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