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Court Wins

Asthma Denial Contained Legal Error by the Board, Court Finds

Bradley Hennings

October 24, 2018

Updated: November 20, 2023

Court Win - Service Connection PTSD

Summary of the Case

The Veteran served in the United States Army from August 1976 to March 1977. While the Veteran’s medical records indicate that he has been diagnosed with asthma since age 9, there were no problems with asthma noted on his entry examination. As such, the Veteran was presumed to be sound upon entry into service. He initially filed for service-connected compensation for asthma in 2008 and was denied. The Veteran continued to appeal this issue to the Board of Veterans’ Appeals, but was again denied.

Board denies service connection for asthma

In January of 2016, the Board issued a decision denying service connection for the Veteran’s asthma. In its decision, the Board rebutted the presumption of soundness, indicating that there is clear and unmistakable evidence that the Veteran’s asthma existed before service and was not aggravated by service. The Board relied on the Veteran’s separation examination and an accompanying questionnaire in which he answered questions about his medical history and current medical condition. The Board noted that the Veteran denied having a history of or a present condition of asthma, and that the examination report stated that his nose, mouth, throat, lungs, and chest were “normal”. Additionally, the Board relied on a September 2013 VA examination in which the examiner opined that the Veteran’s asthma clearly existed prior to active duty and was not aggravated by active duty. Taking these findings together, the Board determined that the Veteran’s pre-existing asthma underwent no increase in disability during service.

CCK appeals service connection for asthma denial to Court

CCK successfully appealed to the Court of Appeals for Veterans Claims the Board decision that denied service connection for the Veteran’s asthma. CCK argued that the Board erred in relying on the above-mentioned evidence. Specifically, the Board depended on the absence of evidence in the Veteran’s separation examination. Furthermore, CCK challenged the adequacy of the 2013 VA examination by stating that the examiner failed to provide any rationale or analysis for her conclusions. As such, the Board did not provide clear and unmistakable evidence to prove a lack of aggravation as it pertains to the Veteran’s asthma.

CAVC agrees with CCK’s arguments

The Court agreed with CCK that the Board’s evidence was not clear and unmistakable and therefore unable to prove a lack of aggravation. Namely, the Board did not point to any evidence in the medical procedures performed during the Veteran’s separation examination that would have revealed the presence of asthma. Furthermore, the Court confirmed that the 2013 VA examination was inadequate, and it was inexplicable for the Board to assert otherwise. The Court also recognized that the Veteran’s separation examination actually weighs against the Board’s decision. Specifically, the examination indicates the Veteran suffered an asthma attack during basic training and was prescribed medication for it. Ultimately, the Court reversed the Board’s finding that the presumption of soundness was rebutted and remanded the issue of service connection for asthma. The Court instructs the Board to determine whether the Veteran had active asthma during the appeal period and whether that asthma was caused by aggravation during service.

To read the Court’s decision, click here.

About the Author

Bio photo of Bradley Hennings

Bradley Hennings joined Chisholm Chisholm & Kilpatrick as an attorney in January 2018 and currently serves as a Partner in the firm. His practice focuses on the U.S. Department of Veterans Affairs (VA) and the U.S. Court of Appeals for Veterans Claims.

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