BVA9508196 DOCKET NO. 93-16 035 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for bronchial asthma. REPRESENTATION Appellant represented by: American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Richard T. Foss, Associate Counsel INTRODUCTION The appellant is a veteran of active military service from January 1943 to December 1945. He also had periods of duty in the Naval Reserve from January 1948 to January 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1992 rating determination by the Indianapolis, Indiana, Regional Office (RO) of the Department of Veterans' Affairs (VA). In August 1992, a hearing was held before a RO Hearing Officer in Indianapolis, a transcript of which is of record. CONTENTIONS OF APPELLANT ON APPEAL Appellant maintains that he was in good physical condition when he entered the military, and asserts that his "breathing problems" began with exposure to various chemical compounds during his period of active service. He acknowledges some respiratory problems as a child, however, he contends that as he grew older, those problems disappeared altogether; and, in any event, he argues, he was never actually diagnosed as having asthma. Appellant alleges that he has suffered continuously since service from asthma. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claim file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is unfavorable to the claim seeking service connection for bronchial asthma. FINDINGS OF FACT 1. All evidence necessary for an equitable determination of the issue on appeal has been associated with the record. 2. At appellant's induction physical examination in January 1943, his respiratory system was evaluated as normal by the examining physician. 3. During treatment in April 1944, at which time appellant was diagnosed as having asthma, appellant reported that he had had breathing problems as a child. The examining physician concluded that appellant had actually had asthma since the age of 9. 4. There is no medical record of any other complaint or finding of, treatment for, or diagnosis of, asthma during appellant's period of active service. 5. At appellant's discharge physical examination in December 1945, his respiratory system was evaluated as normal by the examining physician. Examinations for the Reserves in 1948 and 1949 showed no pertinent defects. 6. The asthma reported in service existed prior to service. 7. There was no increase in severity of the asthma during service. CONCLUSIONS OF LAW 1. Asthma clearly and unmistakably preexisted service, and the presumption of soundness is rebutted. 38 U.S.C.A. § 1111, 5107 (West 1991); 38 C.F.R. § 3.304(b) (1994). 2. Asthma was not aggravated by service. 38 U.S.C.A. §§ 1110, 1153, 5107(a) (West 1991); 38 C.F.R. §§ 3.306 (a) (b) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that it has found appellant's claim to be well-grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that he has presented a claim which is plausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). The Board is further satisfied that all relevant facts have been properly developed with respect to the claim, and that no further assistance to the appellant is required in order to comply with VA's duty to assist him in the development of his claim, as mandated by 38 U.S.C.A. § 5107(a). Appellant was given a physical examination in January 1943, at the time of entry onto active duty, and his respiratory system was evaluated as normal by the examining physician at that time. A presumption of sound medical condition at entry into the service attached at that point. However, that presumption can later be rebutted where there is clear and unmistakable evidence such as to warrant a finding that the disease or injury existed prior to service. 38 U.S.C.A. § 1111 (West 1991). The Board finds that the presumption of soundness with respect to asthma has been clearly and unmistakably rebutted in this case. In April 1944, the appellant was hospitalized for a wheezing cough and cold. He was diagnosed as having asthma at that point, and reported a clinical history of "difficulty in breathing" since the age of nine. His examining physician explicitly concluded that "[the] patient has had mild asthma since he was 9 years old." That medical determination, by a treating physician, is clear and unmistakable evidence of the pre-service existence of asthma and, therefore, sufficient to rebut the attached presumption of sound condition. The only evidence to the contrary is the veteran's assertions, also contained in his testimony, that asthma originated in service. These assertions, which were made many years after the events at issue, and in connection with a claim for benefits, are directly contradicted by the conclusions of a treating physician. In view of the contemporaneous clinical record, we find that the veteran's claim that asthma was not present prior to service lacks credibility. He has also disputed the medical characterization of his pre-service respiratory problems as asthma, but his assertion in this regard is not probative. He is not considered competent on questions of medical diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The inservice medical history is clear and unmistakable evidence demonstrating that appellant's asthma disability existed prior to service, and is dutifully recorded in the veteran's examination reports. 38 C.F.R. § 3.304(b) (1994). There is no probative evidence to the contrary. Since appellant's asthma disability pre-existed his period of active service, the only remaining question is whether that disability was aggravated during this period. According to 38 C.F.R. § 3.306 (b), clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent increase in severity in service. This include medical facts and principles which may be considered to determine whether the aggravation is due to the natural progress of the condition. 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 the manifestations of the disability prior to, during and subsequent to service. As indicated above, appellant received treatment in April 1944 for an asthma condition. He was earlier hospitalized in 1943 for acute bronchitis. He also twice suffered from catarrhal fever during active duty. But the lone diagnosis of asthma was in April 1944, for which appellant was treated for 10 days and then returned to duty. Toward the end of the hospitalization for asthma, the physician indicated that the asthma had not interfered with the veteran's work during the eighteen months he had been on active duty; that as his cold cleared up, his difficulty breathing disappeared; and that his chest was clear. He was given a discharge physical examination in December 1945, and his respiratory system was again evaluated as normal by the examining physician. Examinations in connection with Reserve training in 1948 and 1949 were negative for respiratory complaints or findings. On the basis of the record pertaining to manifestations of asthma prior to, during and subsequent to service, we are unable to conclude that the preexisting asthma was aggravated in service. That record shows a single, relatively brief episode of asthma in service. (None of the other respiratory problems in service was considered a manifestation of, or related to, asthma). The episode was characterized by the same manifestations which the veteran had experienced prior to service, namely, difficulty breathing. The episode resolved with treatment, so that he was essentially asymptomatic when he was released to duty. The medical record over the next few years is entirely negative for asthma. In Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991), the United States Court of Veterans Appeals held that temporary or intermittent flare-ups during service are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, has worsened. In this case, there is simply no probative evidence that the underlying asthmatic condition worsened in service. That is, after the single episode in service, no respiratory symptoms due to asthma are shown in service. The veteran has claimed that he was treated in numerous emergency rooms for asthma over the period from 1945 to 1960. He has also offered testimony consistent with this claim. While the actual medical records might shed some light on whether the asthma had increased in severity in service, after the hearing in 1992, the veteran was given the opportunity to submit such records, and failed to do so. The recollections themselves, of events which occurred many years previously, are not reliable. The existing evidence, then, which might shed light on his status proximate to service consists of the Reserve examination reports, which are negative for asthma, and unreliable recollections as to the frequency of asthmatic attacks after service. To summarize, we find no probative evidence subsequent to service which shows that the asthma underwent increased severity in service. If we consider the question of aggravation specifically under 38 C.F.R. § 3.306, we note that there is an evidentiary presumption of aggravation where there was increased severity in service, but this presumption can be rebutted by clear and unmistakable proof. In this case, even if we were to concede for the sake of argument that the asthmatic episode requiring hospitalization in service represented an increase in severity, the increase was clearly temporary, and the veteran was restored to asymptotic status following treatment. The subsequent medical records show that he remained asymptomatic with respect to asthma during service, and there is no probative evidence to the contrary. We find in the medical record the clear and unmistakable proof required to rebut any presumption of aggravation. The veteran has argued that exposure to various chemical compounds in service affected the course of asthma, but has produced no cognizable evidence to that effect. As a layperson, he is not considered competent on questions requiring medical expertise. Espiritu, 2 Vet. App. at 495. ORDER The appeal is denied. NANCY I. PHILLIPS Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.