Citation Nr: 21032731 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 18-40 448 DATE: May 27, 2021 ORDER Entitlement to service connection for bronchiectasis is granted. FINDINGS OF FACT 1. The Veteran is presumed sound with respect to bronchiectasis at service entrance. 2. The Veteran's bronchiectasis was first noted in service and bronchiectasis is a current disability. CONCLUSION OF LAW The criteria for entitlement to service connection for bronchiectasis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1961 to October 1962. He served honorably in the U.S. Army. The Board thanks the Veteran for his service to our country. The Veteran testified before the undersigned at a Board videoconference hearing in June 2019. A transcript of the hearing is of record. The Board previously remanded this case in October 2019 and October 2020 for additional development with respect to the questions of whether there was an in-service increase in severity of the disorder and, if so, whether there was clear and unmistakable evidence that such increase was due to the natural progress of the disease. The case has now returned to the Board for further appellate review. Entitlement to service connection for bronchiectasis is granted. The Veteran generally contends that service connection for bronchiectasis is warranted. The Board agrees. The presumption of soundness applies only 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). In this case, there is a question as to whether the Veteran's bronchiectasis preexisted his military service from December 1961 to October 1962: April 1962 service medical board proceedings stated that the Veteran's bronchiectasis existed prior to service. The Veteran's September 1961 entrance examination is absent of any notations of lung or chest defects, infirmities, or disorders, though chest pain was noted. Therefore, with respect to bronchiectasis, the presumption of soundness attaches. 38 C.F.R. § 3.304(b). Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). A May 1962 clinical record narrative summary stated that upon returning to his duty station in January 1962 following holiday leave, the Veteran reported to the hospital and in March of 1962 bronchograms were performed, revealing findings of bronchiectasis. The Veteran's in-service medical records, including medical board proceedings, consistently state that the Veteran's bronchiectasis preexisted service, including a May 1962 note in which the consensus opinion of a doctor and three officers is that the disorder "definitely existed prior to service." In a June 1962 note, comparing May 1962 X ray imaging with September 1961 pre-induction imaging, the provider noted the same findings of an increased triangular density, concluding, "[t]his is indisputable evidence of the existence of bronchiectasis prior to entry in service." There is no evidence that the disorder did not pre-exist service. The most competent and credible evidence of record shows that there is clear and unmistakable evidence that the Veteran's bronchiectasis preexisted service. Regarding the second prong, the government may show a lack of aggravation by establishing by clear and unmistakable evidence "that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). The Veteran's service treatment records consistently indicate that his disorder was not aggravated in service, including April 1962 medical board proceedings, a June 1962 discharge note, and July 1962 medical board proceedings. However, in a February 2021 opinion, the examiner apparently conceded that there was an in service increase in severity, stating that the worsening of his symptoms due to the underlying undiagnosed bronchiectasis was more likely than not the normal progression of the disease. The examiner again noted "the increase in severity of his condition" in another February 2021 addendum opinion. While the examiner stated that the increase was the "more likely than not" normal progression of the disease, the examiner did not provide or cite clear and unmistakable evidence that such increase was due to the natural progress of the disease; rather, the examiner stated that tobacco use was "a larger contributor to the natural ... worsening progression of bronchiectasis," indicating that there was at least one other cause of the increase in severity of the disease. The examiner elsewhere again stated that tobacco use "did contribute" to the disorder and surmised that he may have developed worsening symptoms "due to environmental etiologies" in his home state, but continued that there were, "[n]o records to definitively say" (emphasis added) before concluding that "his last origin prior to returning to base is the likely cause for the progression of his ... likely already existing bronchiectasis." The most competent and credible evidence of record illustrates that there is not clear and unmistakable evidence that the disability was not aggravated by military service. Therefore, the presumption of soundness has not been rebutted. When VA fails to carry its burden as to either preexistence or lack of aggravation, whether and to what extent the Veteran is entitled to compensation for the injury would be determined upon the assumption that the injury was incurred during service. It does not necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury. The Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service. Horn, 25 Vet. App. 231, 233. Certain chronic diseases, including bronchiectasis, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Here, the February 2021 VA examination report noted a current disorder of bronchiectasis which had been diagnosed in service and there are multiple in service notations of the bronchiectasis diagnosis. In a June 1962 note, the same infiltrate was observed in comparing September 1961 and May 1962 imaging and in a June 1962 narrative summary, the provider stated that the "nature of this abnormality is such that recurrent pneumonia can be expected, especially in an environment where physical activity and exposure must be expected." Further, the evidence does not clearly attribute subsequent manifestations to intercurrent causes; rather, the Veteran testified in June 2019 that his symptoms of little stamina and becoming easily fatigued had been ongoing since service. Accordingly, as Veteran's bronchiectasis was shown in service and currently, service connection for the disorder is therefore warranted. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Vashaw, 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.