Citation Nr: 0815164 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 04-17 566 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for bronchitis. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Associate Counsel INTRODUCTION The veteran had active service from June 1958 to March 1962. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2002 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The veteran was afforded a personal hearing in front of the RO in January 2004. A transcript of the hearing has been associated with the claim file. In correspondence received in May 2004, the veteran withdrew his request for a Board hearing. In October 2006, the Board remanded the case for further evidentiary development. In correspondence received in March 2008, the veteran terminated his Power of Attorney to the Texas Veterans Commission. FINDING OF FACT Chronic bronchitis is attributable to service. CONCLUSION OF LAW Bronchitis was incurred in service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007) REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran's Claims Assistance Act of 2000 (VCAA), is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. The law eliminates the concept of a well-grounded claim, and redefines the obligations of the VA with respect to the duty to assist claimants in the development of their claims. First, the VA has a duty to notify the veteran and representative, if represented, of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West 2002). VA must also inform the claimant which evidence VA will seek to provide and which evidence the claimant is to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). Second, the VA has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West 2002). In the instant case, the veteran's claim is being granted. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial. Legal Criteria and Analysis Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002). Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303 (2007). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The veteran has filed an appeal for service connection for bronchitis. After a careful review of the evidence of record the Board finds that the evidence is in favor of service connection. At the outset the Board notes that the VA has scheduled examinations and requested medical opinions. The reports are, in part, inadequate or contain significant factual errors. However, the Board shall not remand for another determination. Medical determinations that are factually inadequate are accorded little probative value. The AOJ accepted a factually inaccurate medical report (rather than returning it again). The Board shall enter a decision that is supported by facts. In this case, there is inadequate evidence upon which to conclude that bronchitis clearly and unmistakably preexisted service. That was the opinion of a VA examiner in a January 2008 addendum to the VA examination of March 2005 and the Board accepts that determination. During service, he was seen, treated and hospitalized for bronchitis. The cause (including smoking) was not clearly established. Since service, the diagnosis of bronchitis has been continued, as noted in another VA examination report. More recently, a VA examiner noted the possibility of recurrent bronchitis. In view of the in-service and post-service findings, the Board is unable to establish that the post-service bronchitis is unrelated to the in-service bronchitis. Rather, the evidence points to a subsequent manifestation of the same in-service disease process. Accordingly, service connection for bronchitis is granted. The Board is fully aware that following extensive hospitalization the diagnosis was changed. However, such fact does not establish that the veteran did not have bronchitis. It was a diagnosis of bronchitis that initially resulted in the hospitalization. ORDER Service connection for bronchitis is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs