Citation Nr: 1048302 Decision Date: 12/29/10 Archive Date: 01/03/11 DOCKET NO. 08-23 593 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for chronic recurring pneumonia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. T. Sprague, Associate Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps from January 2002 to March 2006. This matter comes before the Board of Veterans' Appeals (Board) from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran appeared at a Travel Board hearing in August 2010. A transcript is associated with the claims file. FINDINGS OF FACT 1. The Veteran had in-service treatment for pneumonia in 2002, 2003, and 2005, and filed his claim for service connection shortly after separation; the Veteran has been diagnosed with recurrent pneumonia, and had active bouts of the disease in 2007 which was productive of scarring. 2. There is a continuity between in-service treatment for pneumonia and the current diagnosis of the recurrent disease. CONCLUSION OF LAW Service connection for chronic recurring pneumonia is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. First, VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West 2002); 38 C.F.R. § 3.159(b) (2010). Information means non-evidentiary facts, such as the claimant's address and Social Security number or the name and address of a medical care provider who may have evidence pertinent to the claim. See 66 Fed. Reg. 45620, 45,630 (August 29, 2001); 38 C.F.R. § 3.159(a)(5) (2010). Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2010). As discussed in more detail below, sufficient evidence is of record to grant the claim for service connection for chronic recurring pneumonia. Therefore, no further development is needed with respect to this claim. Legal Criteria-Service Connection Applicable law provides that service connection will be granted if it is shown that the veteran experiences a disability resulting from an injury or disease contracted in line of duty, or for aggravation of a preexisting injury or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease 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. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Alternatively, the nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Analysis The Veteran in this case alleges that he has a chronic recurring pneumonia, and that the condition had causal origins with his active service in the U.S. Marines. The service treatment records show numerous consultations for pneumonia, with the earliest being during his recruit training in February 2002. Following this, the Veteran was treated again for pneumonia in May 2002, after having symptoms staring in late April of that year. In February 2003, the Veteran consulted with U.S. Navy medical personnel after having cough and cold-like symptoms, and he was diagnosed with community-acquired pneumonia. Lastly, the Veteran was treated in October 2005 for pneumonia. The Veteran indicated at that time that his health had deteriorated because of pneumonia, and that he intended to seek VA benefits for the condition upon his discharge from service. Following separation, the Veteran was afforded a VA "fee basis" examination in June 2006, and based on X-ray findings, no current pneumonia was found. Subsequent to this, however, the Veteran was treated in January 2007 by a private health care provider, and radiographic findings revealed a right medial lobe pneumonia. A computerized tomography (CT) scan was ordered in connection with the January 2007 treatment, and minimal areas of pulmonary parenchymal scarring were seen n the right middle lobe of the Veteran's lungs. The Veteran was afforded a second VA examination in April 2008, and recurring pneumonia was diagnosed; however, X-ray reports revealed no acute pathology and pulmonary function testing was normal. The RO, in denying the Veteran's claim, essentially determined that no current disability was present for which service connection can be granted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board cannot, however, agree with this assessment. Indeed, the Veteran had a diagnosis of pneumonia during the pendency of the claim, and had a diagnosis of recurring pneumonia in 2008, even though there was no acute pathology present. CT scan of 2007 shows minimal scarring associated with the right lobe of the lung, where an active pneumonia process was occurring at the time of examination. The Board notes the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this instance, there appear to be episodes of pneumonia flaring that are more severe in 2007 than in subsequent examinations; however, given the diagnosis of recurring pneumonia as well as the evidence of scarring, it is clear that the Veteran experiences a chronic pneumonia condition which flares in severity at certain times. Thus, there is never an apparent complete resolution of the disease (even though acute symptoms resolve), and the Board can safely conclude that a chronic condition of recurring pneumonia, with lung scarring, is present in the Veteran. Regarding a nexus between current chronic recurring pneumonia and service, the Board notes that there is no opinion of record addressing etiology. This is, however, unnecessary in the current case. The Veteran separated from the Marine Corps in March 2006, and filed his claim very shortly after separation. He had numerous treatments for recurring pneumonia in service, and has had a need for treatment shortly following service and during the pendency of the claim. Essentially, there is a continuity between the Veteran's in-service diagnoses of pneumonia made in 2002, 2003, and 2005, and his bouts of pneumonia in 2007 (with diagnosis of recurrent pneumonia made in 2008). Given the relatively consistent presence of the disease from service to the present, albeit with varying degrees of symptom severity, there is ample evidence to allow the claim for service connection based on a continuity of symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999). As such, the claim for service connection is granted. ORDER Entitlement to service connection for chronic recurring pneumonia is granted. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs