Citation Nr: 1242045 Decision Date: 12/10/12 Archive Date: 12/20/12 DOCKET NO. 10-02 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for a respiratory disorder, to include as a result of an undiagnosed illness. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active service from August 1983 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating action of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In September 2012, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran contends that he has a respiratory disorder that is related to his military service, to include being a result of an undiagnosed illness. See, e.g., June 2008 claim. According to the Veteran's DD 214, he had service in Southwest Asia from October 1990 to June 1991 and received the Southwest Asia Service Medal. Thus, his service in the Southwest Asia theater of operations during the Persian Gulf War is confirmed. Also, his military occupation specialty (MOS) was that of a materiel storage and handling specialist. A personnel record submitted by the Veteran shows that he assisted in the bulk breakdown of parts throughout the Kuwait Theater of Operations. The Veteran's service treatment records (STRs) are not of record. A formal finding as to the unavailability of his STRs was set forth in a February 2009 memorandum, which detailed the RO's exhaustive efforts to obtain the Veteran's STRs. In cases where records are lost or presumed lost, a heightened duty is imposed on the Board to consider the applicability of the benefit of the doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when a veteran's medical have been destroyed. Russo v. Brown, 9 Vet. App. 46 (1996). Here, the Veteran has reported having a chronic cough since service. See, e.g., September 2012 Hearing Transcript (T.) at 2. Lay statements received in September 2012 from the Veteran's sister and a friend confirm his longstanding cough since his service. The Veteran also testified that his coughing can get so severe that it causes headaches. Id. at 5. Other symptoms associated with his coughing included dry nostrils. Id. The Veteran is competent to report his symptomatology. Layno v. Brown, 6 Vet. App. 465 (1994). Also, a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board also finds the Veteran to be credible. According to post-service medical records, the Veteran was not diagnosed with a chronic respiratory disorder. Private treatment records dated in December 2001 and November 2004 reveal diagnoses of acute bronchitis, while VA treatment records reveal an upper respiratory infection in March 2005. The Veteran's VA records dated since March 2005 reveal continuous complaints of coughing. In April 2005, he reported having a cough for six months and in September 2009, he reported having periods of coughing for over a year. A record dated in November 2009 indicates that the Veteran's cough was opined to be likely due to a silent postnasal drip or gastrointestinal reflux disease. It does not appear that any medical professional has been able to attribute the Veteran's continuous cough since his service to a chronic disease. Indeed, the Veteran testified that diagnostic testing such as pulmonary function tests have all been negative. T. at 5. The Board observes that service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016. 38 U.S.C.A. § 1117 (West 2002 & Supp. 2012); 38 C.F.R. § 3.317 (2012). For purposes of section 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2). An undiagnosed illness is defined as a condition that, by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b) (emphasis added). A medically unexplained chronic multi-symptom illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. A medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2). Additionally, effective September 29, 2010, presumptive service connection is warranted with the manifestation of the following infectious diseases: (i) brucellosis, (ii) campylobacter jejuni, (iii) Coxiella burnetii (Q fever), (iv) malaria, (v) mycobacterium tuberculosis, (vi) nontyphoid salmonella, (vii) shigella, (viii) visceral leishmaniasis, and (ix) West Nile virus. 75 Fed. Reg. 59,968, 59,971 (Sept. 29, 2010); to be codified at 38 C.F.R. § 3.317. In the present appeal, the Veteran is not claiming service connection for any of those diseases. Here, the Veteran has competently and credibly reported symptoms involving his respiratory system--coughing--in addition to headaches. As discussed above, such symptoms may be manifestations of an undiagnosed illness or a medically unexplained chronic multi-symptom illness. It does not appear that the Veteran has been afforded a VA examination to determine if he has a respiratory disorder that is related to his military service, to include as a result of an undiagnosed illness. In light of his reported continuity of symptomatology since service, and as no medical professional has been able to attribute the Veteran's symptoms to a chronic disability, the Board finds that a remand is necessary to determine if the Veteran has a respiratory disorder that is related to his military service, to include as a result of an undiagnosed illness. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Further, the most recent VA treatment records from the North Hampton VA Medical Center (VAMC) in Massachusetts are dated in December 2010. Although treatment records from December 2011 have been obtained, such records only apply to a psychiatric hospitalization. The Veteran also testified having diagnostic testing done at the VAMC in West Haven, Connecticut, although the dates were not provided. T. at 3. On remand, records of any VA respiratory treatment that he received since December 2010, and any diagnostic testing done at the VAMC in West Haven, Connecticut should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). As he has also indicated having had testing done at Yale University and being treated at a combat trauma hospital in Hudson Valley, New York in 2011, those records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure records of post-service respiratory treatment that the Veteran has recently received. The Board is particularly interested in records of such treatment that the Veteran may have received from the North Hampton VAMC in Massachusetts since December 2010; any relevant treatment, to include diagnostic tests, from the VAMC in New Haven, Connecticut; any pertinent treatment, to include diagnostic tests from Yale University; and treatment from a combat trauma hospital in Hudson Valley, New York in 2011. If any such records identified by the Veteran are not available, he should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents, should be made in the claims file. All such available reports should be associated with the claims folder. 2. Thereafter, schedule the Veteran for an appropriate VA examination to determine the nature, extent, and etiology of any respiratory disorder that he may have. The claims file, including a copy of this Remand, must be made available to the examiner for review in connection with the examination, and a notation that this review has taken place should be made in the examination report. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination reports to be associated with the claims file. The examiner is requested to obtain a detailed history of the Veteran's symptoms as observed by him and others since service, review the record, and offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that any diagnosed respiratory disorder shown on examination had its clinical onset in service or is otherwise related to service. If the Veteran's complaints of coughing, headaches, and dry nostrils cannot be attributed to any known clinical diagnosis, the examiner should indicate whether such symptomatology represents an objective indication of chronic disability resulting from an undiagnosed illness related to the Veteran's Persian Gulf War service, or a medically unexplained chronic multi-symptom illness. In answering these questions, the examiner should accept the Veteran's reports of a continuity of symptomatology since active duty. A complete rationale should be provided for all opinions expressed. If the examiner finds that he/she must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices. 3. Ensure that the examination report complies with (and answers the questions posed in) this Remand. If the report is insufficient, it should be returned to the examiner for corrective action, as appropriate. 4. Then, readjudicate the issue on appeal. If the benefit remains denied, the Veteran should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). He has the right to submit additional evidence and argument on the matter that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).