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Service Conection


schauba

Question

I was in iraq and suffered from chest pain and shortness of breath. When i went to sick call they treated me as muscle pain i told them that i think i have asmha. I am out of the military and i have asmha but they denied my service connection because of nothing in my medical records. What else can I do?

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  • HadIt.com Elder

My 1st instinct on this post was that it was a posed question from the VA. That being so, I was still going to give the veteran's question the benefit of the doubt FIRST. He said he wanted in the Army. He admitted he had childhood asthma. Who told him he had asthma when he was a kid? Maybe it was childhood anxiety.

There's NO way he would have gotten through boot camp without experiencing his asthma, if he had it at all! Boot Camp is HARD!!

Childhood symptoms of Asthma do NOT amout to a valid diagnosis. My daughter has a prescription for an inhaler but she has not been diagnosed with asthma.

If this is some VA Poser, I'm not going to let him/her push my fear buttons. There's more than one way to skin a cat, and without an M.D.'s diagnosis of childhood asthma, I would definately file a claim, maybe for aggravation too. Who knows what his environmental exposers were in Iraq? Do you?

The entrance military EXAM is never thorough and complete: they can run recruits through faster than piss when they want to. Show me the regulation that says I can't be a grunt if I have asthma - and what if I have never taken medications for asthma, what if I just have a problem getting enough air when I'm anxious or exposed to smoke, for example, like DUH, he said he is service-connected for allergies!

If he wasn't diagnosed with Asthma at the time of enlistment, he could of told them, what: when I was a kid I had a hard time catching my breath when I would play sports? Or, I have a hard time breathing when my allergies kick up . . . Was he MEDICALLY DIAGNOSED with ASTHMA prior to enlistment - or only after discharge???

WTF, There's a few more questions you could ask the young man before you decide his claim is fraudulent!!

If we don't give him the benefit of the doubt, why would we expect the VA too???

BTW, he could still have gotten in the Army with asthma and a medical WAIVER -- if he had asthma at all!

JMHO.

Hey, you can't get a TATOO while active-duty either - - hahahaha!!

Edited by Wings (see edit history)
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ok when i was young i suffered from asthma but when i got older it got better.

Yes the diagnosis was done by two different doctors and i asked them could they tell if i had asthma when i was younger and they said no.

By the above two statements, there is NO question as to this posters intent. If my claim is waiting under this one I hope we meet.

Time

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  • HadIt.com Elder

Adora

Good response. Not that I expect it will have any effect.

Closed minds are unwilling to adopt a different point of view, and sanctimonius attitudes are usually indicative of a closed mind.

My Motto: The day you stop learning, is the day you start dying.

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Schauba

Go ahead and appeal your rating. History is full of soldiers who LIED on there application to enter the service and they served with distinction. I am sure many of us know individuals who were underage or hid arrest records and served with honor.

Your long service record should override the denials. Appeal based on medical evidence and you should win.

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  • HadIt.com Elder
Schauba

Go ahead and appeal your rating. History is full of soldiers who LIED on there application to enter the service and they served with distinction. I am sure many of us know individuals who were underage or hid arrest records and served with honor.

Your long service record should override the denials. Appeal based on medical evidence and you should win.

I'd REALLY like to know if he was MEDICALLY (meaning an M.D.) diagnosed with Asthma PRIOR to enlistment - or - MEDICALLY diagnosed with Asthma AFTER military discharge. Answer this question for me please???

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Wings

Your point about a medically confirmed diagnosis before or after service seems very key here.

Josh

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  • HadIt.com Elder

Veterans Benefits Administration

M21-1, Part VI

Change 119

September 28, 2004

Paragraph 7.05a is revised to state that when no preexisting condition is noted at entrance into service, the burden then falls on the VA to rebut the presumption of soundness by clear and unmistakable evidence that shows that the disease or injury existed prior to service and that it was not aggravated by service.

7.05 AGGRAVATION OF PRESERVICE DISABILITY

A preexisting injury or disease may be considered to have been aggravated by active military 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 condition (38 CFR 3.306).

Additionally, in Splane v. West, 2216 F. 3d 1058(2000), the United States Court of Appeals for the Federal Circuit held that 38 U.S.C. 1112(a) establishes a presumption of aggravation for chronic diseases that existed prior to service, but first became manifest to a degree of disability of 10 percent or more within the presumptive period after service. Such presumption may be rebutted by affirmative evidence to the contrary, or evidence to establish that such disability is due to an intercurrent disease or injury suffered after separation from service (38 CFR 3.307). Always address the issue of aggravation when service connection for a preservice disability is claimed. If service connection by aggravation is not found, the reasons and bases section of the rating should support the decision with relevant findings from the medical record before, during, and after service, demonstrating that the condition which pre-existed service has not increased in its severity.

a. Consider a veteran to have been in sound condition when examined, accepted and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service. When no preexisting condition is noted at entrance into service, the burden then falls on the VA to rebut the presumption of soundness by clear and unmistakable evidence that shows the disease or injury existed prior to service and that it was not aggravated by service. (38 CFR 3.304(b))

b. Aggravation should not be conceded merely because a veteran's condition was in remission at the time of entry on active duty. The baseline for determining whether there is aggravation of a preexisting disability is in all of a veteran's medical records for that condition, not just those covering the period of enlistment and entry on active duty. Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened.

c. 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 CFR 3.306(b)(1))

7.06 CLAIMS FOR SECONDARY SERVICE CONNECTION BY AGGRAVATION

a. Under the provisions of 38 CFR 3.310(a), disabilities which are proximately due to or the result of a service-connected condition will be service connected. An increase in nonservice-connected disability caused by aggravation from a service-connected disability will also be service connected under 38 CFR 3.310(a). (Allen v. Brown, 7 Vet. App. 439 (1995).)

b. In order to adjudicate a claim for secondary service connection for an incremental change in an otherwise nonservice-connected disability, first establish the baseline level of nonservice-connected disability and the level of additional disability which is considered proximately due to the service-connected disability. Request a medical examination, including review of the claims folder, for this purpose. Identify for the examiner the evidence of particular relevance in the claims file. Request that the examiner separately address each of the following medical issues. A medical report that fails to address these issues will not be considered sufficient for rating this type of claim:

(1) The baseline manifestations which are due to the effects of nonservice-connected disease or injury;

(2) The increased manifestations which, in the examiner's opinion, are proximately due to service-connected disability based on medical considerations;

(3) The medical considerations supporting an opinion that increased manifestations of a nonservice-connected disease or injury are proximately due to service-connected disability.

c. An examination which fails to identify baseline findings, or the increment of increased disability due to service-connected causes, would not be adequate for rating purposes.

d. When all potentially relevant records have been obtained, or it is determined that no further evidence can be obtained, order an examination. The examiner must have all available evidence for review when providing an opinion on the issues of aggravation and the degree of increased disability.

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  • HadIt.com Elder
Wings

Your point about a medically confirmed diagnosis before or after service seems very key here.

Josh

THANK YOU JOSH! I think so too!!

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  • HadIt.com Elder

http://usmilitary.about.com/od/joiningthem...tmedstandar.htm

Military Entrace Processing Station (MEPS) Regulation 40-1, paragraph 5-1b(1) directs the use of Army Regulation 40-501, Chapter 2 for medical qualifications for all branches of the Armed Forces (including the Coast Guard). The information in Army Regulation 40-501, is derived directly from Department of Defense (DOD) Directive 6130.3, Physical Standards for Appointment, Enlistment, and Induction, and DOD Instruction 6130.4, Criteria and Procedure Requirements for Physical Standards for Appointment, Enlistment, or Induction in the Armed Forces.

Military Medical Standards for Enlistment & Commission:

Lungs, chest wall, pleura, and mediastinum

The disqualifying medical conditions are listed below. The International Classification of Disease (ICD) codes are listed in parentheses following each standard. The causes for rejection for appointment, enlistment, and induction are:

a. Abnormal elevation of the diaphragm (793.2), either side.

b. Abscess of the lung (513).

c. Acute infectious processes of the lung (518), until cured.

d. Asthma (493) including reactive airway disease, exercise induced bronchospasm or asthmatic bronchitis, reliably diagnosed at any age. [meaning a medical diagnosis by a medical doctor !!]

Reliable diagnostic criteria should consist of any of the following elements:

(1) Substantiated history of cough, wheeze, and/or dyspnea that persists or recurs over a prolonged period of time, generally more than 6 months.

(2) If the diagnosis of asthma is in doubt, a test for reversible airflow obstruction (greater than a 15 percent increase in forced expiratory volume in 1 second (FEVI) following administration of an inhaled bronchodilator) or airway hyperactivity (exaggerated decrease in airflow induced by standard bronchoprovocation challenge such as methacholine inhalation or a demonstration of exercise-induced bronchospasm) must be performed.

*Guide Note: Up until just a few years ago, receiving a medical waiver for asthma was virtually impossible. That's still the case, if the applicant *currently* has asthma, or if they have a history of asthma that was reliably diagnosed, after their 13th birthday. Under new MEPS policy, dated 4 June 2004, asthma is a disqualifier, only if it was present after the 13th birthday. Applicants with a history of asthma will be required to sign an official statement, certifying that there have been no attacks (including exercise induced asthma) since the age of 13.

The Department of Defense has softened their medical qualification standards for cases of childhood asthma. Previously, any history of asthma was disqualifying, regardless of age. While medical waivers were sometimes possible, waiver approval usually required scheduling and passing a pulmonary function test. Under the new policy, Asthma is only disqualifying if it occurs after the applicant’s 13th birthday.

Medical record screening may still be required, depending on the applicant’s medical history. However, in many cases, a signed statement, attached to the medical pre-screening form, stating that the applicant did not have any type of asthma (including exercise induced, or allergic asthma) or treatment for asthma after their 13th birthday will be sufficient.

Applicants who’ve experienced asthma or reactive airway disease after age 13 will require all medical documentation. Waivers may still be considered, depending on the applicant’s medical history and – possibly results from a pulmonary function test.

**FALSE STATEMENTS: There is absolutely nothing wrong with a recruiter giving you instructions on how to answer questions at MEPs (Military Entrance Processing) - - as long as he/she is not encouraging you to be dishonest. MEPs can sometimes be very fussy when it comes to determining qualifications. If, for example, you say to your recruiter "I might have had asthma as a kid, but no doctor ever diagnosed it as asthma," then the recruiter is perfectly correct to instruct you that the correct answer to the question "Have you ever been diagnosed with asthma?" is "no." One should read the questions carefully, and answer them truthfully, but it's never a good idea to offer more information than what is actually asked. http://usmilitary.about.com/cs/joiningup/a...tatements_3.htm

Edited by Wings (see edit history)
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I'd REALLY like to know if he was MEDICALLY (meaning an M.D.) diagnosed with Asthma PRIOR to enlistment - or - MEDICALLY diagnosed with Asthma AFTER military discharge. Answer this question for me please???

I was MEDICALLY diagnosed with Asthma AFTER military discharge.

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  • HadIt.com Elder

Here's a case that might interest you . . . Start searching the BVA and COAVC for cases similar to yours. ~Wings

See Crowe v. Brown, 7 Vet.App. 238, 245 (1994) (presumption of sound

condition attached because note at induction referring to reported

existence of asthma at age four with no subsequent recurrence found

not to be a condition "noted" as defined by 38 C.F.R. 3. 304(b)); see

also Harris v. West, 11 Vet.App. 456, 461 (1998) (presumption of

soundness attached where preinduction examination reported defective

vision, but did not note retinitis pigmentosa), aff'd, 203 F.3d 1347

(Fed. Cir. 2000).

UNITED STATES COURT OF VETERANS APPEALS

No. 93-550

Michael D. Crowe, Appellant,

v.

Jesse Brown,

Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans' Appeals

(Decided December 20, 1994 )

Christopher H. Cox was on the brief for the appellant.

Mary Lou Keener, General Counsel; Norman G. Cooper, Assistant General

Counsel; Pamela L. Wood, Deputy Assistant General Counsel; and John

D. McNamee were on the brief for the appellee.

Before NEBEKER, Chief Judge, and IVERS and STEINBERG, Judges.

STEINBERG, Judge: The appellant, veteran Michael D. Crowe, appeals a

March 4, 1993, Board of Veterans' Appeals (BVA or Board) decision

denying entitlement to service connection for asthma on the ground

that it "clearly and unmistakabl[y] preexisted service and was not

aggravated thereby". Record (R.) at 7. For the reasons that follow,

the Court will vacate the BVA decision and remand the matter to the

Board for further development and readjudication, and will dismiss

the appeal to the extent that, pursuant to 38 C.F.R. 3.105(a) (1993),

it raises claims of clear and unmistakable error (CUE).

I. Background

The veteran served on active duty with the Navy from May 1958 to

February 1961 and from November 1962 to June 1970. R. at 6, 17, 28,

34, 51, 101. The May 1958 medical history report from his first

induction examination showed a checkmark for asthma and also

indicated that his brother had had "asthma, hay fever, [or] hives".

R. at 28. The

physician's notes stated: "Asthma age 4 [with] all recurrences since

denied." R. at 29. The examiner reported that no abnormalities of the

lungs or chest were noted at the veteran's induction examination. R.

at 30. A June 1958 service medical record (SMR) stated shortly after

induction: "Defects noted: Asthma 1945 -- [not considered disabling]

age 5 (none since)". R. at 36. A January 1959 SMR indicated that an

x- ray of the chest was "essentially negative". R. at 32.

A March 1960 SMR noted that the veteran was treated for asthma,

"perennial, allergen unknown", for two days in a hospital; his chief

complaints were "[p]ain in chest; difficult breathing; wheezing and

coughing; and intermittent periods of extreme weakness over period of

last four days." R. at 38. He was complaining of "substernal pain of

mild to moderate intensity, dyspnea, and inability to take a deep

breath", and appeared "very pale, sweating, and in moderate

distress". Ibid. He related that he had a "history of several such

'attacks', which have occurred intermittently over the past year or

so, and having a duration of four to five days, subsiding and

returning again in two to three months", and that the "'attacks' are

becoming more frequent in occurrence of late." Ibid. He also related

that during these episodes he had experienced a cough and

occasionally expectorated a dark brown phlegm. He related that he

"had been running up and down ladders and around the engine room".

Ibid. The entry noted that "[a]pparently these episodes are

aggravated by his work in the engine[]room, because the episodes are

less severe while he is out in the fresh air." Ibid. The veteran

related that "his mother told him that, as a child, during his first

four years while the family lived in the San Francisco Bay region, he

suffered from 'asthma', but that it cleared up when the family moved

to Minnesota." Ibid. The veteran was treated with two shots of

penicillin and within 24 hours felt "nearly normal" and was

asymptomatic. Ibid. He was to be assigned as compartment cleaner,

"away from engineroom heat at least until consultation with a Medical

Officer can be arranged and results evaluated". Ibid. The record is

silent as to whether such reassignment occurred.

An SMR later in March 1960 showed a diagnosis of "allergic asthma[,]

[p]resently in remission" and stated that after evaluation, the

veteran was to return to full duty. R. at 39. The examining physician

noted that the veteran had a "[history] in childhood of wheezing

[dyspneic] episodes". Ibid. A February 1961 examination report for

discharge from his first period of service did not disclose any

problems relating to asthma, and indicated that the veteran

was qualified for release. R. at 43. A February 1961 x-ray of the

veteran's chest was "negative". R. at 46.

An October 1962 examination for Navy reenlistment included a

checkmark indicating that the veteran had had asthma, but another

checkmark indicated that he did not have any blood relatives with

"asthma, hay fever, [or] hives". R. at 47. A physician's note stated:

"Asthma in early childhood. No recurrence." R. at 48, 50. A clinical

evaluation showed no abnormalities as to the lungs and chest. R. at

49. An April 1963 SMR showed treatment of the veteran for coughing

spells and vomiting blood and reported that he had coughing spells

"whenever doing anything active" and pain in the upper abdomen when

he coughed. R. at 52. The diagnosis was bronchitis. Ibid. A March

1964 examination did not mention asthma, and indicated that the

veteran was qualified to perform his duties on active duty. R. at 55.

In June 1965, he was twice treated for "asthmatic condition". R. at

53. The SMR stated: "[History] of asthma. Attacks brought on [ ] by

heavy exercise or work. Preceded by coughing." Ibid. An August 1965

SMR indicated that the veteran "continue[d] to have 'asthmatic

attacks,' usually at [night], and often brought on by 'getting too

hot.'" R. at 57. It further reported that he occasionally experienced

wheezing, "but dyspnea is usually nightly, preceded by coughing".

Ibid. The entry noted that his chest was then clear and that

medication was prescribed. In September, the veteran returned for

more medication for his asthma attacks. Ibid.

In March 1968, a consultation was requested because he had "had

asthma attacks since 1965 which ha[d] progressed" and were "becoming

more severe and at closer intervals". R. at 63. A consultation report

related that the veteran had noted an increase in the number of

episodes and a history of asthma since age five. Ibid. His chest was

found to be clear with cough. A chest x-ray report showed a

"prominent l[eft] hilar shadow ". R. at 63 (hilar -- of, relating to,

affecting, or located near a hilum; hilum -- the depression in the

medial surface of a lung that forms the opening through which the

bronchus, blood vessels, and nerves pass, Webster's Medical Desk

Dictionary 296 (1986) [ hereinafter Webster's]). More x-rays were

requested, but the record is silent as to whether they were ever

taken. Ibid. The impression was upper respiratory infection. Ibid.

A consultation was requested again the next day. At that time, the

veteran indicated that he wanted a transfer to a dry climate and that

he needed a medical approval. R. at 64. The consultation report

prepared by Dr. M. Fox, a medical corps physician, indicated that the

veteran had related "a [history] of bronchial asthma dating back to

[five] years of

age which he states became more pronounced in his last two years of

high school." Ibid. He relates that "recent episodes are . . .

precipitated by working in the engine room which, he states renders

him unsuitable for his present rate [position]." Ibid. The diagnosis

was bronchial asthma. Ibid. Dr. Fox prescribed medication. R. at 65.

A January 1969 SMR indicated that the veteran's health record was "

reviewed carefully with regard to history of asthma since age [five],

and recurrent evaluations by corpsmen and physicians 1963 to 1968 in

which a history of [shortness of breath] while working in the engine

room is the chief complaint." R. at 68. The report stated that the

veteran had experienced no wheezing or shortness of breath at his

present duty station, and that there is "no reason why [he] should be

prevented from reenlistment on medical reasons". A physical

examination showed full expansion of chest, no wheezing, and attested

to his ability to blow out a match with "mouth wide open at 10

inches". Ibid. The diagnosis was "no evidence of asthma or chronic

obstructive lung disease". Ibid. An April 1970 discharge examination

did not mention asthma. The veteran was found to be physically

qualified for discharge. R. at 71-4.

In December 1970, the veteran filed a claim with a Veterans'

Administration (now Department of Veterans Affairs) (VA) regional

office ( RO) seeking service connection for asthma and stating that

in 1959 it was "aggravated by the service -- not bothered before

engine room work in Navy ". R. at 19-20. A March 1971 VA examination

included a special pulmonary examination by Dr. F. Ruzicka, M.D. R.

at 84-8. The examination report stated: "No evidence of pulmonary

disease can be detected at the present time." R. at 88. The report

identified the veteran's complaints as "a mild slightly productive

cough, less than 1 tbsp. of whitish sputum . . . off and on bloody[,]

. . . wheezing off and on, and some shortness of breath just on

extreme exertion." Ibid. Physical examination was negative; chest

x-ray was "essentially negative". The veteran reportedly stated that

he had experienced "sinus trouble all his life and [an]

asthmatic-like condition in his childhood but had never experienced

acute attacks of bronchial asthma, just wheezing off and on, no

allergies are known". Ibid. A March 1971 chest x-ray revealed normal

heart and lungs with a "congenital anomaly off one of the right

ribs". R. at 90.

An April 1971 VARO decision denied service connection for asthma, by

aggravation, because asthma was "[n]ot found on last examination

3-18-71." R. at 94-5. In April 1972, the veteran attempted to reopen

his claim. He submitted a private medical report from Dr. Ross

Wellin, an allergist, to whom the veteran had been referred by Dr.

Harold Rand, a private physician . Dr. Rand had noted that the

veteran had "a history of onset of bronchial asthma at [the] age of

[two years] and a recurrence of it in 1959". R. at 109. Dr. Wellin's

report indicated that the veteran had been examined on March 6, 1972,

and that clinical history revealed "[w] heezing and shortness of

breath of twelve years duration, perennial in nature, and usually

improved during the summer," and loss of sleep because of asthma. R.

at 107, 109. The veteran reportedly believed he "had some bronchial

asthma at the age of five," experienced wheezing when "in contact

with paints," and had lost 16 pounds during the past year. Ibid.

Physical findings showed "lightly swollen nasal membranes, with no

obstruction," and negative findings for the heart and lungs. Ibid.

The diagnosis was "bronchial asthma, mixed type," and the recommended

treatment was medication. The report indicated that the veteran's

chest was clear on a subsequent visit, and that he "was remarkably

improved on the medication and was sleeping well". Ibid.

An April 1972 RO decision denied the veteran's claim to reopen his

prior claim for service connection for asthma, by aggravation,

because his "presently diagnosed bronchial asthma . . . existed prior

to enlistment". R. at 111, 113. On appeal to the Board, the veteran's

authorized representative submitted an October 9, 1972, statement

from Dr. Weller, asserting that a grant of service connection for

asthma was warranted. R. at 123-25. Dr. Weller's statement reported

that since March 1972 "a study of [the veteran's] chart showed that

in May 1972 he had required additional epinephrine for his severe

asthma attacks [that] occurred particularly after physical exertion

". R. at 125. It also noted that he had "improved in the summer and

fall of 1972"; that it appeared "that his hyposensitization and

symptomatic drugs are aiding him considerably"; and that, "ince

his disease has a twelve year history, it seems evident that further

treatment is indicated, at least until [he] has had a twelve-month

period of being symptom-free." R. at 125. In October 1972, an RO

decision on appeal found "no evidence sufficiently new and material

to warrant a rating change". R. at 122. The Board's December 1972

decision denied the veteran's claim to reopen for service connection

for asthma. R. at 142-43.

In June 1991, the veteran sought again to reopen his claim for

service-connected asthma. R. at 149. He submitted a May 25, 1991,

letter from Dr. Douglas J. Coy, a private physician from Grand Rapids

Medical Associates, which stated that the veteran's asthma symptoms

had increased "over the past ten years with frequent episodes of

flare-ups necessitating a full-scale treatment regime including

steroids, antibiotics, inhalers, etc." R. at 150. At times, the

report stated, the veteran had experienced "mild obstructive

pulmonary disease on pulmonary function and generally speaking gets

along fairly well". Ibid. The letter referred to " the persistence

and increased frequency as well as severity of asthma over this

period of time". Ibid.

The veteran also submitted medical records from Itasca Medical Center

( IMC), a private facility in Grand Rapids, Minnesota, of treatment

for asthmatic conditions in June 1979, December 1984, February and

May 1989, and November and December 1990. R. at 153, 155, 157, 158,

159, 161. Many of these hospital visits apparently resulted from his

running out of asthma medication. A 1991 summary memorandum from his

employer, Blandin Paper, indicated that he was absent from work

approximately 78 days from May 1977 to February 1991 due to asthma

and breathing problems. R. at 162. The IMC records further indicated

that from January 30 to February 2, 1991, the veteran had been

admitted for "recurrent intrinsic asthma," secondary to "diabetes

mellitus, Type II". R. at 151. He was treated with nebulizers, oxygen

therapy, antibiotics, and Prednisone, made a " rapid response", was

maintained on his medication, was discharged, and was to be "followed

on an outpatient basis". Ibid.

An August 1991 RO decision denied reopening of the veteran's claim

for service connection for asthma, concluding that "[n]o new and

material evidence has been presented which would permit reopening of

the claim to grant service connection." R. at 164. In September 1991,

he filed a Notice of Disagreement (NOD). R. at 168-69. In February

1992, he submitted an October 1991 notarized statement from his

mother and copies of childhood medical records in support of his

claim. R. at 178-82. His mother's statement asserted that she

recalled that the veteran had "never had any history of [a]sthma as a

child, not until after he enlisted in the Navy". R. at 179. She

further stated that it was "his younger brother, Richard James Crowe,

who was bothered with [a]sthma at a very early age". Ibid.

A report from a private physicians' practice, Jolin, Jolin and

McKenna (JJ&M), included notes of treatment of the veteran from June

15, 1940 to March 7, 1962. R. at 181-82. These records did not

mention asthma; they did note that in August 1949 (when the veteran

was six years old) he had experienced "[l]arge swollen glands in

neck"; that at nine years old he had experienced a "dry hacking cough

. . . at [night]" and had "throat difficulty" and a "clear chest";

and that in May 1955 (when he was 14 years old) he had experienced a

cough that lasted two weeks. Ibid. An April 1992 RO decision on

appeal reviewed the additional records and statement, and confirmed

the prior RO denial. R. at 184.

In May 1992, the veteran filed a VA Form 1-9, Appeal to the BVA (1-9

Appeal), asserting that "there is no basis of history of asthma as a

child and that asthma had its onset and diagnosis during my active

service"; that in August 1949 and May 1955 he had been seen because

of a cough but his chest had been clear and there had been no

diagnosis, and that he disagreed with a statement by Dr. Rand in a VA

Statement of the Case that the disease had its onset when he was two

years old. R. at 195. The veteran further stated that when he had

enlisted in the Navy, his entrance physical exam had been "clear". He

stated that he had first been diagnosed with asthma while on active

duty. R. at 196.

In the March 4, 1993, decision here on appeal, the Board found that

the evidence received, after the Board's December 1972 denial, was

new and material, and reopened the veteran's claim, but then denied

it on the merits. R. at 5-13. After reviewing the evidence, the Board

determined that asthma "clearly and unmistakabl[y] preexisted

service and was not aggravated thereby". R. at 7. The Board

identified the following evidence as having been submitted after the

Board's 1972 decision: (1) private medical records from 1979 to 1991;

(2) private medical records from 1940 to 1962; and (3) a statement

from the veteran's mother. R. at 8. The Board found that the private

medical records from 1940 to 1962 "do not specifically show the

presence of asthma," and that they constituted new and material

evidence. Ibid. The Board then found on the merits that "it is clear

that the veteran had asthma prior to

service, during service and subsequent to service", and rejected the

current statements of the veteran and his mother (that he did not

have asthma prior to service) as contradicted by the veteran's

statements during service. The Board considered his in-service

statements more reliable because they were made in connection with

treatment. R. at 11. The Board also found that the preexisting asthma

was not aggravated by service; that his asthma had "flared up"

before, during, and after service; and that during service the

veteran's condition had not required any period when he was limited

in his duty assignments. R. at 12.

II. Analysis

A. New and Material Evidence

Pursuant to 38 U.S.C. 5108, the Secretary must reopen a previously

and finally disallowed claim when "new and material evidence" is

presented or secured with respect to that claim. See 38 U.S.C. ù

7104(b). On claims to reopen a previously and finally disallowed

claim, the BVA must conduct a "two-step analysis" under section 5108.

Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must

determine whether the evidence presented or secured since the prior

final disallowance of the claim is " new and material", when viewed

in the context of all the evidence. See Colvin v. Derwinski, 1

Vet.App. 171, 174 (1991); Manio, 1 Vet.App. at 145. If the evidence

is new and material, the Board must then review it "in the context

of" the old evidence to determine whether the prior disposition of

the claim should be altered. Jones (McArthur) v. Derwinski, 1

Vet.App. 210, 215 (1991). The Court has synthesized the applicable

law as follows:

"New" evidence is that which is not merely cumulative of other

evidence of record. "Material" evidence is that which is relevant to

and probative of the issue at hand and which, as this Court stated in

Colvin, supra . . . must be of sufficient weight or significance (

assuming its credibility) that there is a reasonable possibility that

the new evidence, when viewed in the context of all the evidence,

both new and old, would change the outcome.

Cox v. Brown, 5 Vet.App. 95, 98 (1993); see also Justus v. Principi,

3 Vet. App. 510, 513 (1992) (in determining whether evidence is new

and material, " the credibility of the evidence is to be presumed").

The determination as to whether evidence is "new and material" is

subject to de novo review in this Court under 38 U.S.C. 7261(a)(1).

See Masors v. Derwinski, 2 Vet. App. 181, 185 (1992); Jones, 1

Vet.App. at 213; Colvin, 1 Vet. App. at 174.

The Board found that the evidence was new and material and reopened

the claim, but denied service connection for asthma on the merits.

The Court holds, as a matter of law, that the veteran did submit new

and material evidence. Both the JJ&M records and the notarized

statement by the veteran's mother, which tend to show that he did not

have asthma prior to service, are relevant to and probative of the

issue of whether the veteran had asthma preexisting service and, when

viewed in the context of all the evidence, they create a reasonable

possibility of changing the outcome of the prior BVA decision. See

Cox, Jones, and Colvin all supra. The Board was thus required in this

case, as it did, to reopen the claim and to review the new evidence

in the context of the old to determine whether the prior disposition

should be altered. See Jones, supra. We thus proceed to review the

Board's merits decision.

B. Reasons or Bases

The Board is required to provide a written statement of the reasons

or bases for its findings and conclusions on all material issues of

fact and law presented on the record. See 38 U.S.C. 7104(d)(1). The

statement must be adequate to enable a claimant to understand the

precise basis for the Board's decision, as well as to facilitate

review in this Court. See Simon v. Derwinski, 2 Vet.App. 621, 622

(1992); Masors, 2 Vet. App. at 188; Gilbert v. Derwinski, 1 Vet.App.

49, 57 (1990). To comply with this requirement, the Board must

analyze the credibility and probative value of the evidence, account

for the evidence which it finds to be persuasive or unpersuasive, and

provide the reasons for its rejection of all material evidence

favorable to the veteran. See Gabrielson v. Brown, 7 Vet.App. 36, 39

(1994); Abernathy v. Principi, 3 Vet.App. 461, 465 (1992 ); Simon,

supra; Peyton v. Derwinski, 1 Vet.App. 282, 285 (1991); Hatlestad v.

Derwinski, 1 Vet.App. 164, 169-70 (1991) (Hatlestad I); Ohland v.

Derwinski, 1 Vet.App. 147, 149 (1991); Gilbert, supra.

The Board must support its medical conclusions on the basis of

independent medical evidence in the record or through adequate

quotation from recognized treatises; it may not rely on its own

unsubstantiated medical judgment. See Thurber v. Brown, 5 Vet. App.

119, 122 (1993); Hatlestad v. Derwinski, 3 Vet.App. 213, 217 (1992)

(Hatlestad II); Colvin, 1 Vet.App. at 175. "If the medical evidence

of record is insufficient, or, in the opinion of the BVA, of doubtful

weight or credibility, the BVA is always free to supplement the

record by seeking an advisory opinion [or] ordering a medical

examination". Colvin, supra; see Hatlestad II, supra; see also 38

U.S.C. 7109, 38 C.F.R. 20.901(a), (d) (1993).

Pursuant to 38 U.S.C. 5107(a), once a claimant has submitted a well-

grounded claim, the Board is required to assist that claimant in

developing the facts pertinent to the claim. See 38 C.F.R. 3.159

(1993); Littke v. Derwinski, 1 Vet.App. 90, 91-92 (1990). This duty

to assist may include "the conduct of a thorough and contemporaneous

medical examination, one which takes into account the records of

prior medical treatment, so that the evaluation of the claimed

disability will be a fully informed one ." Green (Victor) v.

Derwinski, 1 Vet.App. 121, 124 (1991); see Wilson ( Lawrence) v.

Derwinski, 2 Vet.App. 16, 21 (1991); Parker v. Derwinski, 1 Vet.App.

522, 526 (1991); Moore (Howard) v. Derwinski, 1 Vet.App. 401, 405 (

1991); EF v. Derwinski, 1 Vet.App. 324, 326 (1991). See also

Schafrath v. Derwinski, 1 Vet.App. 589, 595 (1991); 38 C.F.R. ù 4.2

(1993) ("if the [ examination] report does not contain sufficient

detail, it is incumbent on the rating board to return the report as

inadequate for evaluation purposes").

The appellant asserts that the Board erred by failing to consider and

discuss adequately the statutory and regulatory provisions pertaining

to the presumptions of soundness and aggravation. Because the veteran

served during wartime as well as during peacetime after December 31,

1946, he is entitled to the benefit of these presumptions. See 38

U.S.C. 1137, 1110; 38 C.F.R. 3.2(f), 3.304(a) (1993).

1. Service incurrence: Generally, veterans are presumed to have

entered service in sound condition as to their health. See 38 U.S.C.

ù 1111; Bagby v. Derwinski, 1 Vet.App. 225, 227 (1991). The

presumption of sound condition provides:

[E]very 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 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. 1111 (emphasis added); see also 38 C.F.R. 3.304(b). This

presumption attaches only where there has been an induction

examination in which the later-complained-of disability was not

detected. See Bagby, supra. The regulation provides expressly that

the term "noted" denotes "[ o]nly such conditions as are recorded in

examination reports," 38 C.F.R. 3.304(b), and that "[h]istory of

preservice existence of conditions recorded at the time of

examination does not constitute a notation of such conditions", 38

C.F.R. ù 3.304(b)(1) (1993).

In the present case, the veteran's 1958 and 1962 entrance examination

records did not state that he had asthma at the time of induction,

and clinical evaluations performed at the time of those examinations

showed no abnormalities as to his lungs and chest. R. at 29-30,

48-50. Hence, asthma was not "recorded in [an] examination report[]"

within the meaning of 3.304(b). The physician's note at induction in

1958 referred only to the reported existence of asthma when the

veteran was four years old with no subsequent recurrence. It stated:

"Asthma age 4 [with] all recurrences since denied". R. at 29. This

was part of the veteran's medical "history ". His 1962 entrance

examination similarly stated as part of his "history ": "Asthma in

early childhood. No recurrence." Accordingly, the Court holds that

asthma was not "noted", as defined by 38 U.S.C. 3.304(b), at entry on

either of his (apparently) two periods of service, and that the

presumption of sound condition, therefore, attaches. Although the

Board did not explicitly address the question whether that

presumption applied in this case, to the extent that it may have done

so implicitly, any such conclusion to the contrary is error.

Under 38 U.S.C. 1111 and 38 C.F.R. 3.304(b), the presumption of

soundness may be rebutted by clear and unmistakable evidence that an

injury or disease existed prior to service. The burden of proof is on

VA to rebut the presumption by producing clear and unmistakable

evidence that the veteran's asthma existed prior to service and (as

will be discussed in part II.B.2., below) if the government meets

this requirement, that the condition was not aggravated in service.

See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). The burden is a

formidable one. Ibid. Whether or not there is such evidence is a

legal determination which the Court reviews de novo. See Kinnaman,

supra; Bagby, supra. In determining whether there is clear and

unmistakable evidence that the injury or disease existed prior to

service, the Court considers the history recorded at the time of

examination together with "all other material evidence". See 38

C.F.R. 3.304(b)(1). In determining the inception of the veteran's

asthma, the applicable regulation requires that the following is to

be considered: "medical judgment", "accepted medical principles",

history with "regard to clinical factors pertinent to the basic

character, origin and development of such injury or disease", and a

"thorough analysis of the evidentiary showing and careful correlation

of all material facts, with due regard to accepted medical principles

pertaining to the history, manifestations, clinical course, and

character of the particular injury or disease or residuals thereof".

See 38 C.F.R. 3.304( b)(1).

Undertaking an independent examination of whether the facts found by

the BVA satisfactorily rebut the presumption of sound condition, see

Bagby, 1 Vet.App. at 227, the Court holds that the record is

insufficient to permit effective judicial review to determine whether

there was clear and unmistakable evidence that the veteran entered

service with preexisting asthma, and thus will remand the matter to

the Board. The record does not contain a medical opinion addressing

the relevant medical question -- namely, does a childhood history of

swollen neck glands, a cough, and some throat difficulty, in the

absence of any medical records showing treatment for, or a diagnosis

of, asthma during the veteran's first 18 years, conclusively

establish that the veteran had asthma at entry into service in 1958?

An independent medical opinion or a VA Veterans Health Administration

opinion is needed on this question to produce an informed decision.

See 38 C.F.R. 4.2, 20.901(a),(d); 38 U.S.C. 7109. Indeed, such

medical-evidence requirement also flows from the regulatory

provisions in 3.304(b)(1) and (2) since the generally "accepted

medical principles" noted therein are no longer, under Austin v.

Brown, 6 Vet.App. 547 (1994), and Thurber, Hatlestad II, and Colvin,

all supra, appropriately provided by a physician Board member, such

as there was in this case, or, without further justification, by a

Board medical adviser. Instead, the BVA may base such a determination

only on independent medical evidence of record.

In deciding that all relevant evidence of record established that "

the veteran had asthma prior to service", R. at 11, the Board failed

to discuss the "clear and unmistakable evidence" standard or to point

to any such evidence that asthma had preexisted either of the

veteran's periods of service. The Board simply concluded that the

evidence showed that the veteran had asthma prior to service, and did

not explain how the veteran's reported history of asthma at age 2, 4,

or 5, with no recurrence, could constitute "clear and unmistakable

evidence" of preexisting asthma. Nor

did the Board discuss, as it was required to do, see Gabrielson,

supra, the records of JJ&M in deciding whether there was preexisting

asthma. The Board was required to provide an adequate statement of

reasons or bases for any conclusion that the presumption of sound

condition did not apply or that it was rebutted by clear and

unmistakable evidence. It failed to do so.

A remand to the Board is also required because it failed to cite, let

alone discuss, 38 C.F.R. 3.304 which is clearly raised by the facts

in this case. See Schafrath, 1 Vet.App. at 592-93 (holding that the

BVA's failure to acknowledge or consider regulation (38 C.F.R. 4.40

(1991)) governing application of a compensable rating due to pain,

which was "made potentially applicable through assertions and issues

raised in the record", was unlawful where BVA did not acknowledge or

consider regulation, even though it was never mentioned by claimant);

see also EF, 1 Vet.App. at 326 ( recognizing that VA's statutory

'duty to assist' must extend liberal reading of claimant's statements

to include issues raised in all documents or oral testimony submitted

prior to BVA decision).

The Board's failure to adhere to 38 U.S.C. 7104(a) and Schafrath and

EF, both supra, by not basing its decision on all "applicable

provisions of law and regulation" was, under 38 U.S.C. 7261(a)(3)(A),

"not in accordance with law", and requires the Court to vacate the

BVA decision. See Douglas v. Derwinski, 2 Vet.App. 435, 439 (1992);

Payne v. Derwinski, 1 Vet.App. 85, 87 (1990). The Board is not free

to ignore an applicable regulation, and the evidence supporting its

application, despite an appellant's failure to raise explicitly in

his NOD or 1-9 Appeal the applicability of that regulation and

evidence. See EF, Payne, and Schafrath, all supra; see also Schaper

v. Derwinski, 1 Vet.App. 430, 434 (1991) (quoting Smith v. Derwinski,

1 Vet. App. 267, 272-73 (1991) ("'n reviewing a benefits decision,

the Board must consider the entire record, all of the evidence, and

all of the applicable laws and regulations'"); Peyton, 1 Vet.App. at

286-87 ( instructing Board on remand to consider potentially

applicable regulations which it failed to cite or discuss).

The Board also failed to comply with its duty to assist in the

development of the facts, a duty imposed on the Secretary because the

claim is well grounded here. The Board correctly found that there was

new and material evidence to reopen the claim, which carries with it

a finding of well groundedness, see Robinette v. Brown, __ Vet.App.

__, __, No. 93- 985, slip op. at 12 (Sept. 12, 1994), mot. for

recons. granted on other grounds (Oct. 21, 1994). That duty to assist

required that the Board seek an independent medical opinion, as

discussed above. On remand after further development, unless the

Board finds clear and unmistakable evidence to rebut the presumption

of soundness, the veteran is entitled to be awarded service

connection because in March 1968 he was diagnosed with " bronchial

asthma" (R. at 65), and the Board, in its March 1993 decision,

conceded that he had asthma in service and "until 1991" (the year he

filed his claim to reopen with the RO) (R. at 12). 2. Aggravation:

Even if the veteran's asthma is properly found to have preexisted

service, the presumption of aggravation must also be addressed. When

a condition is properly found to have been preexisting (either

because it was noted at entry or because preexistence was

demonstrated by clear and unmistakable evidence), the presumption of

aggravation provides:

A preexisting injury or disease will be considered to have been

aggravated by active military, naval, or air 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. 1153 (emphasis added); see

also 38 C.F.R. 3.306(a) ( 1993). Furthermore, 38 C.F.R. 3.306(b)

provides that, as to veterans of wartime service, "[c]lear and

unmistakable evidence ( obvious or manifest) is required to rebut the

presumption of aggravation" during service. It is the Secretary's

burden to rebut the presumption of in-service aggravation. See

Laposky v. Brown, 4 Vet.App. 331, 334 (1993); Akins v. Derwinski, 1

Vet.App. 228, 232 ( 1991). "n short, a proper application of [38

U.S.C. 1153 and 38 C.F.R. 3.306 (a), (b)] . . . places an onerous

burden on the government to rebut the presumption of service

connection" and "in the case of aggravation of a preexisting

condition, the government must point to a specific finding that the

increase in disability was due to the natural progress[ ] of the

disease". Akins, 1 Vet.App. at 232. Under Bagby, supra, the Court

reviews de novo the question whether the presumption was rebutted by

clear and unmistakable evidence.

In the instant case, the Board's reasons or bases are deficient in

another material aspect -- explaining its conclusion with respect to

the presumption of aggravation under the applicable statutory and

regulatory requirements. The Board concluded: "A review of the

evidence leads us to conclude that" the veteran's "preexisting

asthma" did not undergo "an increase in severity during service". R.

at 11. The Board concluded that the "medical records that have been

obtained consistently show that the veteran has experienced periods

during which his asthma has flared up,

followed by periods when his pulmonary functions were considered

normal". R. at 12. (A flare-up is defined as "a sudden increase in

symptoms of a latent or subsiding disease." Webster's at 245.) The

Court has held that "[ t]emporary or intermittent [in-service]

flare-ups" of a preservice condition, without evidence of worsening

of the underlying condition (as contrasted to symptoms), "are not

sufficient to be considered 'aggravation in service'". Hunt v.

Derwinski, 1 Vet.App. 292, 296-97 (1991) (finding that, although

there was temporary worsening of symptoms, the condition itself,

which lent itself to flare-ups, did not worsen, and that the

disability remained unaffected by the flare-ups).

Reviewing the evidence de novo under Bagby, the Court concludes that

the record is insufficient to permit effective judicial review to

determine whether there was a worsening of the veteran's underlying

asthma during service. Furthermore, if the asthma did worsen during

service, the Court cannot determine on the current record whether

there was clear and unmistakable evidence that such worsening was due

to the natural progress of the asthma. The record lacks

independent-medical-opinion evidence which could shed light on these

issues. (The Court notes that the Board apparently determined that

there was a sudden increase in the veteran's asthma symptoms during

service (R. at 12), a conclusion that appears to have a plausible

basis in the record ( see, e.g., R. at 38, 53, 63).) Hence, remand is

needed for VA to obtain such a medical opinion on those two questions

and also on whether the asthma symptoms in service rendered the

veteran more susceptible to asthma attacks later, such as between

1979 and 1991. See R. at 150-62. Also, the medical opinion should

address whether a worsening of the condition could reasonably have

been expected to have been found at the time of the separation

examinations. See 38 C.F.R. 20.901(a), (d).

Although the Board stated, while discussing the contents of SMRs,

that the asthma-attack episodes "were apparently aggravated by work

in the engine room" (R. at 9), it failed to discuss this evidence in

connection with the presumption of aggravation (R. at 12).

Furthermore, the Board failed to discuss the significance of the

apparent lack of need for medical attention by the veteran in the

seven years after he left service, between May 1972 and June 1979,

and of his being removed from the engine- room environment, and the

impact of that evidence on the presumption that his asthma had been

aggravated during service. Additionally, the Board failed to explain

the applicability of the presumption of aggravation with respect to

each period of service, but, rather, concluded generally that the

veteran's asthma was not aggravated by service. Because the

presumption of aggravation could potentially apply to either period

of service, the Board is required to explain its conclusions with

respect to the second period if it finds no aggravation during the

first period.

C. CUE

The appellant argues that under 38 C.F.R. 3.105(a) (1993), CUE was

committed in the Board's December 1972 denial of his application for

service connection for asthma in that the Board had then failed to

apply the benefit-of-the-doubt rule and that VA had failed in its duty to

assist. However, the appellant has raised that CUE issue here for the

first time in his brief. In addition, in his brief the appellant has

also raised for the first time the issue of CUE in the 1971 RO

decision. Because neither claim was raised to or adjudicated by the

BVA, the Court lacks jurisdiction to review them. See Russell v.

Principi, 3 Vet.App. 310, 315 (1992) (en banc) ("necessary

jurisdictional 'hook' for this Court to act is a decision of the BVA

on the specific issue of 'clear and unmistakable error'"); see also

Lasovick v. Brown, 6 Vet.App. 141, 152 ( 1994).

As to the claim of CUE in the 1972 BVA decision, the U.S. Court of

Appeals for the Federal Circuit recently held that the CUE regulation

in 3.105 (a) applies only to prior RO decisions and is not available

to mount a collateral attack on a prior Board decision. Smith v.

Brown, __ F.3d __, No. 93-7043 (Fed. Cir. Aug. 12, 1994). See also

Russell, 3 Vet.App. at 314 (benefit-of-the-doubt rule cannot be

applied through a CUE claim because an error either undebatably

exists or there was no error within the meaning of 3.105(a)); Caffrey

v. Brown, 6 Vet.App. 377, 383-84 (1994 ) (failure to fulfill duty to

assist cannot constitute CUE), mot. for en banc review denied (Oct.

25, 1994); but see id. at 384-88 (Steinberg, J., concurring in part

and dissenting in part).

Accordingly, the appeal as to these two CUE claims must be dismissed

for lack of jurisdiction, without prejudice to the appellant's

properly raising in VA's administrative adjudication process a CUE

claim as to the 1971 RO decision.

D. Benefit-of-the-Doubt Rule

According to the benefit-of-the-doubt rule, there need be only an "

approximate balance of positive and negative evidence in order [for a

VA claimant] to prevail". 38 U.S.C. 5107(b); see Gilbert, 1 Vet.App.

at 54 . Further, the "reasons or bases" requirement of 38 U.S.C.

7104(d)(1) applies to the Board's application of the

benefit-of-the-doubt rule. See Gilbert, 1 Vet.App. at 58. Where, as

here, "there is significant evidence in support of an appellant's

claim, the Board must provide a satisfactory explanation as to why

the evidence was not in equipoise." Williams v. Brown, 4 Vet.App.

270, 273-74 (1993). Instead, in its March 1993 decision the Board did

no more than state a conclusion that "the preponderance of the

evidence is against a grant of service connection for asthma". R. at

6. On remand, in evaluating the evidence as to service-incurrence of

asthma or aggravation of asthma in service, the Board must explain

carefully its conclusions as to the applicability of the

benefit-of-the- doubt rule as to each material issue in the case. See

Williams, supra; Sheets v. Derwinski, 2 Vet.App. 512, 516 (1992);

O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991).

III. Conclusion

Upon consideration of the record and the pleadings of the parties,

the Court vacates the March 4, 1993, BVA decision, and remands the

matter to the Board for prompt further development and

readjudication, in accordance with all material of record and

applicable law and regulation -- all consistent with this opinion.

See Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). In its reasons

or bases, the Board must take account of the statutory and regulatory

requirements concerning the presumptions of sound condition and, if

indicated, of aggravation, see 38 U.S.C. 1111, 1153; 38 C.F.R.

3.304(b), 3.306(a), and the Board may rely on only medical evidence

in the record to support any medical conclusions. See Thurber,

Hatlestad II, and Colvin all supra. If the Board concludes that there

is clear and unmistakable evidence that the veteran's asthma

preexisted his first period of service, it must discuss the

applicability of the presumption of aggravation with respect to the

first period of service; if both the presumptions of sound condition

and, if indicated, of aggravation, are rebutted as to the first

period of service, the Board must discuss the applicability of the

presumptions with respect to the second period of service. On remand,

the appellant "will be free to submit additional evidence and

argument" on the remanded issues. Quarles v. Derwinski, 3 Vet.App.

129, 141 (1992). The CUE claims regarding the Board's December 1972

decision and the 1971 RO decision are dismissed for lack of

jurisdiction. See Smith, supra; Russell, supra.

A final decision by the Board following the remand herein ordered

will constitute a new decision which, if adverse, may be appealed to

this Court only upon the filing of a new Notice of Appeal with the

Court not later than 120 days after the date on which notice of that

new decision is mailed to the appellant.

VACATED AND REMANDED; DISMISSED IN PART.

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[Code of Federal Regulations]

[Title 38, Volume 1, Parts 0 to 17]

[Revised as of July 1, 2000]

From the U.S. Government Printing Office via GPO Access

[CITE: 38CFR3.380]

[Page 255]

TITLE 38--PENSIONS, BONUSES, AND

VETERANS' RELIEF

CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS

PART 3--ADJUDICATION--Table of Contents

Subpart A--Pension, Compensation, and Dependency and Indemnity

Compensation

Sec. 3.380 Diseases of allergic etiology.

Diseases of allergic etiology, including bronchial asthma and urticaria, 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.

[26 FR 1592, Feb. 24, 1961]

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Well then, It's time to Rock and Roll !! ~Wings

ok i did some research because i don't want to file anything and make a fraud claim. I went to the va complaining about asthma after returning from Iraq.(this was done before the year time) All they gave me was some asthma medicane at the va and that is all they did. I had to go to a civilian doctor to get checked for asthma. As a matter fact just yesterday the va send me some asthma medicine in the mail. Here is my plain of attack file nod and shoot for 3.310 proximate results, secondary conditions. What do you recomend

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ok i did some research because i don't want to file anything and make a fraud claim. I went to the va complaining about asthma after returning from Iraq.(this was done before the year time) All they gave me was some asthma medicane at the va and that is all they did. I had to go to a civilian doctor to get checked for asthma. As a matter fact just yesterday the va send me some asthma medicine in the mail. Here is my plain of attack file nod and shoot for 3.310 proximate results, secondary conditions. What do you recomend

3.310 proximate results, secondary conditions (secondary to your allergies?) - - that's what I would do if I had no medical diagnosis of asthma prior to enlistment.

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Has it been more than a year since you got out of the service. I had the same problem with TMJ. They did not diagnosis it in the army even though I was examined for it. If there is nothing in your medical records you are going to have a problem.

what is tmj? and did you ever get sc for it?

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3.310 proximate results, secondary conditions (secondary to your allergies?) - - that's what I would do if I had no medical diagnosis of asthma prior to enlistment.

ok while i am waiting on the nod is there anything else that i can do? I have an appt today for allergies and the doctor said that because of my deviated septum that he can't tell if i have pollups so i have to get exam to check for that. That just increased my allergies from sc 0% to 10%. Should i appeal that or wait.

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Hells Bells, Aren't you working with a vets rep or service officer? If you want to appeal any decision from the RO (Regional Office), YOU need to file a NOD (Notice of Disagreement). You are not "waiting" for an NOD to come from the VA: you must file your NOD. If you do not agree with the rating award of 10% for Allergies, then file an NOD.

Did you get a copy of your last C@P Exam? Did you order copies of all your medical records (VA, SMR's, Civilian).? YOU are going to need to submit evidence to substantiate your claim. Sounds like you have several medical issues surrounding your respiratory system ... Have you filed for any secondary or related conditions? You need to get ALL of your medical records together and talk to your doctor about the condition and extent of your respiratory problems! If I were you, I would also talk with my MOM (or childhood caretakers), and ask them if you had asthma as a child or adolescent and what medical treatments you recieved. If the VA asks you if you had childhood asthma, you are going to need to answer honestly. A letter (lay statement) from your mother would help in this matter. If your asthama worsened post discharge, what do you feel is the cause? What does the doctor say is the cause of your adult asthma? Are you smoking? Were you exposed to toxins while active duty? Are your allergies seasonal or year round? What's the cuase of your allergies? Are they getting better, worse? Polyps? Sinus infections? Deviated septum? Just some things to think about! YOU need to have evidence to prove your claim. ~Wings

See Sec. 4.97 Schedule of ratings--respiratory system.

http://frwebgate.access.gpo.gov/cgi-bin/ge...ON=97&TYPE=TEXT

[Code of Federal Regulations]

[Title 38, Volume 1]

[Revised as of July 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 38CFR4.97]

[Page 417-421]

TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF

CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS

PART 4_SCHEDULE FOR RATING DISABILITIES--Table of Contents

Subpart B_Disability Ratings

Sec. 4.97 Schedule of ratings--respiratory system.

------------------------------------------------------------------------

Rating

------------------------------------------------------------------------

DISEASES OF THE NOSE AND THROAT

------------------------------------------------------------------------

6502 Septum, nasal, deviation of:

Traumatic only,

With 50-percent obstruction of the nasal passage on 10

both sides or complete obstruction on one side........

6504 Nose, loss of part of, or scars:

Exposing both nasal passages............................... 30

Loss of part of one ala, or other obvious disfigurement.... 10

Note: Or evaluate as DC 7800, scars, disfiguring, head, face,

or neck.

6510 Sinusitis, pansinusitis, chronic.

6511 Sinusitis, ethmoid, chronic.

6512 Sinusitis, frontal, chronic.

6513 Sinusitis, maxillary, chronic.

6514 Sinusitis, sphenoid, chronic.

General Rating Formula for Sinusitis (DC's 6510 through

6514):

Following radical surgery with chronic osteomyelitis, 50

or; near constant sinusitis characterized by

headaches, pain and tenderness of affected sinus, and

purulent discharge or crusting after repeated

surgeries.............................................

Three or more incapacitating episodes per year of 30

sinusitis requiring prolonged (lasting four to six

weeks) antibiotic treatment, or; more than six non-

incapacitating episodes per year of sinusitis

characterized by headaches, pain, and purulent

discharge or crusting.................................

One or two incapacitating episodes per year of 10

sinusitis requiring prolonged (lasting four to six

weeks) antibiotic treatment, or; three to six non-

incapacitating episodes per year of sinusitis

characterized by headaches, pain, and purulent

discharge or crusting.................................

Detected by X-ray only................................. 0

Note: An incapacitating episode of sinusitis means one that

requires bed rest and treatment by a physician.

6515 Laryngitis, tuberculous, active or inactive.

Rate under Sec. Sec. 4.88c or 4.89, whichever is

appropriate.

6516 Laryngitis, chronic:

Hoarseness, with thickening or nodules of cords, polyps, 30

submucous infiltration, or pre-malignant changes on biopsy

Hoarseness, with inflammation of cords or mucous membrane.. 10

6518 Laryngectomy, total....................................... \1\ 100

Rate the residuals of partial laryngectomy as laryngitis

(DC 6516), aphonia (DC 6519), or stenosis of larynx (DC

6520).

6519 Aphonia, complete organic:

Constant inability to communicate by speech................ \1\ 100

Constant inability to speak above a whisper................ 60

Note: Evaluate incomplete aphonia as laryngitis, chronic

(DC 6516).

6520 Larynx, stenosis of, including residuals of laryngeal

trauma (unilateral or bilateral):

Forced expiratory volume in one second (FEV-1) less than 40 100

percent of predicted value, with Flow-Volume Loop

compatible with upper airway obstruction, or; permanent

tracheostomy..............................................

FEV-1 of 40- to 55-percent predicted, with Flow-Volume Loop 60

compatible with upper airway obstruction..................

FEV-1 of 56- to 70-percent predicted, with Flow-Volume Loop 30

compatible with upper airway obstruction..................

FEV-1 of 71- to 80-percent predicted, with Flow-Volume Loop 10

compatible with upper airway obstruction..................

Note: Or evaluate as aphonia (DC 6519).

6521 Pharynx, injuries to:

[[Page 418]]

Stricture or obstruction of pharynx or nasopharynx, or; 50

absence of soft palate secondary to trauma, chemical burn,

or granulomatous disease, or; paralysis of soft palate

with swallowing difficulty (nasal regurgitation) and

speech impairment.........................................

6522 Allergic or vasomotor rhinitis:

With polyps................................................ 30

Without polyps, but with greater than 50-percent 10

obstruction of nasal passage on both sides or complete

obstruction on one side...................................

6523 Bacterial rhinitis:

Rhinoscleroma.............................................. 50

With permanent hypertrophy of turbinates and with greater 10

than 50-percent obstruction of nasal passage on both sides

or complete obstruction on one side.......................

6524 Granulomatous rhinitis:

Wegener's granulomatosis, lethal midline granuloma......... 100

Other types of granulomatous infection..................... 20

----------------------------------------------------------------

DISEASES OF THE TRACHEA AND BRONCHI

------------------------------------------------------------------------

6600 Bronchitis, chronic:

FEV-1 less than 40 percent of predicted value, or; the 100

ratio of Forced Expiratory Volume in one second to Forced

Vital Capacity (FEV-1/FVC) less than 40 percent, or;

Diffusion Capacity of the Lung for Carbon Monoxide by the

Single Breath Method (DLCO (SB)) less than 40-percent

predicted, or; maximum exercise capacity less than 15 ml/

kg/min oxygen consumption (with cardiac or respiratory

limitation), or; cor pulmonale (right heart failure), or;

right ventricular hypertrophy, or; pulmonary hypertension

(shown by Echo or cardiac catheterization), or; episode(s)

of acute respiratory failure, or; requires outpatient

oxygen therapy............................................

FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 60

to 55 percent, or; DLCO (SB) of 40- to 55-percent

predicted, or; maximum oxygen consumption of 15 to 20 ml/

kg/min (with cardiorespiratory limit).....................

FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 30

to 70 percent, or; DLCO (SB) 56- to 65-percent predicted..

FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 10

to 80 percent, or; DLCO (SB) 66- to 80-percent predicted..

6601 Bronchiectasis:

With incapacitating episodes of infection of at least six 100

weeks total duration per year.............................

With incapacitating episodes of infection of four to six 60

weeks total duration per year, or; near constant findings

of cough with purulent sputum associated with anorexia,

weight loss, and frank hemoptysis and requiring antibiotic

usage almost continuously.................................

With incapacitating episodes of infection of two to four 30

weeks total duration per year, or; daily productive cough

with sputum that is at times purulent or blood-tinged and

that requires prolonged (lasting four to six weeks)

antibiotic usage more than twice a year...................

Intermittent productive cough with acute infection 10

requiring a course of antibiotics at least twice a year...

Or rate according to pulmonary impairment as for chronic

bronchitis (DC 6600).

Note: An incapacitating episode is one that requires

bedrest and treatment by a physician.

6602 Asthma, bronchial:

FEV-1 less than 40-percent predicted, or; FEV-1/FVC less 100

than 40 percent, or; more than one attack per week with

episodes of respiratory failure, or; requires daily use of

systemic (oral or parenteral) high dose corticosteroids or

immuno-suppressive medications............................

FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 60

to 55 percent, or; at least monthly visits to a physician

for required care of exacerbations, or; intermittent (at

least three per year) courses of systemic (oral or

parenteral) corticosteroids...............................

FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 30

to 70 percent, or; daily inhalational or oral

bronchodilator therapy, or; inhalational anti-inflammatory

medication................................................

FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 10

to 80 percent, or; intermittent inhalational or oral

bronchodilator therapy....................................

Note: In the absence of clinical findings of asthma at time

of examination, a verified history of asthmatic attacks

must be of record.

6603 Emphysema, pulmonary:

FEV-1 less than 40 percent of predicted value, or; the 100

ratio of Forced Expiratory Volume in one second to Forced

Vital Capacity (FEV-1/FVC) less than 40 percent, or;

Diffusion Capacity of the Lung for Carbon Monoxide by the

Single Breath Method (DLCO (SB)) less than 40-percent

predicted, or; maximum exercise capacity less than 15 ml/

kg/min oxygen consumption (with cardiac or respiratory

limitation), or; cor pulmonale (right heart failure), or;

right ventricular hypertrophy, or; pulmonary hypertension

(shown by Echo or cardiac catheterization), or; episode(s)

of acute respiratory failure, or; requires outpatient

oxygen therapy............................................

FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 60

to 55 percent, or; DLCO (SB) of 40- to 55-percent

predicted, or; maximum oxygen consumption of 15 to 20 ml/

kg/min (with cardiorespiratory limit).....................

FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 30

to 70 percent, or; DLCO (SB) 56- to 65-percent predicted..

FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 10

to 80 percent, or; DLCO (SB) 66- to 80-percent predicted..

6604 Chronic obstructive pulmonary disease:

[[Page 419]]

FEV-1 less than 40 percent of predicted value, or; the 100

ratio of Forced Expiratory Volume in one second to Forced

Vital Capacity (FEV-1/FVC) less than 40 percent, or;

Diffusion Capacity of the Lung for Carbon Monoxide by the

Single Breath Method (DLCO (SB)) less than 40-percent

predicted, or; maximum exercise capacity less than 15 ml/

kg/min oxygen consumption (with cardiac or respiratory

limitation), or; cor pulmonale (right heart failure), or;

right ventricular hypertrophy, or; pulmonary hypertension

(shown by Echo or cardiac catheterization), or; episode(s)

of acute respiratory failure, or; requires outpatient

oxygen therapy............................................

FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 60

to 55 percent, or; DLCO (SB) of 40- to 55-percent

predicted, or; maximum oxygen consumption of 15 to 20 ml/

kg/min (with cardiorespiratory limit).....................

FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 30

to 70 percent, or; DLCO (SB) 56- to 65-percent predicted..

FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 10

to 80 percent, or; DLCO (SB) 66- to 80-percent predicted..

----------------------------------------------------------------

DISEASES OF THE LUNGS AND PLEURA--TUBERCULOSIS

Ratings for Pulmonary Tuberculosis Entitled on August 19, 1968

------------------------------------------------------------------------

6701 Tuberculosis, pulmonary, chronic, far advanced, active.... 100

6702 Tuberculosis, pulmonary, chronic, moderately advanced, 100

active........................................................

6703 Tuberculosis, pulmonary, chronic, minimal, active......... 100

6704 Tuberculosis, pulmonary, chronic, active, advancement 100

unspecified...................................................

6721 Tuberculosis, pulmonary, chronic, far advanced, inactive..

6722 Tuberculosis, pulmonary, chronic, moderately advanced,

inactive......................................................

6723 Tuberculosis, pulmonary, chronic, minimal, inactive.......

6724 Tuberculosis, pulmonary, chronic, inactive, advancement

unspecified...................................................

General Rating Formula for Inactive Pulmonary Tuberculosis: 100

For two years after date of inactivity, following active

tuberculosis, which was clinically identified during

service or subsequently...................................

Thereafter for four years, or in any event, to six years 50

after date of inactivity..................................

Thereafter, for five years, or to eleven years after date 30

of inactivity.............................................

Following far advanced lesions diagnosed at any time while 30

the disease process was active, minimum...................

Following moderately advanced lesions, provided there is 20

continued disability, emphysema, dyspnea on exertion,

impairment of health, etc.................................

Otherwise.................................................. 0

Note (1): The 100-percent rating under codes 6701 through 6724

is not subject to a requirement of precedent hospital

treatment. It will be reduced to 50 percent for failure to

submit to examination or to follow prescribed treatment upon

report to that effect from the medical authorities. When a

veteran is placed on the 100-percent rating for inactive

tuberculosis, the medical authorities will be appropriately

notified of the fact, and of the necessity, as given in

footnote 1 to 38 U.S.C. 1156 (and formerly in 38 U.S.C. 356,

which has been repealed by Public Law 90-493), to notify the

Adjudication Division in the event of failure to submit to

examination or to follow treatment.

Note (2): The graduated 50-percent and 30-percent ratings and

the permanent 30 percent and 20 percent ratings for inactive

pulmonary tuberculosis are not to be combined with ratings for

other respiratory disabilities. Following thoracoplasty the

rating will be for removal of ribs combined with the rating

for collapsed lung. Resection of the ribs incident to

thoracoplasty will be rated as removal.

----------------------------------------------------------------

Ratings for Pulmonary Tuberculosis Initially Evaluated After August 19,

1968

------------------------------------------------------------------------

6730 Tuberculosis, pulmonary, chronic, active.................. 100

Note: Active pulmonary tuberculosis will be considered

permanently and totally disabling for non-service-

connected pension purposes in the following circumstances:

(a) Associated with active tuberculosis involving other

than the respiratory system.

(:P With severe associated symptoms or with extensive

cavity formation.

© Reactivated cases, generally.

(d) With advancement of lesions on successive

examinations or while under treatment.

(e) Without retrogression of lesions or other evidence

of material improvement at the end of six months

hospitalization or without change of diagnosis from

``active'' at the end of 12 months hospitalization.

Material improvement means lessening or absence of

clinical symptoms, and X-ray findings of a stationary

or retrogressive lesion.

6731 Tuberculosis, pulmonary, chronic, inactive:

Depending on the specific findings, rate residuals as

interstitial lung disease, restrictive lung disease, or,

when obstructive lung disease is the major residual, as

chronic bronchitis (DC 6600). Rate thoracoplasty as

removal of ribs under DC 5297.

Note: A mandatory examination will be requested immediately

following notification that active tuberculosis evaluated

under DC 6730 has become inactive. Any change in

evaluation will be carried out under the provisions of

Sec. 3.105(e).

6732 Pleurisy, tuberculous, active or inactive:

Rate under Sec. Sec. 4.88c or 4.89, whichever is

appropriate.

----------------------------------------------------------------

NONTUBERCULOUS DISEASES

------------------------------------------------------------------------

6817 Pulmonary Vascular Disease:

Primary pulmonary hypertension, or; chronic pulmonary 100

thromboembolism with evidence of pulmonary hypertension,

right ventricular hypertrophy, or cor pulmonale, or;

pulmonary hypertension secondary to other obstructive

disease of pulmonary arteries or veins with evidence of

right ventricular hypertrophy or cor pulmonale............

[[Page 420]]

Chronic pulmonary thromboembolism requiring anticoagulant 60

therapy, or; following inferior vena cava surgery without

evidence of pulmonary hypertension or right ventricular

dysfunction...............................................

Symptomatic, following resolution of acute pulmonary 30

embolism..................................................

Asymptomatic, following resolution of pulmonary 0

thromboembolism...........................................

Note: Evaluate other residuals following pulmonary embolism

under the most appropriate diagnostic code, such as

chronic bronchitis (DC 6600) or chronic pleural effusion

or fibrosis (DC 6844), but do not combine that evaluation

with any of the above evaluations.

6819 Neoplasms, malignant, any specified part of 100

respiratory system exclusive of skin growths..............

Note: A rating of 100 percent shall continue beyond the

cessation of any surgical, X-ray, antineoplastic

chemotherapy or other therapeutic procedure. Six months

after discontinuance of such treatment, the appropriate

disability rating shall be determined by mandatory VA

examination. Any change in evaluation based upon that or

any subsequent examination shall be subject to the

provisions of Sec. 3.105(e) of this chapter. If there

has been no local recurrence or metastasis, rate on

residuals.

6820 Neoplasms, benign, any specified part of respiratory

system. Evaluate using an appropriate respiratory analogy.

----------------------------------------------------------------

Bacterial Infections of the Lung

------------------------------------------------------------------------

6822 Actinomycosis.

6823 Nocardiosis.

6824 Chronic lung abscess.

General Rating Formula for Bacterial Infections of the Lung

(diagnostic codes 6822 through 6824):

Active infection with systemic symptoms such as fever, 100

night sweats, weight loss, or hemoptysis..............

Depending on the specific findings, rate residuals as

interstitial lung disease, restrictive lung disease, or,

when obstructive lung disease is the major residual, as

chronic bronchitis (DC 6600).

----------------------------------------------------------------

Interstitial Lung Disease

------------------------------------------------------------------------

6825 Diffuse interstitial fibrosis (interstitial pneumonitis,

fibrosing alveolitis).

6826 Desquamative interstitial pneumonitis.

6827 Pulmonary alveolar proteinosis.

6828 Eosinophilic granuloma of lung.

6829 Drug-induced pulmonary pneumonitis and fibrosis.

6830 Radiation-induced pulmonary pneumonitis and fibrosis.

6831 Hypersensitivity pneumonitis (extrinsic allergic

alveolitis).

6832 Pneumoconiosis (silicosis, anthracosis, etc.).

6833 Asbestosis.

General Rating Formula for Interstitial Lung Disease

(diagnostic codes 6825 through 6833):

Forced Vital Capacity (FVC) less than 50-percent 100

predicted, or; Diffusion Capacity of the Lung for

Carbon Monoxide by the Single Breath Method (DLCO

(SB)) less than 40-percent predicted, or; maximum

exercise capacity less than 15 ml/kg/min oxygen

consumption with cardiorespiratory limitation, or; cor

pulmonale or pulmonary hypertension, or; requires

outpatient oxygen therapy.............................

FVC of 50- to 64-percent predicted, or; DLCO (SB) of 40- 60

to 55-percent predicted, or; maximum exercise

capacity of 15 to 20 ml/kg/min oxygen consumption with

cardiorespiratory limitation..........................

FVC of 65- to 74-percent predicted, or; DLCO (SB) of 56- 30

to 65-percent predicted..............................

FVC of 75- to 80-percent predicted, or; DLCO (SB) of 66- 10

to 80-percent predicted..............................

----------------------------------------------------------------

Mycotic Lung Disease

------------------------------------------------------------------------

6834 Histoplasmosis of lung.

6835 Coccidioidomycosis.

6836 Blastomycosis.

6837 Cryptococcosis.

6838 Aspergillosis.

6839 Mucormycosis.

General Rating Formula for Mycotic Lung Disease (diagnostic

codes 6834 through 6839):

Chronic pulmonary mycosis with persistent fever, weight 100

loss, night sweats, or massive hemoptysis.............

Chronic pulmonary mycosis requiring suppressive therapy 50

with no more than minimal symptoms such as occasional

minor hemoptysis or productive cough..................

Chronic pulmonary mycosis with minimal symptoms such as 30

occasional minor hemoptysis or productive cough.......

Healed and inactive mycotic lesions, asymptomatic...... 0

Note: Coccidioidomycosis has an incubation period up to 21

days, and the disseminated phase is ordinarily manifest

within six months of the primary phase. However, there are

instances of dissemination delayed up to many years after

the initial infection which may have been unrecognized.

Accordingly, when service connection is under

consideration in the absence of record or other evidence

of the disease in service, service in southwestern United

States where the disease is endemic and absence of

prolonged residence in this locality before or after

service will be the deciding factor.

----------------------------------------------------------------

Restrictive Lung Disease

------------------------------------------------------------------------

6840 Diaphragm paralysis or paresis.

6841 Spinal cord injury with respiratory insufficiency.

6842 Kyphoscoliosis, pectus excavatum, pectus carinatum.

[[Page 421]]

6843 Traumatic chest wall defect, pneumothorax, hernia, etc.

6844 Post-surgical residual (lobectomy, pneumonectomy, etc.).

6845 Chronic pleural effusion or fibrosis.

General Rating Formula for Restrictive Lung Disease

(diagnostic codes 6840 through 6845):

FEV-1 less than 40 percent of predicted value, or; the 100

ratio of Forced Expiratory Volume in one second to

Forced Vital Capacity (FEV-1/FVC) less than 40

percent, or; Diffusion Capacity of the Lung for Carbon

Monoxide by the Single Breath Method (DLCO (SB)) less

than 40-percent predicted, or; maximum exercise

capacity less than 15 ml/kg/min oxygen consumption

(with cardiac or respiratory limitation), or; cor

pulmonale (right heart failure), or; right ventricular

hypertrophy, or; pulmonary hypertension (shown by Echo

or cardiac catheterization), or; episode(s) of acute

respiratory failure, or; requires outpatient oxygen

therapy...............................................

FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 60

40 to 55 percent, or; DLCO (SB) of 40- to 55-percent

predicted, or; maximum oxygen consumption of 15 to 20

ml/kg/min (with cardiorespiratory limit)..............

FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 30

56 to 70 percent, or; DLCO (SB) 56- to 65-percent

predicted.............................................

FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 10

71 to 80 percent, or; DLCO (SB) 66- to 80-percent

predicted.............................................

Or rate primary disorder.

Note (1): A 100-percent rating shall be assigned for

pleurisy with empyema, with or without pleurocutaneous

fistula, until resolved.

Note (2): Following episodes of total spontaneous

pneumothorax, a rating of 100 percent shall be assigned as

of the date of hospital admission and shall continue for

three months from the first day of the month after

hospital discharge.

Note (3): Gunshot wounds of the pleural cavity with bullet

or missile retained in lung, pain or discomfort on

exertion, or with scattered rales or some limitation of

excursion of diaphragm or of lower chest expansion shall

be rated at least 20-percent disabling. Disabling injuries

of shoulder girdle muscles (Groups I to IV) shall be

separately rated and combined with ratings for respiratory

involvement. Involvement of Muscle Group XXI (DC 5321),

however, will not be separately rated.

6846 Sarcoidosis:

Cor pulmonale, or; cardiac involvement with congestive 100

heart failure, or; progressive pulmonary disease with

fever, night sweats, and weight loss despite treatment....

Pulmonary involvement requiring systemic high dose 60

(therapeutic) corticosteroids for control.................

Pulmonary involvement with persistent symptoms requiring 30

chronic low dose (maintenance) or intermittent

corticosteroids...........................................

Chronic hilar adenopathy or stable lung infiltrates without 0

symptoms or physiologic impairment........................

Or rate active disease or residuals as chronic bronchitis

(DC 6600) and extra-pulmonary involvement under specific

body system involved......................................

6847 Sleep Apnea Syndromes (Obstructive, Central, Mixed):

Chronic respiratory failure with carbon dioxide retention 100

or cor pulmonale, or; requires tracheostomy...............

Requires use of breathing assistance device such as 50

continuous airway pressure (CPAP) machine.................

Persistent day-time hypersomnolence........................ 30

Asymptomatic but with documented sleep disorder breathing.. 0

------------------------------------------------------------------------

\1\ Review for entitlement to special monthly compensation under Sec.

3.350 of this chapter.

[61 FR 46728, Sept. 5, 1996]

ok i filed an nod with the dav yesterday for the astma. I don't smoke but when i was in iraq we pulled alot of guard duty and the area were we pulled guard duty was next to a big trash pit were they burned anything and everything so i would pull 4 hour shifts there everyday. C@P Exam? not sure what that is? OH how do i get a copy of all my medical records from the va? VA, SMR's, Civilian).? what is smr's? I have all my medical documents from the civilian doctors. I Have filed for secondary or related conditions for asthma but that is the only one. Oh thanks for the help wings.

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ok i filed an nod with the dav yesterday for the astma. I don't smoke but when i was in iraq we pulled alot of guard duty and the area were we pulled guard duty was next to a big trash pit were they burned anything and everything so i would pull 4 hour shifts there everyday. C@P Exam? not sure what that is? OH how do i get a copy of all my medical records from the va? VA, SMR's, Civilian).? what is smr's? I have all my medical documents from the civilian doctors. I Have filed for secondary or related conditions for asthma but that is the only one. Oh thanks for the help wings.

SMR's (service medical records) can be had from NARA http://www.archives.gov/veterans/evetrecs/index.html

FOIA (freedom of information act) - Use for any request for medical records, even the VA.

You just gotta write a note stateing, "Under the Freedom of Infomation Act, I am requesting copies of my bla, bla, bla." Sign and Date your request. Keep a copy of EVERYTHING you send to the VA.

Send your FOIA request for a copy of all VA Medical Records to the Release of Information Office at your treating VA Medical Center, same-same with a request for your recent C&P Exam (compensation annd pension examination) . . .

You are Welcome ;-)

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SMR's (service medical records) can be had from NARA http://www.archives.gov/veterans/evetrecs/index.html

FOIA (freedom of information act) - Use for any request for medical records, even the VA.

You just gotta write a note stateing, "Under the Freedom of Infomation Act, I am requesting copies of my bla, bla, bla." Sign and Date your request. Keep a copy of EVERYTHING you send to the VA.

Send your FOIA request for a copy of all VA Medical Records to the Release of Information Office at your treating VA Medical Center, same-same with a request for your recent C&P Exam (compensation annd pension examination) . . .

You are Welcome ;-)

How long after the army can you claim something. For example my wife says that i am crazy so she recomended i go to a doctor. Of course he gave me some prozac but i had to stop taking it because made me nervous so they gave me another pill. I got out of the army in june 2004 and i have been having all these problems but never when i was in the military. Also suffer from acid reflux real bad. Question is could this be caused from military service.

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  • HadIt.com Elder
How long after the army can you claim something. For example my wife says that i am crazy so she recomended i go to a doctor. Of course he gave me some prozac but i had to stop taking it because made me nervous so they gave me another pill. I got out of the army in june 2004 and i have been having all these problems but never when i was in the military. Also suffer from acid reflux real bad. Question is could this be caused from military service.

You can file a claim any time, there is NO time limit. The Claim must be in writing. Current medical conditions must be related to injury or disease incurred or aggravted by active duty service. You have to substantiate (prove) your claim with evidence that your current conditions are related to service.

Health Care Benefits

http://www1.va.gov/opa/is1/health.htm

Combat Veterans: Veterans who served in combat locations during active military service after Nov. 11, 1998, are eligible for free health care services for conditions potentially related to combat service for two years following separation from active duty. For additional information call 1-877-222-8387.

Readjustment Counseling Service - - Readjustment counseling is community-based Vet Centers. Readjustment difficulties can include post-traumatic stress disorder (PTSD) or any other problems that affect functioning within the family, work, school or other areas of everyday life. For additional information, contact the nearest Vet Center, listed in the federal government section of telephone directories, or visit the Internet: http://www.va.gov/rcs/

Veteran Health Registries - - VA maintains veteran health registries to provide special health examinations and health-related information to certain groups of veterans. Gulf War Registry: For veterans who served in the Gulf War (Aug. 2, 1990, to a date not yet established) and Operation Iraqi Freedom.

Edited by Wings (see edit history)
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