Citation Nr: 1031086 Decision Date: 08/18/10 Archive Date: 08/24/10 DOCKET NO. 00-05 349 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for chronic bronchitis with obstructive disease. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. McDonald, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1980 to February 1990. He later served in the Puerto Rico National Guard with additional periods of active and inactive duty for training prior to May 2004. In particular, the Veteran's service personnel records confirm that he served in an active duty for training capacity from October 1 to October 14, 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico which denied entitlement to the benefit currently sought on appeal. This appeal was subject to prior remands by the Board in December 2000, March 2006, and January 2008 to ensure compliance with due process requirements. The evidentiary record has been adequately developed in substantial compliance with all prior Board remand instructions and has now been returned to the Board for further appellate review. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in San Juan, Puerto Rico in June 2007 to present testimony on the issue on appeal. The hearing transcript has been associated with the claims file. FINDING OF FACT The Veteran's chronic bronchitis with obstructive disease is at least as likely as not medically related to pneumonia incurred while serving in an active duty for training capacity in October 1995. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, chronic bronchitis with obstructive disease was incurred in or aggravated by the Veteran's active military service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.6, 3.102, 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2009). As will be discussed in full below, the Board finds that service connection for chronic bronchitis with obstructive disease is warranted; therefore, a full discussion of whether VA met these duties is not needed as no prejudice can flow to the Veteran from any notice or assistance error based upon the full grant of the benefit sought. It is important to note, however, that the Veteran has been notified of the process by which an initial disability rating and effective date would be established should service connection be granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); VA correspondence to Veteran, August 2007. Service Connection The Veteran seeks service connection for chronic bronchitis which he contends is attributable to his military service. In order to establish direct service connection, three elements must be established. There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (holding that the type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed). It is also important to note that for service connection to be established, disability must be incurred or aggravated in the line of duty during active military, naval, or air service. 38 C.F.R. § 3.1(k). To this end, and as related to the present case, the term "active military service" includes active duty, as well as any period of active duty for training (ACDUTRA or ADT) in which a veteran was disabled from disease or injury incurred or aggravated in line of duty. 38 C.F.R. § 3.6. Active duty for training explicitly includes that performed by members of the National Guard of any State. § 3.6(c)(3). In this case, official personnel records confirm that the Veteran was ordered to an active duty for training capacity from October 1, 1995 to October 14, 1995 at Camp Grafton, North Dakota in order to attend an Engineer School qualification course. See Military orders, September 1995; Engineer school certificate, October 1995. A private hospital treatment record dated October 19, 1995 reflects that the Veteran was diagnosed with pneumonia as of that date, and had been symptomatic with fever and general malaise since approximately five days prior, i.e. on or about the date of termination of the Veteran's ACDUTRA service period. Subsequently, the Veteran was diagnosed with acute asthmatic bronchitis. See, e.g., Private treatment record, December 1995. In October 2009, a VA medical examiner was asked to opine whether the Veteran's current respiratory problems were related to this bout of pneumonia in October 1995. The examiner stated "there is no doubt he had a moderately severe pneumonia at that time" with subsequent episodes of asthmatic bronchitis. VA examination, October 2009. He opined "I do feel that he definitely had reactive airways triggered by the pneumonia...in October 1995.... He has chronic bronchitis and at least moderate obstructive disease from this service related condition...." Id. This finding is generally consistent with that of a private treatment provider in April 1998 who found that the Veteran's hyper reactive airway disease (bronchial asthma) was related to the October 1995 episode of pneumonia. Of note, the VA examiner further stated that although this Veteran presently has mild obstructive sleep apnea, it is less likely than not related to service as it had onset recently, in or around 2007, and the Veteran denies any symptoms of sleep apnea existed during active duty or National Guard service. Id. Although the medical evidence of record reflects slightly varying terminology for the Veteran's currently diagnosed respiratory disability, the Board finds sufficient evidence of a current diagnosis of chronic bronchitis with obstructive disease. VA examination, October 2009. The record further reflects that the Veteran incurred pneumonia during a period of active duty for training in October 1995, and two medical nexus opinions find that the Veteran's current chronic bronchitis with obstructive disease is at least as likely as not related to the in-service episode of pneumonia. Based upon the foregoing, when any reasonable doubt is resolved in favor of the Veteran, service connection for chronic bronchitis with obstructive disease is warranted. 38 C.F.R. §§ 3.102, 3.303. ORDER Service connection for chronic bronchitis with obstructive disease is granted. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs