Citation Nr: 0811033 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 06-07 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for chronic bronchitis. 2. Entitlement to service connection for bilateral pes planus. 3. Entitlement to service connection for urethritis. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Helena M. Walker, Associate Counsel INTRODUCTION The veteran served on active duty from May 1960 to May 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the benefits sought on appeal. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran does not have chronic bronchitis. 3. The veteran had second degree bilateral pes planus, asymptomatic, upon entry into service. The pre-existing disability did not increase in severity during service. 4. The veteran does not have urethritis. CONCLUSION OF LAW 1. The criteria for entitlement to service connection for chronic bronchitis are not met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007) 2. Bilateral pes planus preexisted service and was not aggravated thereby. 38 U.S.C.A. §§ 1111, 1131, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2007). 3. The criteria for a grant of service connection for urethritis have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a veteran of the evidence necessary to substantiate his claims for benefits and that VA shall make reasonable efforts to assist a veteran in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claims. In letters dated in April 2005 and August 2005, VA notified the veteran of the information and evidence needed to substantiate and complete his service connection claims, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letters also generally advised the veteran to submit any additional information in support of his claims. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service-connection claim, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), was provided in March 2006. As such, the Board finds that VA met its duty to notify the veteran of his rights and responsibilities under the VCAA. With respect to the timing of the notice, the Board points out that the United States Court of Appeals for Veterans Claims (Court) held in Pelegrini that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the initial VCAA notices were given prior to the appealed AOJ decision, dated in October 2005. The notice in compliance with Dingess, however, was inadequate. The Court specifically stated in Pelegrini, however, that it was not requiring the voiding or nullification of any AOJ action or decision if adequate notice was not given prior to the appealed decision, only finding that appellants are entitled to VCAA-content-complying notice. Thus, the timing of the notice in this matter does not nullify the rating action upon which this appeal is based. Because proper notice was provided in March 2006 and a Supplemental Statement of the Case was issued subsequent to that notice in December 2006, the Board finds that notice is pre-decisional as per Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence and by affording him the opportunity to give testimony before an RO hearing officer and/or the Board even though he declined to do so. VA is not required to schedule the veteran for a physical examination because the evidence does not meet the criteria set forth in 38 C.F.R. § 3.159(c)(4). Specifically, there is no credible evidence of an event, injury, or disease in service upon which a current disability may be based regarding his claim of service connection for bilateral pes planus. A physical examination is likewise not required for the veteran's claims of service connection for chronic bronchitis and urethritis as there is no evidence current diagnoses of the claimed disabilities. Further, there is no competent lay evidence to support any currently claimed disabilities. As such, the Board will not remand this case for a medical examination. It appears that all known and available records relevant to the issue here on appeal have been obtained and are associated with the veteran's claims file, and the veteran does not appear to contend otherwise. In fact, the veteran advised VA in April 2006 and January 2007 that he had no additional evidence to identify or to provide to substantiate his claims. Thus, the Board finds that VA has done everything reasonably possible to notify and to assist the veteran and that no further action is necessary to meet the requirements of the VCAA. Therefore, the Board now turns to the merits of the veteran's claim. The veteran seeks service connection for chronic bronchitis, bilateral pes planus and urethritis. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. See 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There must be competent evidence showing the following: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247 (1999). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled into service, except as to defects, infirmities or disorders noted at the time of the 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. See 38 U.S.C.A. § 1111. 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. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles that may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See 38 C.F.R. § 3.306(b). Chronic bronchitis The veteran seeks service connection for chronic bronchitis. He alleges that he continually experienced bronchitis since service discharge. The veteran's enlistment medical examination, dated in May 1960, is devoid of any preexisting condition related to the lungs, including chronic bronchitis. The veteran's service medical records (SMRs), however, reflect treatment for acute bronchitis. In March 1961, the veteran sought treatment for a sore throat and productive cough. His lungs revealed wheezes and rhonchi throughout. He was diagnosed as having acute bronchitis and was subsequently admitted to the hospital for treatment. In January 1962, the veteran was treated for an upper respiratory infection. The veteran's March 1963 medical examination upon service separation did not indicate any residual lung condition, including chronic bronchitis. The veteran's post-service medical records, including his Social Security Administration records, reflect no diagnosis of or treatment for chronic bronchitis. The veteran's treatment records reflect treatment for, inter alia, acute, upper respiratory infections, lung cancer and allergic rhinitis. Upon a review of the evidence, the Board finds that there is no current diagnosis of chronic bronchitis, nor was there evidence of continuity of symptomatology related to bronchitis. Absent a disease or injury incurred during service or as a consequence of a service-connected disability, the basic compensation statutes cannot be satisfied. See Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361 (Fed. Cir. 2001). Therefore, because there is no evidence of chronic bronchitis or a showing of continuity of symptomatology since the veteran's service, service connection must be denied. Bilateral pes planus The veteran contends that his bilateral pes planus was aggravated during service. The veteran's medical examination at service entrance in May 1960, noted second degree bilateral pes planus; hence, in this instance the veteran is not entitled to a presumption of soundness. Service medical records are otherwise negative for specific findings, complaints or diagnoses involving pes planus. Further, the veteran's separation medical examination made no reference to pes planus upon discharge. Therefore, it cannot reasonably be concluded that an increase in severity of the veteran's preexisting bilateral pes planus occurred in service. To that extent, there is no presumption of aggravation as to the veteran's bilateral pes planus. The record is devoid of medical evidence of the existence of a current disability involving pes planus or competent evidence of any in-service aggravation. In light of the foregoing, it is concluded that a preponderance of the evidence is against the veteran's claim of entitlement to service connection for bilateral pes planus because there is no medical evidence showing current disability notwithstanding the finding of second degree bilateral pes planus upon entry into service. Absent evidence that the veteran experienced some increase in severity of the pes planus determined to exist at the time of entry into service and/or some evidence of current disability, service connection must be denied. Urethritis The veteran seeks service connection for urethritis. It is contended that, because he underwent treatment for urethritis in service, he is entitled to service connection. The veteran's enlistment medical examination is devoid of any reference to urethritis or symptoms related to urethritis. The veteran's SMRs do reflect treatment for urethritis as associated with a diagnosis of gonorrhea. In March 1962, the veteran sought treatment complaining of dysuria and urethral discharge. He was diagnosed as having gonorrheal urethritis and treated with antibiotics. In August 1962, the veteran sought treatment for dysuria and urethral discharge. Again, he was diagnosed as having gonorrheal urethritis. Upon treatment, the veteran's urethral discharge was found to be completely resolved. In November 1962, the veteran sought treatment for the same symptoms as complained of in August 1962, and was assessed as having acute urethritis due to gonorrhea. Upon his service separation report of medical history, the veteran noted a history of in-service venereal disease. He advised that he experienced the venereal disease in March 1962 with a reoccurrence and again in August 1962. The veteran noted that he had no reoccurrence since his most recent treatment. The veteran's separation medical examination made no notation of any chronic urethral disability upon the veteran's service discharge. Given the evidence as outlined above, the Board finds that the veteran is not currently diagnosed as having urethritis, nor is there evidence of continuity of symptomatology related to urethritis since service discharge. As noted above and pursuant to Sanchez-Benitez, absent a disease or injury incurred during service or as a consequence of a service- connected disability, the basic compensation statutes cannot be satisfied. Therefore, because there is no evidence of urethritis or a showing of continuity of symptomatology since the veteran's service, service connection must be denied. (CONTINUED ON NEXT PAGE) ORDER Service connection for chronic bronchitis is denied. Service connection for bilateral pes planus is denied. Service connection for urethritis is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs