Citation Nr: 21026830 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 18-02 988 DATE: May 4, 2021 REMANDED Entitlement to service connection for asthma is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from December 1963 to January 1964. The Veteran also had service in the Naval Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed disagreement with the determinations in a timely manner, and the present appeal ensued. In July 2020 the Veteran testified at a virtual Board hearing conducted by the undersigned Veterans Law Judge (VLJ). A copy of the July 2020 hearing transcript is associated with the electronic claims file. Entitlement to service connection for asthma is remanded. A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). However, the Court has held that the presumption of soundness does not apply to congenital defects because such defects are not considered diseases or injuries within the meaning of 38 U.S.C. §§ 1110 and 1111. See Quirin v. Shinseki, 22 Vet. App. 390, 396-97 (2009); see also Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003); Winn v. Brown, 8 Vet. App. 510, 516 (1996). When no preexisting condition is noted upon entry into service, the burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase was due to the natural progress of the preexisting condition. Id. at 1096. A claimant is not required to show that the disease or injury increased in severity during service before VA meets both of these burdens. See VAOPGCPREC 3-2003. By way of background, upon review of the Veteran's service treatment records, the Board notes that the Veteran did not report a history of asthma at his August 1963 enlistment examination. In December 1964, the Veteran's private provider submitted a statement noting that the Veteran was suffering from bronchial asthma and was unable to participate in athletic events due to dyspnea. In December 1964, service treatment records contain a medical examination with a note of occasional respiratory wheeze. The medical examination also noted the statement from the Veteran's private provider. As discussed above, asthma was not noted on the Veteran's enlistment examination and he is therefore presumed sound upon entrance. However, the Veteran contends that he had a pre-existing disability that was aggravated by his military service. Moreover, the record reflects that the Veteran was discharged for asthma which was found to be pre-existing by the U.S. Navy. As such, in order to rebut the presumption of soundness, VA must establish, by clear and unmistakable evidence, that any such preexisting disability was not aggravated by the Veteran's service. In December 2017, the Veteran attended a VA examination to determine the nature and etiology of his asthma. Upon examination, the VA examiner diagnosed the Veteran with asthma and noted that it was diagnosed prior to service. After a review of the December 2017 VA examination, the Board finds this examination to be inadequate to decide this case. Specifically, the Board notes that the evidence of record shows that the Veteran may have had asthma prior to entrance into active service. However, this opinion did not include any discussion as to whether there was clear and unmistakable evidence that the Veteran's asthma existed prior to service. Instead, the examiner simply opined that the Veteran's asthma existed prior to service and that it was not likely aggravated by his military service. Accordingly, when VA undertakes to provide an examination or obtain a medical opinion relating to a claim for benefits, it must ensure that the resulting examination or opinion is adequate for the purposes of the determination to be made. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, for the above stated reasons, the Board finds that a remand is necessary in order to obtain an additional VA examination regarding the nature and etiology of the Veteran's disability. The matters are REMANDED for the following action: Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran's asthma. The electronic claims file must be reviewed by the examiner. After review of the claims file, the examiner is asked to answer the following questions: (A.) Is there clear and unmistakable evidence that the Veteran's asthma existed prior to service? Please cite to the evidence that clearly and unmistakably establishes preexistence. (B.) If the examiner finds that it did clearly and unmistakably preexist service, opine on whether it was clearly and unmistakably (undebatable) not aggravated during service. (C.) If asthma is not found to have clearly and unmistakably preexisted service and/or was clearly and unmistakably not aggravated during service, is it as least as likely as not (50 percent or greater probability) that the Veteran's asthma is proximately due to or the result of service or any incident in service, to include the contention that the Veteran was exposed to cold weather without proper clothing. Clear and unmistakable evidence means evidence that cannot be misinterpreted and misunderstood, i.e., it is undebatable. Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered aggravation in service. In providing all of the requested opinions, the examiner should consider the Veteran's competent lay claims regarding the observable symptoms he has experienced. The VA examination report must include a complete rationale for all opinions expressed. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. W. Morgan, 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.