Citation Nr: 1754179
Decision Date: 11/28/17 Archive Date: 12/07/17
DOCKET NO. 11-26 601 ) DATE
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama
Entitlement to service connection for chronic bronchitis, claimed as respiratory condition.
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
ATTORNEY FOR THE BOARD
Stephen LoGerfo, Associate Counsel
The Veteran served in the United States Army from March 1981 to March 1984.
This case comes before the Board of Veterans Appeals (Board) from a March rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.
The Veteran had a video hearing before the undersigned Veterans Law Judge (VLJ) in June 2016.
The claim was remanded in August 2016 for further development.
FINDING OF FACT
The weight of the evidence is against a finding that the Veteran currently has a chronic bronchitis condition.
CONCLUSION OF LAW
The criteria for entitlement to service connection for a chronic bronchitis condition have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Service Connection
Generally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (2015).
The Veteran claims that in-service incurrence of pneumonia is linked to his current disability of chronic bronchitis. He testified that he got sick after being out in the rain all night while stationed at Fort Ord. He claims that he now has a spot on his lung and gets sick at least once a year with a respiratory infection. The Veteran did have a diagnosed left upper lobe pneumonia condition in service in January 1982. Furthermore, the Veteran has documented bronchitis in March 2007, November 2007 and November 2008.
The Veteran had not had a VA examination to ascertain whether there is a nexus between his in-service pneumonia condition and any current chronic bronchitis. An examination was thus provided in February 2017.
The VA examiner considered all of the Veteran’s post-military urgent care visits and other treatment records documenting bronchitis, coughs, sore throats and congestion. The VA examiner, however, concluded that the Veteran does not have a current respiratory condition. The examiner noted that a chest x-ray in February 2017 showed no abnormal findings. The Veteran also had a normal pulmonary function test. The VA examiner noted that the Veteran had normal spirometry and chest x-rays and that while he has intermittent episodes of bronchitis and pharyngitis, these are acute episodes. There is, thus, no evidence for a diagnosis of chronic bronchitis nor any residuals due to pneumonia in 1982. The VA examiner did not go further to issue a nexus opinion because she concluded that the Veteran does not have a current respiratory condition.
The Board finds that VA examiner’s opinion persuasive in that it cited objective criteria including chest x-rays, spirometry and pulmonary function tests to conclude that the Veteran does not have a chronic condition but instead has only suffered from acute episodes of bronchitis.
The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The Board recognizes that the Court has held that the presence of a chronic disability at any time during or immediately preceding the claims process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (holding the current disability requirement may be satisfied by evidence of the disability shortly before the claim is filed).
Therefore, because the Veteran does not have a current disability for VA compensation purposes, the claim must be denied.
II. Duties to Notify and Assist
When VA received a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Here, the Veteran was provided with the relevant notice and information in an August 2009 letter.
VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran’s service records, VA records, and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with a VA examination which, contained a description of the history of the disability at issue; documented and considered the relevant medical facts and principles; and recorded the relevant findings for his lung conditions. The Veteran’s February 2017 VA examination satisfied the August 2016 remand directives.
Entitlement to service connection for chronic bronchitis, claimed as respiratory condition is denied.
Veterans Law Judge, Board of Veterans’ Appeals
Department of Veterans Affairs