Citation Nr: 1753845 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 09-11 306 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to service connection for bronchitis. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD P.S. McLeod, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1973 to March 1978 and was in the Wyoming Air National Guard from July 1997 to October 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs' (VA) Regional Office (RO) in Cheyenne, Wyoming. In March 2014, the case was remanded for a Board hearing, which was conducted by videoconference in October 2014. The Veteran and his spouse testified, and a transcript of the hearing is associated with the Veteran's claims folder. In a January 2015 decision, the Board denied the claim for entitlement to service connection for bronchitis. The Veteran thereafter appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In a November 2015 Order, the Court granted a Joint Motion for Remand, vacated a portion of the January 2015 Board decision, and remanded the matter for readjudication consistent with the motion. In May 2016 and May 2017 the Board remanded the claim for further development. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's bronchitis is attributable to his service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, bronchitis was incurred in active duty service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also 492 F.3d at 1376-77. The appellant contends that he has chronic bronchitis etiologically related to service. The Veteran's service treatment records (STRs) reflect that the Veteran received in-service treatment for bronchitis. Post-service VA treatment records indicate that the Veteran was treated in June 1991 and April 1996 for acute bronchitis, characterized as "chemical." X-ray imaging of the Veteran's chest in June 1996 revealed periobronchial cuffing which a physician characterized as possibly representing "some bronchitis. Bronchitis was mentioned in VA treatment notes in February 1997 and in multiple treatments between July 2000 and September 2003, where it was characterized as "some chronic bronchitis." January 2002 records from the Dundy County Hospital note that the Veteran was treated for laryngotracheal bronchitis. February 2006 treatment records from the Wyoming Medical Center included "chronic bronchitis" in the past medical history. September 2006 VA treatment records include a diagnosis of "acute bronchitis" and listed "chronic bronchitis in the Veteran's medical history in an addendum note. October 2006 records from Memorial Hospital of Sheridan County include a diagnosis of "acute bronchitis." November 2006 VA treatment notes list "chronic bronchitis" under the Veteran's "other medical problems." October 2008 East Morgan County Hospital treatment records include "bronchitis" in the medical history section. In January 2013 the Veteran underwent a VA respiratory condition examination. The VA examiner opined that it was "as likely as not that his upper respiratory conditions particularly bronchitis are caused by his service exposure to various fumes and gases." As rationale the examiner cited the Veteran's service treatment for bronchitis and noted that it was most likely due to the exposure mentioned, though confounded with his, at that time, "newly acquired habit of cigarette smoking." In October 2014 the Veteran testified before the undersigned VLJ. Regarding his bronchitis service connection claim the Veteran stated that he believed his in-service and post-service bronchitis issues were due to his exposure, on the flight line, to jet fumes, chemicals, solvents, hydraulic fluid, and jet fuel. The Veteran also testified that his DD-214 did not reflect his primary military occupation specialty (MOS) as an Aerospace Ground Equipment (AGE) Repairman. The Veteran indicated that he cross-trained as a clerk after he was taken off the flight line, which is the MOS reflected on his DD-214. Concurrent with his testimony, the Veteran submitted articles detailing the duties associated with the AGE repairman MOS which included disposable of hazardous waste. A review of the Veteran's military personnel files indicates that the Veteran did perform AGE duties as documented by multiple official performance reviews. In December 2016 the Veteran underwent a VA examination for bronchitis. The examiner rendered an opinion that the Veteran's claimed bronchitis was less likely than not incurred in or caused by claimed in-service injury, event, or illness. As rationale the examiner provided that the Veteran had mild chronic obstructive pulmonary disorder (COPD) but did not have chronic bronchitis. In June 2017 the Veteran's claim was returned to the previous VA examiner for an addendum opinion. The examiner reiterated that the Veteran does not have a current diagnosis of chronic bronchitis. The examiner explained that the Veteran's in-service bronchitis was "acute" bronchitis "which is different from chronic bronchitis." The examiner further provided that "90 [percent] of the time" the Veteran's treatments since 2007 were for "acute exacerbation of COPD." The examiner concluded that "the current acute exacerbations have no relation or correlation to the acute bronchitis...in the military." The Board finds that entitlement to service connection for bronchitis is warranted. The Veteran's post-service treatment records document treatment, impressions, and diagnoses of bronchitis. These records include characterizations of the diagnosed bronchitis as both acute and chronic. The record also contains conflicting VA opinions. The January 2013 VA examiner's opinion found a current diagnosis of chronic bronchitis and based a nexus opinion on the Veteran's claimed chemical and fume exposure in service. The Veteran is competent to state what he experienced and the Board finds that his military personnel record provides evidence of occupational duties that support his contentions. Both the negative December 2016 examination opinion and June 2017 addendum are based on the premise that the Veteran does not have diagnosed chronic bronchitis. As stated above this is disputed by the record, which does include diagnoses of chronic bronchitis, albeit mixed with acute bronchitis. Weighing the evidence as a whole, and affording the Veteran the benefit of the doubt, the Board finds that the evidence is at least in equipoise and therefore service connection for bronchitis is warranted. ORDER Entitlement to service connection for bronchitis is granted ____________________________________________ M.E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs