Citation Nr: 1736656	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  10-49 091	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for a respiratory disability, to include asthma.


REPRESENTATION

Appellant represented by:	Adam S. Neidenberg, Esq.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

R. Connally, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant in this case, had active service in the United States Marine Corps from August 1989 to April 1992.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

In February 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file.  Additional evidence was received at the hearing and was accompanied by a waiver of RO consideration.  See 38 C.F.R. § 20.1304(c)(2016).

The Board previously considered this appeal in January 2017, and remanded this issue for further development in order to obtain a VA examination.  That development was completed, and the case returned to the Board for further appellate review.

The Board notes that the Veteran submitted a request for a second Board hearing in May 2017 as well as a private medical opinion in June 2017 without a waiver of RO consideration.  However, in light of the grant of the benefit sought, the Board finds that there is no prejudice.


FINDINGS OF FACT

1.  The Veteran has a current diagnosis for asthma.

2.  The Veteran's asthma clearly and unmistakably pre-existed entry to service.

3.  Reasonable minds can differ as it is not clear and unmistakable that the Veteran's asthma was not aggravated by service.

4.  The Veteran's asthma was incurred during service.

5.  The evidence is at least in equipoise as to whether there is a nexus between the Veteran's current asthma and the asthma condition that was incurred in service.


CONCLUSION OF LAW

The criteria to establish service connection for asthma have been met.  38 U.S.C.A. §§ 1101, 1110, 1111, 1131, 1137, 1153, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value.  When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016).  The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.  See Gilbert, 1 Vet. App. at 53.  The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.

Service Connection for a Respiratory Disability

The Veteran contends that his current respiratory disability is related to service.  Specifically, the Veteran asserts that his pre-existing asthma condition was aggravated beyond its natural progression due to service.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. § 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). 

A veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except (1) as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or (2) where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  See 38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304(b).  Only such conditions as recorded in examination reports are to be considered as "noted," and a history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions, but will be considered together with all other material evidence in determinations as to inception.  See 38 C.F.R. § 3.304(b); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995).  However, "the presumption only attaches where there has been an induction examination in which the later complained-of disability was not detected."  Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). 

Where the disease or injury at issue is not noted at the time of the examination, acceptance, and enrollment for service, the Veteran is presumed to have been in sound condition.  See 38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304(b).  The presumption of soundness is rebutted when VA shows by clear and unmistakable evidence (1) that the injury or disease existed prior to service and (2) that pre-existing injury or disease was not aggravated by service.  Id.; see also VAOPGCPREC 3-2003 (July 16, 2003).  Under 38 C.F.R. § 3.303(c), symptoms of chronic disease from date of enlistment, or so close thereto that the disease could not have originated in so short a period, will establish preservice existence thereof.  VA may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition.  See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).  However, the increase need not be so severe as to warrant compensation.  Browder v. Derwinski, 1 Vet. App. 204, 207 (1991).  In order to conclude that there was no aggravation in service, VA may not rest on the notion that the record contains insufficient evidence of aggravation.  Instead, VA must rely on affirmative evidence to prove that there was no aggravation.  Horn v. Shinseki, 25 Vet. App. 231, 235 (2012).  

First, the Board finds that the Veteran has a current asthma diagnosis.  Post-service treatment records throughout the period on appeal document the Veteran's ongoing treatment for symptoms of asthma.

Second, the Board finds that the presumption of soundness is not rebutted.  While the evidence of record clearly and unmistakably demonstrates that the Veteran was diagnosed with asthma prior to entering service, it is not clear and unmistakable that the condition was not aggravated by service.  Accordingly, the Board also finds that the evidence is at least in equipoise as to whether the present condition manifested during active service.

The Veteran's August 1988 Report of Medical History shows that the examiner recorded a prior history of asthma until age 11, but was "NCD" (not considered disqualifying).  However, the contemporaneous entrance examination did not note any abnormalities of the lungs and otherwise found the Veteran as qualified for service.  His physical profile also did not list any abnormalities.

A March 1991 Medical Board (MB) report stated that the Veteran had a life long history of asthma, which was quiescent between the ages of 11 and 18 years old.  The MB report said that this evaluation of asthma was "not considered disqualifying" on the Veteran's entrance examination.  The MB report noted that the Veteran was found "not recommended for overseas duty secondary to asthma" on an overseas screening dates February 26, 1990.  The report noted that the Veteran had multiple exacerbations of his asthma while stationed in Twenty-Nine Palms where the disease recurred shortly after his completion of boot camp and had multiple exacerbations since stationed on Okinawa.  The MB report noted that the Veteran had an exacerbation of his disease immediately on arrival in Okinawa and wheezed especially at night with an occasionally productive cough, yielding a small amount of tenacious cloudy sputum.  He was variously treated as an outpatient and was unaware of his medications at the time of initial evaluation.  The Veteran was prescribed various medications in order to help alleviate symptoms of wheezing, cough, and rhinorrhea.  The MB report diagnosed the Veteran with chronic allergic rhinitis and allergic asthma.  The MB report also found that both diagnoses existed prior to service and were not aggravated by service.

In March 1991, the Veteran filed a statement of rebuttal to MB report and the Discharge of Erroneous or Defective Enlistment.  The Veteran argued that his asthma disability was not quiescent between the ages of 11 and 18.  However, the Veteran then said that during the ages of 11 to 18 he participated in numerous physical activities including sports and dance without incident, proving that he had outgrown his asthma diagnosis, which the Board notes would tend to prove his position that his asthma was inactive.  The Veteran also said that he informed his recruiter of the prior asthma diagnosis.  He stated that during his entrance examination he participated in a series of medical testing and was determined medically fit for the military.  The Veteran did not agree that he should be separated by reasons of erroneous or defective enlistment due to his asthma.  He did not believe he was erroneously or defectively enlisted because his asthma symptoms did not occur again until seven and a half years after his last asthma attack.  The Veteran then affirmed his belief that his childhood asthma problems reoccurred due to the military.

A February 1992 MB report diagnosed the Veteran with allergic rhinitis and reactive airway disease.  This second MB report noted that the Veteran had complaints of frequent episodes of wheezing and shortness of breath while stationed in Camp Lejeune.  His symptoms were noted to be worse with moderate to heavy exercise and especially in damp, cool environments.  He was placed on prolonged periods of light duty, and excluded from any field duty.  His medications were found to be "only [sporadically] effective in preventing and breaking attacks."  The second MB report made specific findings that the Veteran "has a well-documented asthma history in his chart.  He has never required hospitalization for treatment.  His past medical history is significant only for a long history of allergic rhinitis."  As a result, he was found unfit for further military duty due to a physical disability.  The second Medical Board also determined that the Veteran's physical disability was neither incurred in, nor aggravated by active military service.  The Veteran received a medical discharge in April 1992.  

The Veteran testified before the undersigned in February 2015.  Therein, he endorsed having problems with asthma as a child, but stated that he "totally overcame that problem."  He also said that as a child he was treated by a doctor for shortness of breath and prescribed an inhaler for emergencies, though he did not recall ever having to use the medication.  The Veteran explained that he did not have any asthma problems upon entrance into service and "breezed" through boot camp and infantry training.  He said that it was not until he was transferred to Twenty-Nine Palms, California where he began experiencing asthma symptoms after a seven and a half-year remission.  The Veteran also endorsed an increased worsening in asthma symptoms since service.  The Veteran is competent to report symptomatology relating to his asthma because this requires only personal knowledge as it comes to him through his senses.  See Layno v. Brown, 6 Vet. App. 465 (1994).  He is also competent to report on his prior asthma symptoms as they are supported by a later diagnosis from a medical professional.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

The February 2017 VA examiner observed the following based on her review of the Veteran's service treatment records: the Veteran's August 1988 entrance physical showed that he reported a history of childhood asthma with no symptoms since age 11; the entrance examiner indicated that the Veteran's asthma was "NCD" (not considered disqualifying) and the Veteran was admitted to service on August 2, 1989.  The examiner noted that a treatment note from August 4, 1989, indicated the Veteran was referred to sick call, but the VA examiner could not determine if this was related to his reported history of asthma or other symptoms; the Veteran's chief complaint, as reported in this service treatment record, was for complaints of asthma.  The entrance examiner indicated that the Veteran had complaints of asthma since age 12, but that he was "Completely ok;" and the entrance examiner questioned a diagnosis of asthma and the treatment or recommendations were unclear to the VA examiner, with the only notation being "CMR" and "RTC with [sic];".  The examiner noted that the Veteran was seen in October 1989 complaining of shortness of breath; his examination revealed clear lungs and he was discharged, but told to return for repeat symptoms.  The Veteran was then treated in February 1990 for wheezing, and his lung exam was notable for wheezing, so he was prescribed multiple medications, which included an inhaler. The Veteran subsequently had repeated visits for asthma symptoms which eventually led to his being referred for an Internal Medicine evaluation for his symptoms and consideration of possible medical board in December 1990.  Prior to his referral, the Veteran's symptoms and history resulted in his initially being disqualified for overseas training based on a screening examination performed in February 1990.  He was later cleared for deployment in May 1990, however, as mentioned, by December 1990, symptoms were persistent; repeated visits were noted and asthma exacerbations were found over his remaining years in service with his requiring repeated refills for bronchodilators as well as limited duty restrictions at times.  The Veteran also underwent a physical evaluation board in February 1992 and was then discharged from service in April 1992, although it was unclear to the VA examiner if the Veteran's ultimate reason for separation was related to his medical board evaluation or due to an administrative separation for his claim of being a "conscientious objector."

The February 2017 VA examiner opined that the Veteran's asthma, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness.  The VA examiner explained, "[The] Veteran's onset of breathing difficulty within two days of entrance into service suggest he had [a] disease [that] was not manifested previously due to environmental conditions being different possibly, as well as the more strenuous nature of physical activity in service."  She stated, "[The] Veteran has reported being prescribed an inhaler when he was a child for his breathing symptoms in his [November] 2016 Statement in Support of Claim, but reported he never used it and suggested he only required over the counter medications, referring to Vicks Vapor Rub and cough syrup."  

However, the February 2017 VA examiner noted that the Veteran's service entrance Report of Medical History, dated August 4,1988, indicated that he had asthma until age 11 and "took medication."  The VA examiner also found that the Veteran reported during that physical that he had not had asthma symptoms since age 11; however, on his overseas screening Report of Medical History, dated February 26, 1990, the VA examiner point out that the Veteran affirmatively indicated he was seen at a hospital in April 1989 for an asthma attack that was triggered at work.  The VA examiner observed that this treatment record further elaborated that the Veteran was "seen and treated for asthma at hospital for 5 [sic]."  According to the VA examiner, the quantifier is not legible, but appeared to indicate the symbol used in medical documentation for hours (rather than days).  In addition, the Veteran affirmatively indicated for question 18c that he was "a busboy of a restaurant and it got [too] hot one [night].  It caused [the Veteran] to have an attack."  The VA examiner found that no date was provided for this event; however, she assumed he was not working as a busboy at age 11 and his asthma event was likely at an age later than that he reported as his last episode of asthma symptoms on his service entrance examination.  

The February 2017 VA examiner reasoned, "No matter the date, [the Veteran's] responses for his overseas screen are in direct contradiction to the history he offered on his [entrance examination Report of Medical History] and are indicative [of] an ongoing disease prior to admittance to service."  In addition, the VA examiner found that the Veteran's report from the August 4, 1989 evaluation due to his history of asthma that he had only "...one asthma attack since age 12," was contrary to his report on the entrance Report of Medical History.  The VA examiner further expressed that the "Veteran's presentation within two months of entrance to service in October 1989 suggests that his disease was not quiescent for years given he was symptomatic so quickly."  

The VA examiner summarized her findings by stating that the inconsistencies reported in the Veteran's admissions and later overseas screening exams "suggest his symptomatology was minimized at entrance and therefore, it is not felt that the Veteran's asthma, which was significant enough to result in a hospital visit in [April] 1989, just 4 months prior to entrance, was not aggravated by service."  In addition, the VA examiner noted that the "more frequent attacks in relationship to dust exposure or exercise, conditions which the Veteran reports being subjected to while in service and particularly in Okinawa, are not representative of aggravation of asthma, but rather the natural course of this particular disease process."  The VA examiner also pointed out that the Veteran was documented in February 1990 as smoking ("7cig/day"), which she said can also cause exacerbation of asthma symptoms.  In conclusion, the VA examiner noted her review of current medical literature and found that while the Veteran reported his symptoms were resolved for years prior to service, this is not considered to represent a resolution of asthma.  Based on article abstracts, included in the VA examination opinion, the examiner found that there is "evidence that certain individuals, up to 50 [percent] by one report, are at risk for relapse.  As such, [the Veteran's] recurrence of symptoms [is] again not representative of an aggravation, but part of the natural course for some patients."  She also found it "questionable" if the Veteran "was completely free of symptoms as previously discussed and thus, negates this argument besides the medical evidence."  Based on the foregoing, the VA examiner found that the Veteran's current disease severity "is not considered abnormal or deviant from the normal course for this condition."

The June 2017 private examiner opined that the Veteran's service treatment records "clearly show that his asthma was aggravated beyond the natural history of the disease by his military service."  The private physician noted that the Veteran did not have any documented treatment between ages 11 to 18.  She pointed out that the Veteran completed boot camp without any medical complications, and that he only began to experience asthma symptoms associated with dust exposure when he was stationed at Twenty-Nine Palms, California in the fall of 1989.  The private examiner noted that the Veteran's "first in-service wheezing was documented in February 1990 in the setting of viral bronchitis."  She also observed that an overseas screening from February 1990 documented an "overall mild course of asthma."  The private physician also found that the Veteran endorsed an "undated prior episode of difficulty breathing and an attack in April 1989 requiring a 5-hour hospital evaluation for asthma; there are no other records confirming that event and all other available documentation in the service medical records documents a complete lack of asthma symptoms prior to February 1990."  She further pointed out that the "remainder of the Veteran's service [treatment] records document the progressive nature of his symptoms, requiring frequent evaluations at the Battalion Aid Station, referrals to medical specialists, emergency room treatment, and an escalating course of medications to include daily inhaled steroids and frequent use of an albuterol rescue inhaler."  She concluded, "By the time of his medical discharge in 1992, [the Veteran's] asthma was significantly worse than it had ever been during his childhood as evidenced by the prescribed chronic daily inhaled steroid."

The June 2017 private physician also commented on the February 2017 VA examiner's opinion that the Veteran's asthma "was not aggravated beyond its natural progression due to service because his symptoms manifested early in his military course."  The private examiner observed that the August 1989 treatment note "appears to be addressing his reported history of asthma rather than any acute symptoms, although the brief note is not entirely clear either way."  She elaborated, "In my clinical experience working with Marine Corps recruits, however, I find it highly unlikely that a recruit experiencing respiratory symptoms would be sent back to training without close follow-up.  Generally, recruits are seen in sick call daily until back to their usual condition."  She further stated, "I think that the note dated [August 4, 1989] in the medical record is unclear, I disagree with the [VA] examiner that the Veteran clearly and unmistakably experienced 'onset of breathing difficulty within two days of entrance into service.'"  The private physician then stated, "The medical record does not support such a strong claim."  She observed that the VA examiner relied on the Veteran's comments found on his February 1990 overseas screening form that he had a recent asthma attack shortly before his entrance into service.  However, the private physician found that this one form "contradicts all the other documentation in the medical records," which she said "include multiple treating corpsman and physicians across multiple clinics and hospitals over the course of two and a half years."  In her professional opinion, the private physician said, "[T]he record is not clear and unmistakable on this point."

The June 2017 private physician also commented on medical literature as it pertains to the natural history of childhood asthma and military recruits.  She found, "While the majority of childhood asthmatics remain asymptomatic, a significant minority do have a recurrence of symptoms in early adulthood."  She then noted that the VA examiner also cited a 2009 comparative study of 24 subjects with a history of childhood asthma in remission and found that 40-50 percent of that group had elevated laboratory findings suggestive of airway hyper-responsiveness and that they might be at risk of future relapse.  The private examiner commented that while this study is important to furthering medical knowledge in that it identifies a target for future research and intervention, "it is not a study of clinical outcomes and does not identify patients who do relapse."  She then identified additional, larger studies that specifically examined military populations and the risk of asthma recurrence.  She summarized that the three studies of large military cohorts that she discussed in her opinion "are more pertinent to [the Veteran's] clinical situation than the [study cited by the VA examiner]."  

Moreover, the June 2017 private physician explained why her three studies were more probative than the study presented by the VA examiner, "They demonstrated that the demands of military service such as heavy exercise and exposure to environmental triggers were well tolerated by most soldiers with a history of childhood asthma that had been quiescent during adolescence, and even by those with active but mild disease upon entrance."  She continued, "Notably, military recruits, even those with mild, active asthma who successfully completed basic training-as [the Veteran] did-went on to have the same military performance, health care utilization, and attrition as their nonasthmatic cohort."  In her opinion, the majority of the service treatment records "supports that [the Veteran's] asthma was quiescent for approximately seven years prior to his enlistment, but even in the setting of a single asthma exacerbation in 1989, his asthma would have been qualified as mild, intermittent given that he did not require daily medication use for control."  She reported that the Veteran's asthma had progressed during his time in service as evidenced by the February 1992 physical evaluation board's narrative that the Veteran had "prolonged periods of light duty, excluding him from any field duty," as well as daily use of inhaled controller medication.  She found that this evidence of progression represented "a significantly more severe disease process than would be expected based on studies of comparable soldiers, and a significantly more severe disease process than would be expected based on his mild childhood disease."  In conclusion, the private physician found that the Veteran's asthma remains persistent and severe, requiring two controller medications and one rescue medication for control.  She opined, "Given the unexpected severity of his asthma, it is at least as likely as not that [the Veteran's] asthma was permanently aggravated beyond its natural progression over the course of his military service."

Based on the foregoing, the Veteran's history of pre-service existence of asthma recorded at the time of the entrance examination does not constitute a notation of such conditions.  However, when considered together with the two Medical Board reports, the service treatment records, the Veteran's statements of record, and the two post-service medical examination reports that affirmatively discuss inception of the condition prior to service, the evidence clearly and unmistakably shows that the Veteran's asthma preexisted service.  See 38 C.F.R. § 3.304(b); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995).  

Next, the Board finds that it is not clear and unmistakable that the Veteran's asthma was not aggravated by service.

The February 2017 VA examiner opined that the Veteran's asthma was not aggravated due to service.  The VA examiner's opinion relied on showing no increase in severity during service; however, the June 2017 private examiner adequately explained that the Veteran's asthma symptoms did in fact progress.  The private examiner discussed how the Veteran had increased usage of medications after he was treated for asthma in February 1990, and also how the Veteran continued to seek treatment for increased symptoms during service.  This would tend to prove that his condition was aggravated by service due to increased medication usage and increased severity of symptoms.  The VA examiner also did not account for the Veteran's credible lay statements as to the onset of symptoms, specifically failing to address the Veteran's credible statements of treatment prior to service as well as complaints regarding the progressive severity of asthma symptoms during service and thereafter.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding that the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible); cf. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that a VA opinion was inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide a negative opinion).  See also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."); see also Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 302 (2009).  

Additionally, the VA examiner based the negative aggravation determination primarily on the fact that the Veteran was possibly treated for asthma symptoms prior to service entrance.  However, as noted by the June 2017 private examiner, the August 4, 1989 service treatment record is not entirely clear about whether there was actual treatment for asthma at this time or if it was only a documentation pertaining to the history of the Veteran's symptoms.  The private physician also found that while the Veteran may have endorsed an "undated prior episode of difficulty breathing and an attack in April 1989 requiring a 5-hour hospital evaluation for asthma;" but she also noted that "there are no other records confirming that event and all other available documentation in the service medical records documents a complete lack of asthma symptoms prior to February 1990."  The private physician further pointed out that the subsequent service treatment records document a progressive nature of the Veteran's asthma symptoms, such as requiring frequent evaluations at the Battalion Aid Station, referrals to medical specialists, emergency room treatment, and an escalating course of medications, to include daily inhaled steroids and frequent use of an albuterol rescue inhaler.  Unlike the VA examiner, the private physician made a finding that the Veteran's symptoms not only increased in severity during service, but also have remained persistent and severe since separation, which is further supported by VA treatment records showing continued treatment for asthma symptoms.  

Based on the foregoing, the Board finds that because reasonable minds can differ, it is not clear and unmistakable that the Veteran's asthma was not aggravated by service.  Therefore, the Veteran is presumed sound at entrance.  

It follows then, based on the presentation of the facts above, that the evidence is at least in equipoise that the Veteran's asthma was incurred during service as both of the post-service medical examination opinions discuss the presence of asthma symptoms occurring during service.  As a result, because the Veteran's asthma was incurred in-service and VA treatment records show a current diagnosis for asthma, this also supports the Board's finding that that the evidence is at least in equipoise as to whether there is a nexus between the present asthma disability and the asthma condition that was incurred in service.  In particular support of this finding, the June 2017 private physician opined that the Veteran's symptoms not only increased in severity during service, but also have remained persistent and severe since separation.  Thus, service connection for asthma must be granted.  



Duties to Notify and Assist

VA has duties to notify and assist veterans in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016).  The Board is granting, in full, the benefit sought on appeal and thus VA has no further duty to notify or assist.


ORDER

Service connection for asthma is granted.



____________________________________________
H. SEESEL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s