or injury will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). The Veteran must submit, or the record must contain, some evidence demonstrating that the preexisting disability increased in severity during service for the presumption of aggravation to attach. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir 2004); Verdon v. Brown, 8 Vet. App. 529 (1996). Once the presumption attaches, it may be rebutted only by clear and unmistakable evidence demonstrating that any increase in disability was due to the natural progress of the disease, which burden is on the government. Wagner, supra; Cotant v. Principi, 17 Vet. App. 116 (2003); 38 C.F.R. § 3.306(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service treatment records show asthma was noted at enlistment in March 2011. See Report of Medical History Examination dated March 2, 2011. Thus, the presumption of soundness at entrance does not attach and the Board needs next to determine whether the pre-existing disorder was aggravated during service. The remaining service treatment records shows normal lungs and chest on evaluation and that the Veteran was qualified to enlist. See Report of Medical Examination dated March 2, 2011. Although it appears his asthma was essentially inactive prior to service, it became asymptomatic shortly after service. An entry dated in October 2011 shows a diagnosis of asthma which limited the Veteran’s ability to train and required the use of an inhaler. It was noted that the Veteran had mild persistent symptoms throughout adolescence and into basic training and that service separation was recommended. In June 2017, following examination of the Veteran and review of the file, a VA examiner found the preexisting asthma was not aggravated beyond its natural progression by service. It was explained that it is normal for physical exertion to occasionally exacerbate the chronic condition of bronchial asthma. This is episodic, resolves with treatment, and does not alter the progression of the condition overall. See Medical Opinion Disability Benefits Questionnaire, dated in June 2017. At his February 2021 hearing, the Veteran testified that he was diagnosed with childhood asthma as an infant but did not have any further issues after the age of five. He testified that he began to have trouble breathing and began “blacking out” during service secondary to extensive running and physical training exercises. He stated that as a result he needed to carry an inhaler and that his problems have continued since then. See February 2021 hearing transcript. Following the hearing, the Veteran submitted a lay statement from his mother discussing his history of asthma. See VA Form 21-4138, dated February 2021. Based on the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s pre-existing asthma was aggravated during service. While the Board cannot ignore or disregard the VA medical report, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a medical opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). In this case, the Veteran was established as asymptomatic on his enlistment examination, yet began experiencing difficulty breathing during service, and ultimately went on to be discharged as a result of persistent asthma symptoms that required the use of an inhaler. This constitutes sufficient evidence of an increase in symptoms to trigger the presumption of aggravation of the Veteran’s preexisting asthma, and the VA examiner’s medical opinion does not constitute the clear and unmistakable evidence required to rebut this presumption. Moreover, the record also contains favorable evidence, primarily the Veteran’s credible hearing testimony that he did not experience asthma symptoms prior to service, began experiencing difficulty breathing during service and had continued problems since service (assertions that he is considered competent to make). Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). This supporting evidence places the pertinent record in relative equipoise. For the foregoing reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the preexisting asthma underwent an increase in severity during service beyond its natural progression, that is, the preexisting asthma was aggravated by service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Accordingly, the Board resolves all reasonable doubt in favor of the Veteran and finds that the criteria for service connection for asthma are met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bryant, Jeana R 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.