Citation Nr: 0000195 Decision Date: 01/05/00 Archive Date: 12/28/01 DOCKET NO. 98-08 859 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for asthma. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. A. Seaman, Associate Counsel INTRODUCTION The veteran served on active duty from January 1979 to November 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 1997 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which denied the veteran's claim of service connection for asthma. In the October 1997 decision, the RO granted service connection for degenerative joint disease of the cervical spine, evaluated as 10 percent disabling. Service connection was also granted for hallux valgus deformity of the right great toe; hallux valgus deformity, status post bunionectomy, left great toe; and a residual scar, status post appendectomy, each evaluated as zero percent disabling. A combined disability rating of 10 percent was awarded, effective January 27, 1997. FINDINGS OF FACT 1. The medical evidence on file shows that the veteran has a current diagnosis of asthma. 2. The veteran has acknowledged that her asthma preexisted service. Furthermore, her service medical records indicate that the veteran's asthma preexisted her active duty, and reflect that the veteran complained of and was treated for asthma on numerous occasions from November 1979 through August 1993. 3. The veteran has asserted that her asthma was aggravated by her military service. CONCLUSION OF LAW The claim of entitlement to service connection for asthma is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Savage v. Gober, 10 Vet. App. 488 (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSION In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C.A. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well-grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet. App. 19, 21 (1993). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing post-service continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). The Court has held that if the disability is of a type as to which lay observation is competent to identify its existence (conditions that lend themselves to lay observation such as flat feet), medical causation evidence may not be necessary. Savage, supra, Layno v. Brown, 6 Vet. App. 465, 470 (1994); Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993); Budnik v. Derwinski, 3 Vet. App. 185, 186-87 (1992); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (citing Harvey v. Brown, 6 Vet. App. 390, 393 (1994). In the case of a disease only, service connection also may be established under section 3.303(b) by (1) evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statute or regulation, during the applicable presumption period; and (2) present disability from it. Savage, 10 Vet. App. at 495. Section 3.303(b) provides that continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Moreover, a condition "noted during service" does not require any type of special or written documentation, such as being recorded in an examination report, either contemporaneous to service or otherwise, for purposes of showing that the condition was observed during service or during the presumption period. Id. at 496-97. Either evidence contemporaneous with service or the presumption period or evidence that is post service or post presumption period may suffice. Id. Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. However, medical evidence is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one as to which a lay person's observation is competent. Id. at 497. A veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed to be in sound condition except for defects, infirmities, or disorders noted when examined and accepted for service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that a disease existed prior to service. 38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active military service, where there is an increase in disability during such service, unless there is specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a). Temporary flare-ups will not be considered to be an increase in severity. Hunt v. Derwinski, 1 Vet. App. 292, 295 (1991). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during active service. Aggravation may not be conceded, however, where the disability underwent no increase in severity during service. 38 C.F.R. § 3.306(b). The determination whether a preexisting disability was aggravated by service is a question of fact. Doran v. Brown, 6 Vet. App. 283, 286 (1994). Background. The veteran acknowledges that she suffers from an asthma condition that preexisted her entrance into active duty in 1979, but contends that the asthma was aggravated by her military service. Service medical records indicate that the veteran's asthma preexisted her active duty, and reflect that the veteran complained of and was treated for asthma on numerous occasions from November 1979 through August 1993. Private medical reports reflect that the veteran received post-service treatment for asthma in November 1995 and February 1996. Allergy testing in November 1995 revealed that the veteran had multiple allergic reactions to environmental factors. The veteran filed her claim in January 1997, and she was accorded VA examination in June 1997. She told the June VA examiner that she had suffered from asthma all of her life, and reported that she was treated for asthma many times while in service. The examiner noted that the veteran reported that her asthma had worsened since separation from service. She complained of asthma attacks occurring almost daily, usually at night, with considerable chest congestion and wheezing. However, the examiner also noted that neither the veteran's claims folder nor her service medical records were provided for review prior to the examination. Objective examination revealed that the veteran was in no acute distress. Pulmonary examination revealed marked wheezing in all quadrants. A chest X-ray showed a normal chest. Diagnosis was bronchial asthma, moderate to marked. No opinion was provided as to whether the veteran's asthma was aggravated by her active service. The veteran underwent pulmonary function testing at a VA medical facility in July 1997. The veteran's cough was noted as non-productive, but wheezing was frequent. Diagnosis was "moderate-to-severe obstructive airway disease, however subminimal exam performed." The RO issued a decision in October 1997 which held that the evidence had not established that the veteran's asthma, "which clearly existed prior to enlistment, was not permanently worsened beyond normal progression as a result of military service." The veteran's claim was denied, and she initiated the instant appeal. In the substantive appeal (VA Form 9), and in other correspondence to the RO, the veteran stated that she does not dispute that she has had an asthma condition "since birth." She noted that during service, the asthma was controlled "with proper medication, provided by the military," and thus she did not have to be excused from field duty or physical training. She recalled being stationed in Europe and Asia for seven years in "countries well known for their colder and harsher weather conditions." She contends that her asthma condition was aggravated by numerous and lengthy outdoor training exercises. The veteran also stated that she did not tell the VA physician, during the June 1997 VA examination, that her asthma had worsened since separation from service. Rather, she contended that she was unable to keep the asthma under control because she was unable to afford proper medication after separation from service. The veteran also stated that the VA examiners who performed the pulmonary function tests in July 1997 were "adamant" that she immediately contact another medical care provider, as the results of the tests were "very poor." Significantly, the veteran also reported that shortly after the July 1997 pulmonary function tests, she was seen by a VA physician at a VA medical facility in Tucson, Arizona, in August 1997. The veteran contends that this physician told her she had a "severe asthma condition," and prescribed daily asthma medication. The veteran alleges that that was the first time daily medication had ever been prescribed for her asthma. Analysis. In the instant case, the Board finds that the veteran's claim of service connection for asthma is well grounded in that it is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990); see also Crowe v. Brown, 7 Vet. App. 238 (1994). Moreover, the Board notes that asthma is a chronic condition, for which the veteran received medical treatment while on active duty. The veteran has alleged that her asthma was aggravated by her active service, and the post-service medical records confirm continuity of symptomatology since her discharge. Thus, the claim is well grounded pursuant to the guidelines of Savage, supra. Adjudication of the veteran's claim of service connection for asthma does not end with the finding that the case is well- grounded. In determining that the veteran's claim is well- grounded, the credibility of evidence has been presumed and the probative value of the evidence has not been weighed. However, once the claim is found to be well grounded, the presumption that it is credible and entitled to full weight no longer applies. In the adjudication that follows, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of material contained in a record; every item of evidence does not have the same probative value. For the reasons stated below, the Board finds that additional development is necessary for a full and fair determination of the veteran's claim. Accordingly, a remand is necessary in the instant case. ORDER The claim of entitlement to service connection for asthma is well grounded. To this extent only, the appeal is granted. REMAND Because the claim of entitlement to service connection for asthma is well grounded, VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy, supra. As stated above, the veteran reported that shortly after the July 1997 pulmonary function tests, she was seen by a VA physician at a VA medical facility in Tucson, Arizona, in August 1997. The veteran contended that this physician told her she had a "severe asthma condition," and prescribed daily asthma medication. However, there is no indication of record that the RO took any action, by way of obtaining pertinent medical records, based upon the veteran's statements indicating that she received additional medical attention at a VA facility. In the instant case, the Board finds that the veteran's statements provide credible evidence that she received medical attention at a VA medical facility in Tucson, Arizona. The Court has held that where a veteran has asserted that pertinent medical records are in existence and are in the Government's possession, any such records which are in existence are constructively of record. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The failure of the RO or the Board to consider any pertinent records of VA treatment which are in existence, even though not actually in the records assembled for appellate review, may constitute clear and unmistakable error. The fact that there is evidence of record suggesting that the veteran's asthma was not aggravated by service does not abrogate VA's duty to collect and review all the evidence within its possession. Because these records are in VA's "possession" pursuant to Bell, but are not yet associated with the veteran's claims file, the Board concludes that a remand is required on the facts of this case. Furthermore, the Board notes that this obligation would apply even if the veteran had not submitted a well-grounded claim. Moreover, the Board is of the opinion that a competent medical opinion is necessary to make a full and fair determination as to whether the veteran's asthma was aggravated by her active service. See Crowe, 7 Vet. App. at 247-248. As mentioned above, the veteran did undergo a VA examination in June 1997. However, the examiner noted that neither the veteran's claims folder nor her service medical records were available for review prior to the examination. Consequently, no opinion was proffered by the examiner as to whether the veteran's asthma was aggravated by service, nor was it possible for the examiner to make such an opinion. Accordingly, the Board finds that a new examination is required in the instant case. For the reasons stated above, this case must be REMANDED for the following action: 1. The veteran should be allowed to submit additional lay and medical evidence in support of her claim. The RO should request the veteran to identify all medical professionals from whom she has obtained treatment since July 1997, and obtain from all sources identified by the veteran any such records that are not already associated with the claims file. Regardless of any reply from the veteran, the RO should obtain medical records concerning the veteran from the VA Medical Center in Tucson, Arizona. 2. After the development requested above has been completed to the extent possible, the veteran should be afforded a new examination to evaluate the current nature and severity of her asthma. The claims folder should be made available to the examiner for review before the examination. The examiner should elicit a detailed history from the veteran as to the symptoms of asthma which she experienced before service, during service, and after service. The examiner must express an opinion as to whether it is as likely as not that the veteran's asthma underwent a permanent increase in severity during service. If the examiner determines that the asthma underwent a permanent increase in severity during service, an opinion must also be given as to whether the increase in severity was due to the natural progression of the condition. 3. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the medical examination to ensure that it is responsive to and in compliance with the directives of this remand and if it is not, the RO should implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing any additional development deemed necessary, the RO should readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefit requested on appeal is not granted to the veteran's satisfaction, the veteran and her representative should be furnished a Supplemental Statement of the Case and an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. Gary L. Gick Member, Board of Veterans' Appeals