Citation Nr: 18160399
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 17-03 328
DATE:	December 27, 2018
REMANDED
Entitlement to service connection for asthma is remanded.
REASONS FOR REMAND
The Veteran served from August 21, 1968 to February 6. 1969 as a trainee in the United States Army.
This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  The Atlanta, Georgia RO has current jurisdiction of the claims file.  
The rating decision on appeal denied service connection for asthma and service connection for emphysema.  While the Veteran filed a Notice of Disagreement (NOD) for both issues in November 2012 and June 2013 respectively, he filed a Substantive Appeal (VA Form 9) only for the issue of service connection for asthma in January 2017.  Hence, only that issue of entitlement to service connection for asthma is before the Board.

Asthma
A remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.
The Veteran contends that asthma was aggravated by service.  A review of the Veteran’s service treatment records (STRs) reveals that asthma was not indicated in the Veteran’s August 21, 1968 Induction Report of Medical Examination.  However, the examiner noted that clinical evaluation of the lungs and chest were not normal.  In a footnote, he indicated the “abnormality” of pectus carnitum, which is defined as “a group of deformities of the anterior chest wall characterized by convex protrusion of the sternum and of the costal cartilages on one or both sides.”  See Dorland’s Illustrated Medical Dictionary, 1400 (32nd ed. 2012).  The examiner also took note of pes planus and kyphosis.  The examiner did not provide a finding of asthma.  See STR – Medical, pp.3-5.  In September 3, 1968, after the Veteran’s induction into active service, an examiner reported that the Veteran had a chest deformity and asthmatic bronchitis, which prevented prolonged running.  Id. at p.6.  Findings in the January 27, 1969 Separation Report of Medical Examination include an examiner’s opinion that the Veteran was not qualified for induction into the Army; moreover, in a hand-written version of this Report, the physician’s summary includes language to the effect that the Veteran had asthma and dyspnea and pain in his chest, of which symptoms had been present as long as the Veteran could remember.  See id. at p.39 and p.37 respectively.
A veteran is presumed in sound condition except for defects noted when examined and accepted for service.  Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness.  38 U.S.C. § 1111.  A pre-existing disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease.  38 U.S.C. § 1153; 38 C.F.R. § 3.306.
In VAOGCPREC 3-2003, VA General Counsel determined that the presumption of soundness is rebutted only where clear and unmistakable evidence shows that the condition existed prior to service and that it was not aggravated by service.  The General Counsel concluded that 38 U.S.C. § 1111 requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition.  See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003).
In January 2012, a VA nurse practitioner (NP) that VA outpatient treatment records in 2011-12 showed a diagnosis and treatment for asthma. The NP noted the Veteran’s report of having shortness of breath during a two-mile training run in the 5th week of Army recruit training and that he was later diagnosed at an Army hospital with bronchial asthma and emphysema. In the examination report, the NP referred to pulmonary function and imaging studies and confirmed the diagnosis.
In an August 2012 addendum, the NP noted a review of the claims file, the record of the chest deformity at entry in service, a September 1968 pulmonary function test that showed no obstructive or restrictive lung disease, and a separation report that indicated that the Veteran had asthma with dyspnea and chest pain. The NP found that the asthma existed prior to service because unspecified medical literature reported that people with the chest deformity often experience shortness of breath, fatigue, and common concurrent mild to moderate asthma.  In a second addendum in September 2012, the NP further found that the Veteran’s asthma clearly and unmistakable existed prior to entry into service but (inconsistently) indicated that it was less likely than not aggravated beyond its normal progression by service.  The NP noted the Veteran’s report in January 1969 that he had asthma for as long as he could remember.  The NP noted that the one in-service episode and treatment for asthmatic bronchitis did not lead to sequelae or injury or trauma to the lungs and that it is not uncommon for people with asthma to have at least one attack or exacerbation of asthma in a given year.   
The August and September 2012 VA examination reports take note of the finding of “chest deformity” upon induction and the findings made as to asthma (asthmatic bronchitis) in a September 3, 1968 report.  Thus, the examiner checked a box that asthma “clearly and unmistakably existed prior to service [and] was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness” but in the text indicated that it was less likely than not aggravated. The opinion warrants less weight because of the inconsistency.  See September 27, 2012 VA Examination, p.3.  Moreover, the Board finds the examiner’s reliance upon the hand-written physician’s summary in the January 27, 1969 Separation Report of Medical Examination of the Veteran’s report of asthma for as long as he could remember to be an insufficient basis to rebut the presumption of soundness.
As noted, the examination conducted at the Veteran’s entrance to service on August 21,1968 does not indicate current asthma; therefore, the Veteran is presumed to have been sound at entry.  Considering the shortcoming in the 2012 VA examination and opinion, a more detailed opinion is necessary to determine whether there is clear and unmistakable evidence that the Veteran’s asthma pre-existed service and whether there is clear and unmistakable evidence that asthma was not aggravated or that any increase was due to the natural progression.  See 38 U.S.C. § 1111 (2012); Horn v. Shinseki, 25 Vet. App. 231, 234 (2014).
The matter is REMANDED for the following action.
1. Contact the Veteran and his representative and request that they provide or identify and authorize the recovery of any additional records of treatment for asthma.  If obtained, associate these treatment records with the claims file.
2.  Obtain and associate any updated VA treatment records with the claims file.  All records/responses received must be associated with the electronic claims file.
3.  Then arrange for an opinion with a VA examiner who has expertise in the field of respiratory disorders, (other than the examiner who conducted the August and September 2012 opinions).  The evidentiary record, including a copy of this remand, must be made available and reviewed by the examiner. Attention is directed to the 2012 examiner’s opinion that people with the chest deformity have concurrent asthma episodes and that the single episode in service did not aggravate any respiratory disorder beyond the normal progression.   
Upon completion of a review of the evidence, the examiner is asked to respond to the following inquiries:
a.	Whether the evidence clearly and unmistakably (i.e., it is undebatable) shows that the Veteran had asthma when he entered service on August 21, 1968.
b.	If the answer is yes, does the evidence of record clearly and unmistakably show that the preexisting asthma was not aggravated by service or that any increase in disability was due to the natural progression of the disease?
The Board observes “aggravation” in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability.
Complete rationales should be provided.  The examiner should reconcile any opinion with all other clinical evidence of record and the Veteran’s and other lay evidence.  The Board notes that the Veteran is competent to report his symptoms and history.  Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion.  If the examiner rejects the Veteran’s reports, she/he must provide an explanation for such rejection.
The examiner is requested to express agreement or disagreement with the 2012 NP opinions and provide additional medical reasons for the finding.  
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4. Upon completion of the above review of the expanded readjudicate the Veteran’s claim.  If a determination remains averse to the Veteran, the Veteran and his representative should be furnished with a Supplemental Statement of the Case.  An appropriate period of time should then be allowed before the record is returned to the Board.
 
J.W. FRANCIS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	B. J. Komins, Associate Counsel

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