Citation Nr: 0000287 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 94-02 150 ) 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: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Cryan, Associate Counsel INTRODUCTION The veteran had active service from November 1967 to October 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from an April 1993 rating decision by the Chicago, Illinois Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for asthma. The veteran appealed that determination. The veteran testified before a hearing officer at the RO in January 1994. Board decisions dated January 1995 and July 1996 remanded the case back to the RO for further development, and the case was subsequently returned to the Board. In the April 1993 rating decision, entitlement to service connection for PTSD, injuries to the right and left knees, and breathing problems due to exposure to Agent Orange was denied. The veteran timely appealed the issues of PTSD and left knee disability. The issue of service connection for a left knee disability was denied as not well-grounded in a Board decision dated July 1996. The Board remanded back to the RO the issue of entitlement to service connection for PTSD in July 1996. The RO subsequently granted entitlement to service connection for PTSD in a November 1998 rating decision. The veteran did not appeal that decision. FINDINGS OF FACT 1. All evidence required for an equitable decision on the merits of the veteran's claim for service connection for asthma has been obtained. 2. The preponderance of the medical and other evidence of record establishes that the veteran's asthma existed prior to his enlistment in active military service and did not permanently increase in severity therein. CONCLUSION OF LAW 1. There is clear and unmistakable evidence that the veteran's asthma existed prior to service, and the presumption of soundness with regard to that issue is rebutted. 38 U.S.C.A. § 1111 (West 1991). 2. The veteran's pre-existing asthma was not permanently aggravated by his military service. 38 U.S.C.A. §§ 1110, 1111, 1137, 1153, 5107(a) (West 1991); 38 C.F.R. § 3.303, 3.304, 3.306 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background A review of the service medical records reveals that documents associated with the veteran's September 1967 entrance physical examination reveal no complaints, findings, or diagnosis of asthma; although the veteran then checked a box indicating that his father had a history of hay fever and hives. During service, the veteran was treated on various occasions in 1968 and 1969 for shortness of breath, sputum collection, coughing and wheezing. The report of a September 1969 Medical Board Evalulation indicates that, in August 1969, the veteran had been admitted to the Naval Hospital in Great Lakes, Illinois, with a diagnosis of asthma. It was noted that the veteran then related a life-long history of asthma requiring almost constant use of bronchodilators. The veteran reported that following his deployment to Vietnam, he experienced several episodes of dyspnea, cough and wheezing which responded to treatment with subcutaneous epinephrine and Tedral (although his service personnel records indicate that the veteran was sent to Vietnam in November 1968, and his SMRs indicate that he was treated for wheezing as early as June 1968, nearly 5 months prior to his deployment in Vietnam). The Medical Board noted chest x-ray, electrocardiogram, and pulmonary function studies were all normal; that treatment with Tedral tablets four times daily was continued; and that the veteran had remained asymptomatic throughout his hospital stay. The diagnosis was asthma. In October 1969, the veteran was medically discharged from service based upon Medical Board conclusions that the veteran's asthma existed prior to enlistment and was not aggravated during service. Post-service medical evidence of record includes a February 1970 hospital admission report from the Jacksonville State Hospital as well as an August 1986 hospital admission report from San Antonio Community Hospital. In addition, the veteran was afforded VA medical examinations at the St. Louis VA Medical Center in December 1992. During admission to the Jacksonville State hospital for psychiatric complaints, physical examination revealed inspiratory and expiratory wheezing throughout the lung fields. The veteran reported that he was a chronic asthmatic. Chest x-ray revealed pulmonary calcifications. The veteran received treatment from the San Antonio Community Hospital's respiratory therapy department in August 1986. Physical examination upon discharge revealed no acute distress, although respiratory excursions were somewhat limited. Auscultation revealed wheezing with minimal rales and rhonchi in the dependent portion of both lungs. The wheezing was expiratory in nature. Diaphragmatic excursion was felt to be somewhat limited. It was noted that the veteran is a heavy smoker. The diagnosis was bronchial asthma. During the December 1992 trachea and bronchi examination, the veteran reported that his breathing problems began when he was shifted out of Vietnam to Japan. The veteran reported difficulty breathing and wheezing