Citation Nr: 0007415 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 98-10 937 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for asthma. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD Stephen L. Higgs, Associate Counsel INTRODUCTION The veteran served on active duty from February 1969 to January 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in April 1998 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran has asthma which began or permanently worsened during active service. CONCLUSION OF LAW Asthma was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 1991 & Supp. 1998); 38 C.F.R. § 3.303, 3.304, 3.306 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran contends he has asthma which was permanently aggravated during service. A history of seasonal allergies was noted on the veteran's service entrance examination report of medical history in February 1969. The veteran indicated he did not have now and did not in the past have asthma. Asthma was not noted, either by history or upon clinical evaluation during the veteran's February 1969 enlistment examination. His pulmonary condition was profiled as a "1" during the February 1969 examination. Service medical records show that in August 1969 the veteran was diagnosed as having allergic rhinitis with an asthmatic component, and as having mild bronchial asthma. In September 1969, after thorough testing and review of the veteran's condition, separate diagnoses of allergic rhinitis and allergic asthma were rendered upon allergy consult. The veteran's pulmonary condition was profiled temporarily as a "3." Later in September, it was permanently profiled as a 3. On a December 1970 examination report of medical history, the veteran indicated that he now had or in the past had asthma. During the veteran's December 1970 discharge examination, clinical evaluation of the components of the respiratory system was normal; however, upon review of medical history the reviewing examiner rendered a diagnosis of allergic rhinitis and allergic asthma, well controlled. During a December 1997 VA examination, the veteran was diagnosed as having asthma, confirmed by history, hospital course and other testing. According to the examiner, the asthma was present from the age of 6 year old until his teens; however, this was seasonal. The examiner opined that the asthma changed to a persistent, chronic problem sometime around the years 1969 through 1971, which were also the years that the veteran was on active duty. Additional post-service medical evidence leaves no doubt that the veteran currently has asthma and has had asthma continuously since his separation from service. Analysis Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 1991). Regulations also provide that 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). The Board finds that the veteran's claim for service connection for asthma is well grounded, as there is evidence of inservice incurrence or aggravation, continuity of symptomatology until the present time, and medical evidence linking current asthma to service and diagnosing current disability. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998). A veteran who served during a period of war is presumed in sound condition except for defects noted when examined and accepted for service; clear and convincing evidence that the disability manifested in service existed before service will rebut the presumption. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. 3.304(b). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The presumption of aggravation is applicable only if the pre-service disability underwent an increase in severity during service. Hunt, 1 Vet. App. at 292, 296 (1991); see also Browder v. Brown, 5 Vet. App. 268, 271 (1993). A history of seasonal allergies was noted on the veteran's service entrance examination report of medical history in February 1969. Asthma was not noted, either by history or upon clinical evaluation during the veteran's February 1969 enlistment examination. That the veteran's history of seasonal allergies was noted tends to indicate that the veteran was forthcoming about his medical history at the service entrance examination. As will be discussed further below, the veteran was diagnosed as having asthma during service, first in August 1969. Congruent with the medical findings during service, on his February 1969 report of examination, the veteran indicated he had no history of asthma, while on his September 1970 examination report of medical history he indicated he had a history of asthma. Overall, then, both by history and clinical evaluation, the service medical records are to the effect that asthma was first noted during service, and not upon entry into service or prior to service. Thus, in this case, the presumption of soundness is for consideration for the veteran's asthma condition. Although there are medical opinions and records of treatment in the claims file which indicate that the treating and examining medical professionals believed that the veteran's asthma began prior to service, there is nothing which could be fairly characterized as "clear and convincing" evidence on this point. The question as to whether asthma pre-existed service or began during service is one which may not be sufficiently resolved for a fair-minded individual reviewing the evidence of record - at most, asthma likely pre-existed service, but the evidence is not clear and convincing. The veteran's separately diagnosed allergic rhinitis complicates any determination as to the time of onset of the veteran's asthma. The veteran's lay opinion that his asthma pre- existed service is not sufficient to resolve the issue. The presumption of soundness is not rebutted. Even were the Board to accept the veteran's concession that he had asthma prior to service, the presumption of aggravation would be for application in this case. The veteran entered service, acknowledging his seasonal respiratory problems, and was admitted as qualified for service after a presumably thorough examination. His pulmonary condition was profiled as a "1" as of February 1969. In August 1969, the veteran was diagnosed as having allergic rhinitis with an asthmatic component, and as having mild bronchial asthma. In September 1969, after through testing and review of the veteran's condition, separate diagnoses of allergic rhinitis and allergic asthma were rendered upon allergy consult. The veteran's pulmonary condition was initially profiled temporarily as a "3." Later in September, he was permanently profiled as a 3. During the veteran's December 1970 discharge examination, clinical evaluation of the components of the respiratory system was normal; however, upon review of medical history the reviewing examiner rendered separate diagnoses of allergic rhinitis and allergic asthma, well controlled. Thus, the service medical records are to the effect that the veteran's asthma permanently worsened during service, assuming one considers the onset of his asthma as having occurred prior to service. The December 1997 VA examiner opined that the veteran's asthma changed in character and permanently worsened, becoming "chronic" and "persistent," during service, confirming the impression conveyed by the service medical records. Accordingly, under the assumption the asthma pre-existed service, the presumption of aggravation is for application. The presumption of aggravation may only be rebutted by clear and unmistakable evidence that the condition did not worsen beyond natural progression during service. The medical evidence of record is completely silent as to whether the veteran's asthma worsened beyond natural progression during service. A complete absence of evidence on this point does not meet the evidentiary requirement of "clear and unmistakable evidence". The presumption of aggravation is not rebutted. As noted above, the medical evidence of record leaves no doubt that the veteran's asthma continued through service and remains a disability through the present time. In light of the foregoing, the Board finds that service connection for the veteran's asthma is warranted, whether viewed as a condition which was first incurred in service, or as a pre-existing condition which was permanently aggravated during service. ORDER Service connection for asthma is granted. JAMES A. FROST Acting Member, Board of Veterans' Appeals