Citation Nr: 0000948 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 98-08 769 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for asthma. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Maureen A. Young, Associate Counsel INTRODUCTION The appellant had a period of active duty for training from March 1976 to April 1976 and a period of inactive duty from December 1975 to March 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1998 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in San Diego, California. The RO denied entitlement to service connection for asthma. In October 1995 the appellant's claim for service connection for asthma was denied on the basis that the claim was not well grounded. He was notified in a letter dated in October 1995. This decision was not appealed and became final in October 1996. In June 1997 the appellant submitted a request to reopen his claim. In August 1997 the RO received additional evidence, including partial service medical records. In its January 1998 rating decision, the RO reviewed the claim of entitlement to service connection for asthma on a de novo basis. In the January 1998 decision, the RO did not base its determination on the issue of new and material evidence. In Barnett v. Brown, 8 Vet. App. 1 (1995) The United States Court of Appeals for Veterans Claims (Court) held that the Board is obligated to address the issue of new and material evidence regardless of the RO's action in resolving the claim. Hence, the Board will proceed with a determination of whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for asthma which was denied in October 1995. FINDINGS OF FACT 1. The RO denied the claim of entitlement to service connection for asthma when it issued an unappealed rating decision in October 1995. 2. The evidence received since the October 1995 determination bears directly and substantially upon the issue at hand, and because it is neither cumulative nor redundant, and is significant, it must be considered in order to fairly decide the merits of the claim. 3. The claim of entitlement to service connection for asthma is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSIONS OF LAW 1. Evidence received since the final October 1995 determination wherein the RO denied entitlement to service connection for an asthma condition is new and material, and the claim for service connection is reopened. 38 U.S.C.A. §§ 5104, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 20.1103 (1999). 2. The claim of entitlement to service connection for asthma is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background As a preliminary matter, the Board notes that VA has been unable to obtain a portion of the appellant's service medical records, which are presumed lost. Inquiry made to the National Personnel Records Center (NPRC) in St. Louis, Missouri received a negative response. There is no indication of the existence of any other alternative service records. The appellant filed a claim for service connection for asthma in March 1995. To support his claim the RO received records indicating the appellant received public and private medical treatment and treatment from VA Medical Center (MC), from December 1991 to April 1995. The record reveals that the appellant was hospitalized, due to exacerbation of asthma, for five days in December 1991, two days in August 1992 and six days between February and March 1994. The February 1994 record shows a diagnosis of asthma exacerbation secondary to no medications available and association with pneumonia, which was probably community acquired. X-ray performed in July 1992 showed that the tracheal air shadow was of a normal caliber. It further showed that there were no prevertebral soft tissue masses present. In October 1992 the appellant was diagnosed with bronchitis with exacerbation. It was reported that his medication was burned in a fire. In November 1992 he was treated at VA Medical Center (MC). He reported that he had been having difficulty with breathing for a couple of days and had an asthma attack two weeks earlier. He further reported that he was staying at a new house (alcohol recovery) where his medication was stolen. He reported having asthma since 1975. On examination his canals were clear. He had expiratory wheezing. The diagnosis was chronic obstructive pulmonary disease (COPD), asthma. In April 1995 the appellant was seen at Tri-City Medical Center where he was diagnosed with acute exacerbation of asthma. He reported a history of asthma and increased wheezing for the past two days. He stated that he cut some grass three days earlier which made his asthma worse, and he had run out of his albuterol inhaler earlier that day. Based upon the evidence referenced above, the RO determined that the claim for service connection for asthma was not well grounded. The appellant was notified of the RO's decision by letter dated in October 1995. This decision was not appealed by the appellant. The appellant requested a reopening of his claim for service connection for asthma via an application filed in June 1997. In August 1997 the RO received additional evidence to support the appellant's claim, including a portion of his service records. The enlistment examination was not included among the records received by the RO. Other in-service medical records show examination and treatment for asthma on three occasions in March 1976. On March 25, 1976 the appellant was treated and diagnosed with asthma and