with a history of smoking about half a pack of cigarettes per day. The veteran denied that any of his brothers and sisters had asthma. Physical examination revealed a lot of coarse rales in the chest with inspiratory and expiratory wheezes bilaterally. The veteran had a non-productive cough. The veteran was diagnosed with chronic obstructive lung disease. A chest x-ray showed heart size within normal limits. A well-defined, calcific focus was noted at the left base, consistent with a granuloma. There was no evidence of active pulmonary disease. Another December 1992 VA examination indicated that the veteran's diagnosed asthma dated back to the late 1960's (apparently, based on a history provided by the veteran that he served in Vietnam and had breathing problems since that time, as there is no indication that the examiners had the benefit of a review of the veteran's service medical records, as noted above). Other medical records indicate that the veteran was treated for asthma in 1994. The veteran testified before a hearing officer at the RO in January 1994. The veteran testified that he did not have breathing problems before entering active duty. In January 1995, the Board remanded the case back to the RO for additional development. The majority of the records subsequently received pertain to the veteran's claim for service connection for a psychiatric disorder. However, post-service hospitalization and outpatient treatment records reflect diagnoses of and treatment for chronic obstructive pulmonary disease, primarily in 1994 and 1995. Supplemental service medical records dated between 1967 and 1969, essentially duplicative or cumulative of those already of record, also were received. In July 1996, the Board determined that the additional evidence obtained did not adequately address the issue of whether the veteran's asthma pre-existed service, and if so, whether it was aggravated therein. As such, the Board remanded the case for medical evaluation and opinon based upon a review of all of the medical evidence of record. The Board requested that the examiner offer opinion as to the date of onset of the veteran's asthma, and if the asthma preexisted service, whether the preexisting asthma worsened during service. The veteran underwent VA examination in February 1999. The examiner indicated that he reviewed the veteran's medical records prior to the examination. Physical examination revealed blood pressure within normal limits at 140/72. Apical pulse was 78, respirations were 20. Lungs were essentially clear to auscultation. There were some bilateral expiratory wheezes. Chest x-ray revealed a mild degree of interstitial fibrosis bilaterally. There was no consolidation or mass. The heart size was normal. The mediastinum, vascular structures an osseous structures were intact. The examiner's diagnosis was chronic obstructive pulmonary disease, nonservice-connected; asthma; chronic tobacco use. The examiner concluded that the veteran's asthma pre-existed service. The examiner also added that the veteran's asthma could have possibly been aggravated by Agent Orange exposure, if it were proven that he was exposed to Agent Orange. II. Analysis At the outset, the Board notes that the first responsibility of a claimant is to present a well-grounded claim; one that is plausible and capable of substantiation. See 38 U.S.C.A. § 5107(a) (West 1991). In the present case, the service medical records reflect a diagnosis of asthma. The Board finds that this evidence is sufficient to render the claim plausible, and thus, well-grounded. See Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107 (West 1991). Pertinent laws and regulations provide that service connection may be granted for disability resulting from disease or injury incurred in the line of duty or for aggravation of a pre-existing injury suffered, or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). Service connection may also 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) (1999). The law further provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 1991). In determining whether there is clear and unmistakable evidence that the injury or disease existed prior to service, consideration is given to the history recorded at the induction examination, together with all other material evidence. Crowe v. Brown, 7 Vet. App. 238, 245-246 (1994). In this case, notwithstanding the veteran's report of his father's medical history, his examination at induction was negative for any complaints, findings, or diagnosis of asthma. As such, the veteran is entitled to the presumption of soundness with respect to that condition. However, the Board finds that the record includes clear and unmistakable evidence to rebut the presumption. Notwithstanding the veteran's reported history at induction, the September 1969 Medical Board report clearly establishes that the veteran then admitted lifelong problems with asthma requiring almost constant use of bronchodilators. Based upon this history, the Medical Board concluded that the veteran's disability pre-existed service. Likewise, in February 1999, a February 1999 VA examiner opined that the veteran's asthma pre-existed service. While, as noted above, a VA examiner indicated that the veteran's treatment for asthma dated back to the 1960's, this clearly was a mere reiteration of the veteran's reported history, rather than a contrary opinion as to the date of onset of the condition. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) ("[e]vidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute 'competent medical evidence"); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Elkins v. Brown, 5 Vet. App. 474, 478 (1993). Hence, notwithstanding the fact that the first diagnosis of asthma of record was in service, on the basis of the foregoing, the Board finds that, as regards the veteran's asthma, the presumption of soundness upon entry into active duty is rebutted. See Doran v. Brown, 6 Vet. App. 283 (1994) (The veteran's statements of pre-existence, in addition to other evidence establishing that fact, may be enough to rebut the presumption of soundness based on clear and unmistakable evidence.) The Board notes a veteran's disability is shown to have pre- existed service, a determination must then be made as to whether the veteran's preexisting asthma underwent an increase in severity during service. 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 was due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(a) (1999). The underlying disorder, as opposed to the symptoms, must be shown to have worsened in order to find aggravation. See Jensen v. Brown, 4 Vet.App. 304, 306-307 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. 3.306(b) (1999). In this case, however, there is no medical evidence establishing that the veteran's disability, in fact, underwent an increase in severity during service. While as noted above, service medical records dated in 1968 and 1969 show treatment for symptoms of wheezing, coughing and sputum production, such symptoms were then attributed to other causes, such as bronchial infections. Even assuming, arguendo, that such symptoms can be attributed to subsequently identified asthma, there is no indication of record that such symptoms were reflective of more than flare- ups of a disability.. However, as noted above, the Court has emphasized that flare-ups of a disability do not consitute a permanent increase in severity. See Hunt, 1 Vet. App. at 295. It is also significant that the Medical Board report does not support a conclusion that a permanent increase in the severity of the veteran's asthma occurred during service. On the contrary, at the time of the September 1969 evaluation, it was noted that the veteran continued to be asymptomatic. In the Hunt case, cited to above, the Court held that the presumption of aggravation did not apply to a veteran with a preexisting disorder when the medical evidence showed only temporary defects during military service, and that the veteran was asymptomatic at separation. Id.; see also Sondel v. West, No. 98-719 (U. S. Vet. App. Nov. 18, 1999). Moreover, while the Medical Board only offered the conclusion that the disability was not aggravated by service, a comparison of the veteran's own description of his pre- service condition (necessitating nearly constant use of bronchodialators) as reflected in the Medical Board report, and his in-service condition (some flare-ups, but reasonably well controlled with medications, and asymptomatic at separation) would appear to militate against a finding that the disability permanently increased in severity during service. Furthermore, while the February 1999 VA examiner suggested a possible worsening of the veteran's asthma in service, only if definitive exposure to Agent Orange could be established, the Board finds that an opinion expressing the mere possibility of a worsening condition based on the definite occurrence of an event that cannot be so proven (i.e., the veteran's exposure to Agent Orange in service, per the doctor's own statement) does not constitute persuasive evidence of a permanent increase in the severity of the veteran's asthma due to service. Undoubtedly, the veteran's July 1999 statement indicating that his exposure to Agent Orange need not be proven is a reference to regulatory provisions establishing a presumption of Agent Orange exposure where the veteran served in Vietnam and developed one of the chronic disorders listed in 3.309(e). See 38 C.F.R. §§ 3.307, 3.309 (1999); McCartt v. West, 12 Vet. App. 164 (1999). However, those provisions do not apply to aggravation of a preexisting disability due to service. Moreover, although the veteran previously filed a claim for service connection for a breathing condition due to Agent Orange exposure, that claim has previously been considered and denied, but not appealed or reopened. On the basis of the foregoing, the Board must conclude that aggravation of the veteran's pre-existing asthma by his active military service has not been established, and that the claim for service connection for asthma must be denied. The preponderance of the evidence is against the claim; hence, the benefit-of-the-doubt doctrine is inapplicable. See 38 U.S.C.A. §5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER Service connection for asthma is denied. JACQUELINE E. MONROE Member, Board of Veterans' Appeals