BVA9508278 DOCKET NO. 93-13 485 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a chronic pulmonary disorder, variously diagnosed. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from October 1944 to March 1945. In June 1958, the Board of Veterans' Appeals (Board) denied entitlement to restoration of service connection for bronchial asthma. The Board found, among other things, that the evidence clearly and unmistakably established the existence of asthma prior to service, that no relevant active disease process was demonstrated in service to establish aggravation, and that the evidence, considered in its entirety, failed to show the preservice disorder was increased or aggravated by service. The current appeal arose from a September 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The RO determined that new and material evidence had been submitted to reopen the previously denied claim of entitlement to service connection for a chronic respiratory disorder, but found no basis to change the prior denial. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he never had bronchial asthma prior to service and was accepted in good physical health for active duty. He argues that if bronchial asthma did exist prior to service, it was part of his family medical history, and it was aggravated while he was on active duty since he had to be separated from service because of its disabling manifestations. 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 claims 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 against the claim of entitlement to service connection for a chronic pulmonary disorder, variously diagnosed. FINDINGS OF FACT 1. At the veteran’s October 1944 enlistment examination his lungs were found to be normal. 2. On numerous occasions while on active duty the veteran reported that he had had perennial respiratory infections all of his life, as well as a lifelong history of perennial wheezing and respiratory distress. 3. The veteran’s pre-existing chronic pulmonary disorder did not increase in severity during his active duty service. CONCLUSIONS OF LAW 1. Clear and unmistakable evidence has been presented rebutting the presumption that the veteran’s pulmonary system was sound at enlistment. 38 U.S.C.A. § 1111 (West 1991). 2. The veteran’s pre-existing pulmonary disorder was not aggravated during his active duty service. 38 U.S.C.A. §§ 1110, 1153 (West 1991); 38 C.F.R. § 3.306(b) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The record reveals that when the veteran was examined for induction in October 1944, his lungs were reported as normal. In February 1945, the veteran was hospitalized with complaints of a sore throat, aching bones and muscles, chills, fever, and dry cough of one day's duration. In statements recorded for clinical purposes the appellant reported that he had had perennial attacks with difficulty in the spring and fall all his life with respiratory infections. The veteran was also noted to say that he had a history of wheezing and respiratory distress, perennial in nature all his life, and that he averaged one attack per month. There was history of the same condition with his mother. During physical examination at admission the veteran reported using "Power’s asthma powder" once every two or three months. Consultation with an allergist disclosed that the veteran was in a typical asthmatic attack. At discharge the final diagnosis was chronic moderate bronchial asthma caused by Class C sensitivity to carelessweed, atopy to feathers, and by bacterial allergens. The disorder was judged to have existed prior to induction, and not to have been aggravated by service. The veteran was separated from active duty with a certificate of discharge for disability. This document noted that the veteran had chronic moderate bronchial asthma, caused by Class C sensitivity to carelessweed, atopy to feathers, and by bacterial allergens. The disorder was judged not to have been incurred or aggravated in service, and to have existed prior to service. In an application for VA benefits signed by the veteran in March 1945, the appellant reported a history of asthma all of his life which was worse while on active duty. At a June 1946 VA examination the veteran stated that symptoms of asthma were first noticed in 1936 or 1937. He had had medical treatment from his private physician. On a special chest examination the veteran reported a history of asthma all his life. There was sensitivity to rag weed, horse dust, and certain types of flowers, according to skin tests performed in service. The degree of asthma was always about the same, occasionally worse after smoking. On examination there were scattered musical rales at both bases on inspiration and expiration. There was no coughing. The diagnosis was minimal bronchial asthma. No disability was found. On file is a letter dated in March 1949 from E. Azmitia, M.D. Dr. Azmitia noted he saw the veteran that month with a chief complaint of asthma of five years duration. The veteran stated that ever since 1944 he had continuous respiratory difficulties. The diagnostic impression was chronic bronchial asthma. A June 1949 VA special chest examination concluded in a diagnosis of asthma, bronchial, chronic, moderately severe. At a September 1956 VA respiratory examination the veteran reported that he had had bronchial asthma throughout most of his life, that it had increased in severity while in service, and that it continued to be symptomatic. The examination concluded in a diagnosis of bronchial asthma, extrinsic. The veteran was privately hospitalized in January 1982 with complaints of shortness of breath of three days duration. He had stopped smoking about three days before. The relevant clinical assessments were asthma; and abnormal infiltrate on chest x-ray, exclude carcinoma. At a March 1982 VA examination the veteran reported he was a very heavy smoker, having an approximately 75 pack year history of smoking. He was then smoking approximately six to ten cigarettes per day. The impression was that the veteran had mild chronic obstructive pulmonary disease, with asthma, secondary to cigarette smoking. In a statement signed in July 1992, [redacted] identified himself as having known the veteran all his life. He stated he did not remember the veteran ever being sick or complaining about asthma prior to service. After service he had asthma and breathing problems. Mr. [redacted] stated that before the veteran went into service he did not have asthma. In a statement signed in July 1992, the veteran's brother-in law- noted that he did not recall the veteran's ever having breathing problems prior to induction into service. The veteran provided testimony at an RO hearing held in March 1992. He stated that prior to active duty he never had any lung problems, or any kind of lung condition. The veteran further noted that while his mother had a history of asthma, he never had any problems prior to be inducted. He testified that military service precipitated an asthmatic attack. He did not indicate any treatment for asthma during the four or five years subsequent to service. Analysis Service connection may be granted for a disability incurred in or aggravated by service. 38 U.S.C.A. § 1110. 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 unmistakable evidence that the disability manifested in service existed before service will rebut the presumption. 38 U.S.C.A. § 1111. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during wartime service. This includes medical facts and principles which may be considered to determine whether the increase 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 of the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). In this case, the veteran’s lungs were found to be normal at his October 1944 enlistment examination. Accordingly, his respiratory system is entitled to the presumption of soundness. The veteran’s inservice admissions of a perennial history of wheezing and respiratory distress all of his life, coupled with the appellant’s admission that he used an "asthma powder" once every two or three months, however, constitute clear and unmistakable evidence which rebuts this presumption. Accordingly, service connection may only be granted if the veteran’s pre-existing pulmonary disorder was aggravated while on active duty. In examining whether or not the veteran’s pre-existing pulmonary disorder was aggravated during his active duty service the Board notes that all of the health care providers responsible for his inservice treatment offered the opinion that the disorder was not aggravated therein. Thus, there is no competent evidence that the veteran’s pre-existing respiratory disorder increased in severity during his active duty service. Moreover, it is well to observe that when examined by VA in June 1946, the examiner specifically found that the veteran had "no disability." Thus, even assuming that the veteran’s inservice episode of respiratory problems was a flare-up over that which he experienced prior to active duty, the clinical evidence demonstrates that such a flare up was only temporary in nature. Such a flare-up is insufficient to justify a finding that the veteran’s disorder was "aggravated in service." Hunt v. Derwinski, 1 Vet.App. 292, 297 (1991). Accordingly, after reviewing all of the evidence of record, the Board finds that service connection for a chronic pulmonary disorder, variously diagnosed is not warranted. In reaching this decision the Board recognizes that the veteran’s respiratory disorder is now far more severe than it was during or before his active duty service. Significantly, however, the relevant clinical evidence as to whether the veteran’s pre- existing respiratory disorder was aggravated in service is limited the clinical findings presented in service, and immediately thereafter. The extent of the veteran’s current respiratory disability is not pertinent to the question whether or not the disorder was aggravated while on active duty. The Board also considered the veteran’s sworn testimony concerning the nature, extent, and onset of his respiratory disorder. On review of the entire record, however, the Board finds that the veteran’s inservice statements to health care providers for treatment purposes constitute far more credible evidence than testimony presented in pursuit of a claim for monetary benefits. In this regard, the Board observes that there is a strong motivation to be truthful when seeking medical treatment. Cf. Federal Rule of Evidence 803(4). The Board further assessed the veteran’s alternative argument that if he had a pre-existing respiratory disorder that such a disability was aggravated while on active duty. For the reasons and bases discussed above, however, the Board finds that the competent evidence provided by health care professionals inservice and immediately postservice outweighs an opinion presented by an individual who is untrained in the field of health care. Finally, the Board considered the veteran’s allegation that an August 1957 rating decision severing service connection for bronchial asthma was clearly and unmistakably erroneous. That rating decision, however, was subsumed by the Board’s June 1958 decision, and the doctrine of clear and unmistakable error is inapplicable to decisions of the Board of Veterans’ Appeals. Smith v. Brown, 35 F.3d 1516 (Fed. Cir. 1994). ORDER Entitlement to service connection for a chronic pulmonary disorder, variously diagnosed, is denied. DEREK R. BROWN 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.