acute respiratory disease. It was further revealed that his last acute attack was one year earlier. A March 27, 1976 medical record revealed that the his chest x-ray results were well within normal limits. It was noted that there was diffused inspiratory and expiratory wheezing and a history of asthma since age 8 or 9. Also noted were multiple doctor visits, the last occurring a few months prior. It was further noted that the appellant had two asthmatic attacks in two weeks, which were associated with an upper respiratory infection. He was diagnosed with asthma and treated with Epinephrine and Choledyl with eventual clearing of the wheezing. The March 29, 1976 clinical record revealed that the appellant presented himself at the Medical Clinic with the history of a recent asthma attack. It was noted that he has had well documented asthma since age eight with multiple visits to his family physician, the last which occurred a few months earlier. It was further noted that he was usually given shots and oral medicine by his family physician and did not require hospitalization. The examiner reported that the appellant feels his asthma is exacerbated during colds and exposure to dust and green plants. Examination revealed the appellant to be in no acute distress. His chest revealed scattered expiratory wheezing. The diagnosis was chronic allergic asthma exacerbated by acute respiratory disease. The examiner recommended that the appellant be separated from the military service. In April 1976 the Medical Board determined that the appellant was medically fit for further military service. It was also determined that the appellant's medical condition was not caused incident to service, that it existed prior to entry on active duty and it was not aggravated by active duty. The earliest post-service medical record for treatment for asthma is in October 1986. Medical records prior to 1986 submitted by the appellant do not reference an asthmatic condition. In October 1986 the appellant was seen on emergency at the Barstow Community Hospital with complaints of wheezing for two days; he reported a history of asthma. He was diagnosed with bronchial asthma and treated with medication. Additional medical records from the Barstow Community Hospital show treatment and diagnoses of asthma intermittently from February 1989 to October 1989. On his application for VA compensation and at his personal hearing the appellant stated that he was treated at Barstow Hospital in 1976. See Hearing Transcript (Tr.) p. 11-12. Medical Records received from Barstow Community Hospital do not contain records for treatment or diagnosis of asthma earlier than 1986. The record also reveals that the appellant was treated for asthma intermittently in 1990, 1993 and 1994 during periods of incarceration in a State of California correction facility. In September 1993 the appellant was diagnosed with acute exacerbation of asthma. It was noted that he was out of some medication. X-rays showed the heart and mediastinum to be normal. The lungs appeared clear. There was mild to moderate changes of COPD noted. The diagnosis was no active disease. In 1995 and 1996 the appellant was seen numerous times at Vista Community Clinic where he was diagnosed with asthma. Many of the visits were to obtain refills of his medications. In August 1997 he received emergency treatment for his asthmatic condition at Tri-City Medical Center. In August 1997 the appellant underwent a VA trachea and bronchi examination. On examination he was in no acute distress. He had decreased breath sounds and wheezing on both lungs. There were no rales and impairment of percussion on either side. There was no presence of cor pulmonale, no indication of clubbing or cyanosis of the extremities. There was no infectious disease present. He had dyspnea on slight exertion. The appellant stated that he has an asthmatic attack every day but he is able to perform activities of daily living between the attacks. However, he is unable to do any sports activities. The diagnosis was bronchial asthma since March 1976 during active duty. The examiner noted that after the appellant's medical discharge from active duty, he has had many visits to emergency rooms and several admissions to the hospital for acute exacerbation of his asthma. VA pulmonary function analysis revealed that the spirometry showed severe expiratory flow obstruction by the decrease in forced expiratory volume in one second (FEV1), 1.26 Liters, and by the decreased FEV1 as a fraction of forced vital capacity (FVC), 49 percent. The increased respiratory volume (RV) (6.10 Liters, 277 percent predicted) and RV/total lung capacity (TLC) ratio (66 percent) suggest marked hyperinflation. The reduction in diffusion capacity of carbon monoxide (DLCO) was also consistent with severe emphysematous lung disease. The appellant testified at his personal hearing in June 1998 that he indicated on the application at enlistment that he had asthma despite the recruiter telling him not to record it as to avoid being rejected. Hearing Transcript (Tr.) p. 9- 10. He testified that he is currently being treated for chronic asthma and he is frequently taken to the hospital emergency room for treatment. Tr. p. 1. He also testified that he was in the hospital for three months while in the service (Tr. p.3) and that he has seen a doctor three or four times since his discharge from the service. He stated that he primarily receives treatment on an emergency basis. Tr. p. 4. He further testified that he never had a problem with asthma until he joined the service. Tr. p. 4-5. He stated that he may have gone to the doctor once at age seven, and once at age fifteen for a cold. The veteran said he was never really in and out of the hospital with asthma as a child. Tr. p. 7. He stated that he had more wheezing and a cold as a child and the doctor would diagnose it as asthma. Tr. p. 7-8. He further stated that his in-service training included exercises that caused him to be drenched and soaked while in the cold. He further stated that he passed-out after one of the exercises and was rushed to the hospital. Afterwards, he did not return to his regular unit. Tr. p. 5. When asked to clarify the statement in the record with regard to receiving shots and oral medication from his family physician, the appellant testified that he was age six or seven when that occurred. Tr., p. 10-11. Criteria If no notice of disagreement is filed within the prescribed period, the action or determination shall become final and the claim will not thereafter be reopened or allowed, except as otherwise provided by regulation. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. § 20.1103 (1999). The Board does not have jurisdiction to consider a previously adjudicated claim unless new and material evidence is presented. Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). A decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all field offices of VA as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C.A. § 5104 (West 1991). A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in § 3.105 of this part. 38 C.F.R. § 3.104(a). A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if an appeal is not perfected as prescribed in Rule 302 (§ 20.302 of this part). 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 1991). The determinations of whether evidence is new and whether it is material are governed by the tests set forth in 38 C.F.R. § 3.156(a); new and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1999); Fossie v. West 12 Vet. App. 1, 4 (1998); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence is evidence which (1) was not in the record at the time of the final disallowance of the claim, and (2) is not merely cumulative of other evidence in the record. Smith v. West, 12 Vet. App. 312, 314 (1999); Evans v. Brown, 9 Vet. App. 273, 283 (1996). New evidence is considered to be material where such evidence provides a more complete picture of the circumstances surrounding the origin of the appellant's injury or disability, even where it will not eventually convince the Board to alter its decision. See Hodge, supra at 1363. Recently in Elkins v. West, 12 Vet App. 209 (1999) the United States Court of Appeals for Veterans Claims (Court) held that the recent decision of the Federal Circuit in Hodge, supra requires the replacement of the two-step Manio test with a three-step test. Winters v. West, 12 Vet. App. 203, 206 (1999); See Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Under the new Elkins test, VA must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Second, if new and material evidence has been presented, immediately upon reopening the claim, the Board must determine whether, based upon all the evidence of record in support of the claim, presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a). Third, if the claim is well grounded, the Board may then proceed to evaluate the merits of the claim but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. Winters, supra. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Duran v. Brown, 7 Vet. App. 216, 220 (1994). However, lay assertions of medical causation cannot serve as the predicate to reopen a claim under § 5108. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). Pursuant to 38 U.S.C.A. § 5107(a), a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Court has held that a well- grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has also held that although a claim need not be conclusive, the statute provides that it must be accompanied by evidence that justifies a "belief by a fair and impartial individual" that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992). The Court has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (citing Murphy, at 81). The Court has held that a well grounded claim requires competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). See Epps v. Brown, 9 Vet. App. 341, 343-44 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in the active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Active military, naval, and air service includes active duty, any period of active duty for training during which the individual concerned was disabled from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24) (West 1991); 38 C.F.R. § 3.6(a) (1999). Active duty for training, inter alia, means full-time duty in the Armed Forces performed by Reserves for training purposes. 38 U.S.C.A. § 101(22) (West 1991); 38 C.F.R. § 3.6(c) (1999). 38 U.S.C.A. § 1132 provides that every person employed in the active military, naval, or air service, in peacetime, for six months or more 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 evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. Id. 38 C.F.R. § 3.303(c) provides that there are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established, no additional or confirmatory evidence is necessary. Consequently with notation or discovery during service of such residual conditions (scars; fibrosis of the lungs; atrophies following disease of the central or peripheral nervous system; healed fractures; absent, displaced or resected parts of organs; supernumerary parts; congenital malformations or hemorrhoidal tags or tabs, etc.) with no evidence of the pertinent antecedent active disease or injury during service the conclusion must be that they preexisted service. Similarly, manifestation of lesions or symptoms of chronic disease from date of enlistment, or so close thereto that the disease could not have originated in so short a period will establish preservice existence thereof. Conditions of an infectious nature are to be considered with regard to the circumstances of the infection and if manifested in less than the respective incubation periods after reporting for duty, they will be held to have preexisted service. 38 C.F.R. § 3.303(c) (1999). A preexisting 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 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a) (1999). 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 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 the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b) (1999). The Court has held that temporary flare-ups of a pre- existing injury or disease are not sufficient to show aggravation, unless the underlying disorder, as contrasted to the symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 296-7 (1991). The Board notes that the Court held in Crowe v. Brown, 7 Vet. App. 238 (1994), that even if the appellant's disability is properly found to have preexisted service, the presumption of aggravation must also be addressed; and that a preexisting 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 pursuant to 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306(a). If a disability is not shown to be chronic during service, service connection may nevertheless be granted when there is continuity of symptomatology post service. 38 C.F.R. § 3.303(b) (1999). See Savage v. Gober 10 Vet. App. 488 (1997). Regulations also provide that service connection may be granted for a disease diagnosed after service discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993). Diseases of allergic etiology may not be disposed of routinely for compensation purposes as constitutional or developmental abnormalities. Service connection must be determined on the evidence as to existence prior to enlistment and, if so existent, a comparative study must be made of its severity at enlistment and subsequently. Increase in the degree of disability during service may not be disposed of routinely as natural progress nor as due to the inherent nature of the disease. Seasonal and other acute allergic manifestations subsiding on the absence of or removal of the allergen are generally to be regarded as acute diseases, healing without residuals. The determination as to service incurrence or aggravation must be on the whole evidentiary showing. 38 C.F.R. § 3.380 (1999). Analysis New and Material Evidence The appellant seeks to reopen his claim of service connection for asthma which the RO declined to reopen in January 1998. The Board will proceed with a determination of whether the evidence received subsequent to the denial of the appellant's initial claim in October 1995 is new and material. By regulation, VA sets forth several criteria that must be met for evidence to be new and material. See 38 C.F.R. § 3.156(a) (1999). Regarding newness, the regulation requires that the newly submitted evidence cannot have been previously submitted to agency decision-makers and that it cannot be either cumulative or redundant. Id. Echoing these requirements, the Court has defined new evidence as evidence, which (1) was not in the record at the time of the final disallowance of the claim, and (2) is not merely cumulative of other evidence in the record. Smith v. West 12 Vet. App. 312, 314 (1999) (citing Evans, supra at 283; Elkins, supra at 215-217). New evidence is considered to be material where such evidence provides a more complete picture of the circumstances surrounding the origin of the appellant's injury or disability, even where it will not eventually convince the Board to alter the prior decision. See Hodge, supra at 1363. In the instant case, beginning in August 1997, the RO received medical treatment records from a number of medical treatment facilities that administered treatment to the appellant for an asthmatic condition. Service medical records, although incomplete, were also received by the RO and showed that the appellant received in-service treatment for asthma. The evidence received was noncumulative of evidence received up to and including October 1995; and, it was relevant to and probative of the issue in dispute. Furthermore, receipt of such evidence provides a more complete picture of the circumstances surrounding the origin of the appellant's claimed asthmatic condition. Thus, the Board finds that evidence received by the RO to support reopening of the appellant's claim for service connection for asthma is new and material. Well Groundedness The second step of the three-step test in Elkins, supra, provides that if new and material evidence has been presented, immediately upon reopening the claim the Board must determine whether the claim is well grounded. Since VA has been unable to obtain a portion of the appellant's service medical records, it has a heightened duty to explain its findings and conclusions, and to consider carefully the benefit-of the-doubt rule. Pruitt v. Derwinski, 2Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The evidence of record reflects that the RO pursued service medical records pertaining to the appellant through the NPRC and received verification that such records were not on file at NPRC. The evidence also reflects, and the Board is satisfied, that the RO has attempted to locate additional pertinent evidence regarding the appellant's military service. The analysis set forth below, therefore, was undertaken pursuant to the duties and obligations set forth in Pruitt, Id. and O'Hare, Id With regard to the appellant's military status, the Board notes that active duty for training is not considered active duty unless service connection is granted for a condition incurred in or aggravated during a period of active duty for training. Consequently, the presumption of soundness under 38 U.S.C.A. § 1132 is not applicable when an individual, as in this case, has served only on active duty for training, has not established any service-connected disability and has served less than six months. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6; See Paulson v. Brown 7 Vet. App. 466, 469- 470 (1995). Since the presumption of soundness does not apply in this case, the Board will proceed with an evaluation, based on a preponderance of the evidence, to determine whether the appellant has submitted a plausible claim. The Board reiterates the three requirements for a well grounded claim: (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and, (3) medical evidence of a nexus between the claimed in-service injury or disease and a current disability. See Caluza, supra. The probative evidence indicates that the appellant's claimed asthmatic condition was present prior to entering military service. The evidence shows that the appellant suffered two asthma attacks within two weeks of enlistment of active duty for training. At the time of treatment, he reported having an asthma-attack one-year prior. He also reported a history of asthma since age 8 or 9. Medical treatment records from 1986 to 1994 intermittently note a history of asthma. The appellant testified at his personal hearing that he had asthma as a child. He also testified that he indicated on the enlistment application that he had an asthmatic condition. In an April 1976 Medical Board Proceeding the Medical Board determined that the appellant's asthmatic condition preexisted his entry on active duty for training. Based upon the foregoing, the Board finds that the evidence supports that the appellant's asthmatic condition preexisted service. The Board notes that 38 C.F.R. § 3.304(b)(2) is interpreted to mean that the Board may not rely solely on the appellant's own account of a preservice medical condition to establish the existence of a preexisting disability. However, in Doran v. Brown, 6 Vet. App. 283, 286 (1994) a portion of the appellant's service medical records, including his service entrance examination report were unavailable and based upon the record in that case, the Court allowed the appellant's admission of a preservice history of psychiatric problems during clinical evaluations to establish the existence of a disability prior to service. In the case at hand, the Board is not solely reliant upon statements proffered by the appellant of a preexisting asthmatic condition but is also relying upon findings of the in-service Medical Board that also establish that fact. In deciding an issue of in-service aggravation, after having determined the presence of a preexisting condition, the Board must first determine whether there has been any measured worsening of the disability during service and then whether such worsening constitutes an increase in disability. See Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). A preexisting 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 U.S.C.A. §§ 1137, 1153; 38 C.F.R. § 3.306(a) (1999); see also Paulson v. Brown, 7 Vet. App. 466, 468 (1995); Crowe v. Brown, 7 Vet. App. 238, 247 (1994). The Court has held that temporary or intermittent flare-ups during service of a preexisting disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown 19 F.3d 1413 (Fed. Cir. 1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). 38 C.F.R. § 3.380 provides that a comparative study must be made of the severity of the disease at enlistment and subsequently and that the determination as to service aggravation must be on the whole evidentiary showing. Id. The determination of whether a preexisting disability was aggravated by service is a question of fact. See Doran v. Brown, 6 Vet. App. 283, 286 (1994). Competent medical evidence does not show that the appellant's asthmatic condition underwent any increase in disability during service. The evidence, however, does show that the appellant experienced flare-ups of his asthma while serving on active duty for training. The record indicates that the appellant had on-going treatment for asthma prior to service. In March 1976 the appellant was seen with a history of asthma with his last attack a year earlier. He reported a history of asthma since childhood. The record showed a history of multiple doctor visits with the last visit a few months prior to entry onto active duty for training. His family physician usually treated him with shots and oral medicine. This evidence has a greater probative value than the appellant's testimony that he had no problems with asthma until joining the service as the former tends to be more credible because in most instances such statements were offered for the purpose of receiving medical treatment. Fed. R. Evid. 803(4). The appellant had two asthma attacks within two weeks of entering active duty for training. He was diagnosed with chronic allergic asthma, which had been exacerbated by an acute respiratory disease. There is no in-service medical record of further attacks prior to separation from service. The Medical Board determined that the appellant was medically fit for further military service. It was the appellant who did not desire to continue in the service. Thus, there is no competent evidence showing any permanent increase in severity of the appellant's preexisting asthmatic condition during service. As such, 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; 38 C.F.R. § 3.306(b). See also Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (the presumption of aggravation created by 38 C.F.R. § 3.306 applies only if there is an increase in severity during service). The comparative study required under 38 C.F.R. § 3.380 invokes consideration of continuity of symptomatology outlined in 38 C.F.R. § 3.303(b). Here, the severity of the appellant's asthmatic condition immediately following separation from service is not shown. The appellant reported that he was treated in 1976, immediately after service, but the records have not been made available for review. Even though the appellant alleges treatment immediately following service, he has not proffered evidence of continued symptoms related to his asthmatic condition immediately following service. The record of October 1986 is the earliest medical record in the file, which shows the appellant was treated upon complaints of wheezing and a history of asthma. Furthermore, the record is devoid of medical expertise relating any post-service symptoms to service. See Savage v. Gober, 10 Vet. App. 488 (1997). The only indication of an in-service aggravation of his claimed asthma condition is the appellant's own account. While a lay person is competent to provide evidence on the occurrence of observable symptoms during and following service, such a lay person is not competent to make a medical diagnosis or render a medical opinion which relates a medical disorder to a specific cause. Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Therefore, if the determinant issue is one of medical etiology or a medical diagnosis, competent medical evidence must be submitted to make the claim well grounded. Grottveit, supra at 92-93. The appellant's statements that his asthma was aggravated during service are not considered to be competent medical evidence for rendering such a diagnosis. After consideration of all the evidence, the Board finds that the evidence proffered by the appellant is insufficient to establish a well-grounded claim. The evidence fails to show that the appellant's asthmatic condition was aggravated in service. Consequently, the claim for service connection for asthma must be denied. Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). The Board concludes that the RO has advised the appellant of the evidence necessary to establish a well-grounded claim, and the appellant has not indicated the existence of any pertinent evidence that has not already been obtained or requested that would well-ground his claim. McKnight v. Brown, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). Since the appellant's claim is not well grounded, the third step of the three-step test in Elkins, supra is inapplicable. The Board notes that the appellant has not been prejudiced by action of the Board in applying new and material evidence requirements to a previously denied claim for service connection for asthma where the RO adjudicated the merits of the claim. The appellant had been given adequate notice of the need to present evidence and argument on the merits of his claim and adequate opportunity to appear at a hearing to present evidence and argument with respect to the merits. See Bernard v. Brown 4 Vet. App. 384, 394 (1993); See also Barnett, supra at 4. The Board further notes that although the RO denied the appellant's claim on the basis of it not being well grounded in October 1995, it did not specifically deny his claim on the basis of it not being not well-grounded in the January 1998 rating decision and subsequent statement of the case. When the Board addresses in its decision a question that has not been addressed by the RO, it must consider whether the appellant has been given adequate notice to respond and, if not, whether the appellant has been prejudiced thereby. In light of the appellant's failure to meet the initial burden of the adjudication process, the Board concludes that he has not been prejudiced by the decision herein. This is because in assuming that the claim was well grounded, the RO accorded him greater consideration than his claim in fact warranted under the circumstances. See Meyer v. Brown, 9 Vet. App. 425, 432 (1996); Bernard, supra. ORDER The veteran having submitted new and material evidence to reopen the claim of entitlement to service connection for asthma, the appeal is granted to this extent. The veteran not having submitted a well grounded claim of entitlement to service connection for asthma, the appeal is denied. RONALD R. BOSCH Member, Board of Veterans' Appeals