Citation Nr: 1331891 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 12-15 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for chronic bronchitis. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1970 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. A notice of disagreement was filed in November 2010, a statement of the case was issued in April 2012, and a substantive appeal was received in June 2012. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The Veteran's chronic bronchitis was not manifested during active service and is not otherwise causally related such service. CONCLUSION OF LAW Chronic bronchitis was not incurred in or aggravated during active service. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Such notice must be provided to a claimant before the agency of original jurisdiction's initial unfavorable decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO provided VCAA notice to the Veteran in a December 2009 letter prior to its March 2010 rating decision. The letter informed the Veteran of the information necessary to prove entitlement to service connection, the types of evidence VA would assist him in obtaining, and his responsibility to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). Accordingly, the requirements the Court set out in Pelegrini have been satisfied. Further, the notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The December 2009 letter provided notice of the types of information needed to substantiate the Veteran's claim. The letter also gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). As such, no further development is required with respect to the duty to notify under 38 C.F.R. § 3.159(b). Furthermore, the duty to assist has also been satisfied. 38 U.S.C. § 5103A(a)(1); id. at § 5103A(c)(1); 38 C.F.R. § 3.159(c)(2). The Veteran's service treatment records and VA medical records have been obtained. The Board acknowledges the Veteran's contention that perhaps records from Lackland Air Base have not been obtained. However, the claims file includes the Veteran's service treatment records which include records from Lackland. There is no indication from these records that they may not be complete. Similarly, the Board finds that the Veteran has not met the criteria to trigger VA's duty to provide a medical examination under McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). An examination is required when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. Here, the Veteran does have a current diagnosis of bronchitis. However, for reasons explained later in this decision, there is no credible indication that his current bronchitis is causally related to an event, injury or disease during service. Thus, the Board finds that the record as it stands includes adequate competent evidence to support a decision on the merits, and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). Laws and Regulations The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. 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. 38 C.F.R. § 3.303(b). Service connection may also 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). Analysis With regard to the threshold question of current disability, the Board finds that the VA records showing treatment for bronchitis from 2007 through 2011 are sufficient to show current chronic disability. The remaining question is whether his current chronic bronchitis is causally related to his active duty service which ended in October 1971. The Veteran's service treatment records do reveal an isolated instance of upper respiratory infection in February 1971. There are also records showing chest congestion related to flu symptoms in September 1971. On separation examination in September 1971, the Veteran expressly denied asthma, shortness of breath, pain or pressure in the chest, and chronic and frequent colds. His lungs were clinically evaluated as normal; chest x-ray was negative. In short, the service treatment records do not show chronic bronchitis. Turning to the post-service evidence, the Veteran filed a claim of service connection for back and nerve disorders in 1987; he did not include bronchitis. On VA examination in September 1987, the Veteran's respiratory system was reported as negative. VA outpatient records dated in 1987 show complaints and treatment for several problems, but there is no mention of any respiratory complaints or abnormal findings. The veteran filed a claim based on back and eye disabilities in 1992; he did not reference bronchitis. He filed a claim of service connection for hypertension and heart disability in 2001; he did not reference bronchitis. After reviewing the evidence, the Board is unable to find that any implicit assertion by the Veteran that his bronchitis began during service and has continued to the present time to be credible. The Veteran's actions over the years have been inconsistent with such an assertion. He expressly denied any respiratory problems at the time of his separation examination. Moreover, he failed to include bronchitis in his earlier service connection claims. It is reasonable to believe that he would have included bronchitis if he in fact believed that he had chronic bronchitis which was related to service. The record simply does not include credible evidence from the Veteran regarding onset of chronic bronchitis during service. The Board also notes some mental health records over the years include comments that the Veteran is not a reliable historian. Moreover, the objective medical evidence does not show bronchitis for many years after service. In fact, his respiratory system was clinically evaluated as normal on separation examination in 1971 and as negative on VA examination in 1987. Based on a review of the entire record, the Board is compelled to find that the preponderance of the evidence is against a finding that the Veteran's bronchitis was incurred in or aggravated by active service. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs