Service Conection

[schauba]

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?

[Wings]

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.

[Wings]

[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]

[schauba]

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

[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

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.

[schauba]

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?

[schauba]

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.