Citation Nr: 21027512 Decision Date: 05/06/21 Archive Date: 05/05/21 DOCKET NO. 15-40 528 DATE: May 6, 2021 ORDER Entitlement to service connection for asthma (also claimed as respiratory disorder) is denied. FINDINGS OF FACT 1. There is no credible proof that asthma pre-existed service. 2. Asthma was not manifest during service and is not attributable to service. 3. Asthma is a diagnosed illness. CONCLUSION OF LAW Asthma was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1117, 1131 (2012); 38 C.F.R. § 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1982 to December 1988 and December 1990 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of this hearing is associated with the claims folder. With respect to the Board hearing, the undersigned VLJ clarified the issue on appeal and enquired as to whether there was additional outstanding evidence. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103. In October 2020, the Board remanded this case for further development. The October 2020 remand required that the VA schedule the Veteran for an examination to opine if Veteran's asthma was aggravated during Veteran's active service. Accordingly, the Board's remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to Service Connection for Asthma Pertinent Legal Criteria Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). The Board notes that the Veteran has not claimed that his disabilities on appeal are the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 are not for consideration. 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. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The presumption of soundness applies when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). To rebut the presumption of sound condition under section 1111 of the statute for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003. The government may show a lack of aggravation by clear and unmistakable evidence that either (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progress of the pre-existing condition. 38 U.S.C. § 1153; Wagner v. Principi, 370 F.3d 1089, 1096; see also Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). If the government fails to rebut the section 1111 presumption, the claim is one for service connection, not aggravation. If the disorder is not noted at entry, the burden of proof is on the government. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). In addition, temporary flare-ups, even in service, will not be considered sufficient to establish an increase in severity unless the underlying condition, as contrasted to the symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 295 (1991). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Asthma Because the Veteran had Gulf War service, the Board has considered the provisions of 38 U.S.C. § 1117. The law provides for a grant of service connection for a qualifying disability that is due to an undiagnosed illness or an unexplained multisystem illness. Here, the Veteran has diagnosed asthma. Asthma is a recognized clinical diagnosis and not an undiagnosed illness or a multisystem illness. As such the provisions regarding Gulf War illness are not applicable. The Veteran contends that he has asthma that was aggravated during service, in particular from exposure to burn pits and a hazardous desert environment. See June 2014 Third Party Correspondence. The Board notes that there was no entrance examination or discharge examination conducted during Veteran's January 1982 to December 1988 period of active service. There was no transfer or entrance examination conducted for December 1990 to April 1991 period of active service. There is an April 1991 demobilization examination. On Veteran's April 1991 demobilization examination, Veteran denied asthma and shortness of breath. The clinical evaluation disclosed that the lungs and chest were normal. The Board notes that Veteran's service treatment records are silent of any reports of asthma. While Veteran was a reservist on January 1993 he complained of mild difficulty of breathing and sensation of slight dizziness. Veteran was assessed with mild labyrinthitis. In May 1993 the Veteran had symptoms of a productive cough, he was subsequently diagnosed with a chest cold. On September 1994 a report of medical history was provided to Veteran. The Veteran denied having an upper respiratory infection and denied he was taking any medication. In January 2003 a primary care follow-up note was made for Veteran. The list of issues did not include asthma or provide any medication for asthma. Veteran did not report any cough or shortness of breath or sputum. The Board received Social Security Administration records from August 2009. A list of medications that the Veteran was taken were noted. The Veteran was not taking any medicines for asthma or any respiratory disorders. In October 2009, a psychiatry note was created at the San Juan VA Medical Center for Veteran. Under the note there was a computerized problem list that did not have asthma under the list. However, there was another list of active outpatient medications. Under the list of medications was medication for asthma. In June 2012, a Gulf War examination was provided to the Veteran. The Veteran reported that he had asthma during his childhood and that his condition reactivated on 1988 at Fort Campbell, Kentucky. The VA examiner reviewed the records and stated that they were silent for asthma. The examiner noted that Veteran was treated for a common cold at Fort Campbell in 1988, but not for asthma. The examiner further noted that the Veteran reported not having any wheezes or asthma attacks. The examiner opined that the condition is not related to a specific exposure event on Southwest asia due to the Veteran having no respiratory problems and only his self-proclaimed history of an asthma episode occurring before his time in the Persian Gulf. Veteran reported to the emergency room with complaints of chest pain on October 19, 2012. It was noted that Veteran reported shortness of breath and dizziness. While Veteran's pain subsided, lab tests were ordered to determine the cause. On October 26, 2012, the Veteran stated to the doctor through a personal contact that he was not diabetic or asthmatic, but suffered from hypertension. Veteran attended another primary care visit at the VA medical center in October 2013. The visit was a follow up and noted that Veteran's bilateral breath sounded clear to auscultation. The note further stated that there were no wheezes reported. On February 2014, another primary care follow-up note was made during Veteran's visit. The note stated that there was no cough, shortness of breath or productive sputum from Veteran. On another primary care follow-up note made on September 2015 Veteran's respiratory status was noted. It was the noted the Veteran had no cough, no shortness of breath and no productive sputum. Veteran reported to the emergency room in February 2016 with complaints of productive cough with yellowish sputum. Veteran reported that he had been wheezing for three days. A chest x-ray was conducted on Veteran which revealed small superior segment left lower airspace opacity consistent with atelectasis or consolidation. The examiners concluded that it was most likely atelectasis since it was noted on a previous x-ray. During a visit to the VA medical center a medical note dated August 2018 listed Veteran's problems. Asthma was listed under the problem list. Another VA examination was provided to the Veteran in July 2018. The VA examiner opined that the Veteran's asthma is less likely as not aggravated beyond its natural progression by military service. The examiner explained that his opinion was based upon the CPRS chart, review of the file, medical literature, and his interview with the Veteran. The examiner referenced a chest x-ray conduced on Veteran in February 2016. The findings of the x-ray were a small left lower lobe superior segment airspace opacity. The examiner stated that that this was consistent with mild atelectasis and less likely a platelike consolidation. There was no pneumothorax seen and no pleural effusion noted. A private medical nexus opinion was provided to the VA by Veteran's private doctor on October 2018. The private doctor stated that Veteran's present sensorial, cardiovascular, metabolic, and musculoskeletal diseases with psychiatric disorders are more probably than not secondary to his military service performance. The private doctor stated that Veteran presents clear rhinorrhea and nasal congestion with chronic cough, sputum and dyspnea with chest tightness and expiratory wheezing with rhonchi episodes which he is in medical treatment with poor improvement of symptoms. The Board notes that while the private doctor is capable of providing a medical opinion, this opinion does not provide much probative value. The private medical opinion does not provide any rationale to why Veteran's active service is related to these conditions. The private doctor only stated to refer to Veteran's in-service treatment records and outpatient treatment records that are already part of the record. In November 2019, the Veteran appeared before the undersigned VLJ for a hearing. The Veteran claimed that his asthma started when he was in active duty. The Veteran testified that he was treated for asthma first while stationed at Fort Lewis and then received treatment for about a year and a half. Once Veteran went to the Persian Gulf and was exposed to pit fires the symptoms started to reemerge. The Veteran also testified to seeking treatment at facilities within the VA Caribbean Healthcare System besides the San Juan VA Medical Center. On October 2019, a pulmonary medicine and critical care fellow note was made on Veteran. On Veteran's problem list was moderate persistent asthma. The note stated that Veteran's asthma was well controlled. A medical pulmonary note was made on January 2020 on Veteran's status. The note reported that Veteran was not wheezing and there were no Ronchi or crackles noted in the lungs. Veteran reported that in the past four weeks he only experienced shortness of breath once or twice a week. Veteran did not report any asthma symptoms such as wheezing, coughing, shortness of breath, chest tightness or pain that woke him up at night or earlier than usual in the morning. The Veteran also reported that in the past four weeks he had not used his rescue inhaler or nebulizer medication at all. Further the Veteran rated his asthma control as somewhat controlled. An objective asthma control test was administered and suggested that Veteran's asthma was well controlled. On April 9, 2020, the Board noted that the record indicated that there were relevant medical records in the possession of the VA that were not part of the electronic claims file. The Board remanded again to obtain outstanding VA medical records from the Caribbean Healthcare System, the Bronx VA Medical Center, and the NY Harbor Heath Care System. On October 2020, the Board noted that the July 2018 VA examiner implemented a different standard then what the RO applied in their decision. The Board remanded for another VA examination with the proper standard to confirm that the Veteran's asthma clearly and unmistakably preexisted the second period of active service. The Veteran was provided another VA examination on December 2020. The VA examiner opined that the Veterans asthma clearly and unmistakably existed prior to service was not aggravated beyond its natural progression by an in-service event, injury, or illness. The examiner's rationale was that there was no evidence of bronchial asthma on service treatment records. The VA examiner also opined that the claimed condition was less likely than not incurred in or cause by the claimed in-service injury, event, or illness. The examiner's rationale was that there was no evidence of asthma on the service records. The VA examiner stated that he could not opine if asthma clearly and unmistakably was not aggravated during the Veteran's active service or if aggravation was due to natural progression. The examiner explained that the only evidence of asthma during childhood is on the Veteran's own self-reported patient history during the Gulf War examination. There are no service records or private records provided before Veteran began active duty. In order for the presumption of soundness to attach there need to be no defects, infirmities or disorders noted on the enlistment examination. Based upon length of service, we accept that entrance examinations were conducted and are not available for review. Therefore, we conclude that asthma was not noted at entry to either period of service. However, the analysis does not stop at this point. Here, there is no reliable evidence that asthma preexisted service, other than the Veteran's own remote post service report. More importantly, there is no credible proof of asthma during service. We conclude that because there is no credible evidence of asthma prior to service or during service, the case is a traditional service connection case rather than one involving the presumption of soundness. The Veteran's report that he had asthma during service is inconsistent with the clinical records during service, the demobilization examination, and his specific denial of asthma at that time. The Veteran stated that in 1988 at Fort Campbell he experienced a reactivation of his asthma. The Veteran's service treatment record show that Veteran was only treated for a common cold in 1988 at Fort Campbell. While the note is not part of the record it was available to the June 2012 examiner which said the note stated it was only a common cold. The Veteran's service treatment records do not have any positive reports of asthma nor is there any medication provided or mention of asthma until October 2009, 18 years after active service. While the exact date of onset is unknown, there is no probative, credible evidence of asthma during service or attributing the remote onset to service. Here, we are presented with lay statements that vary. He has reported that asthma pre-existed service, asthma started during service, or asthma is related to the Gulf War experience. We conclude that the most probative evidence consists of the service records, the demobilization examination disclosing normal lungs and chest and his denial of asthma at that time. We also note that the post service records are remarkably silent as to asthma although reporting a host of other medical issues. It is not until long after service that asthma appears in the record. Although the Veteran may be competent to report that he has asthma (as that is in the medical record) and may be competent to report when the symptoms started, his lay recounting is inconsistent with the contemporaneous clinical records and is not credible. The preponderance of the evidence is against the claim and there is no doubt to be resolved. See 38 C.F.R. § 3.102 (2019). Stated differently, we factually reject that asthma pre-existed service. In addition, we find that there was no credible proof of asthma during either period of service as such is inconsistent with the service records, the normal demobilization examination and his specific denial at that time. Furthermore, asthma is a recognized diagnosis and not an undiagnosed illness. Rather, asthma was first manifest long after service and there is no reliable evidence linking the remote onset to service, to include his report of burn pit exposure. The Veteran's assertions as to onset have varied and he is not a credible historian as to this issue. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Associate Counsel for the Board Konieczny, Adam 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.