Citation Nr: 1304056 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 05-19 942 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for breathing problems, claimed as shortness of breath/sinus bradycardia, including under the provisions of 38 C.F.R. § 3.317. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from August 1987 to September 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The case was brought before the Board in April 2009 and September 2011, at which times the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim, to include affording him a VA examination. The requested development having been completed, the case is once again before the Board for appellate consideration of the issue on appeal. The Board, in the September 2011 remand, also remanded issues seeking entitlement to service connection for bilateral knee disabilities. Service connection for these disabilities was granted in a November 2012 rating decision. Thus, the issues are no longer before the Board here. FINDING OF FACT 1. The Veteran's complaint of difficulty breathing is not due to an undiagnosed disorder and has not been medically attributed to his military service. 2. None of the Veteran's known cardiovascular and respiratory diagnoses, such as coronary artery disease (CAD) and allergic rhinitis, have been medically attributed to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for breathing problems, claimed as shortness of breath/sinus bradycardia, including under the provisions of 38 C.F.R. § 3.317, have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Assist and Notify The VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met in this case by a preadjudication letter sent to the Veteran in May 2003 and subsequent letters sent in March 2006, June 2009, and October 2011. Those letters advised the Veteran of the information necessary to substantiate his claim, and of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). The 2006, 2009, and 2011 letters also explained how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thereafter, the claim was readjudicated by the RO in Supplemental Statements of the Case (SSOCs), most recently in October 2012. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The RO provided the Veteran an appropriate VA examination in December 2011. The examination is adequate because it is based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder and appropriate diagnostic tests. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). Thus, the Board finds that VA has satisfied the duty to assist the Veteran and the Board may proceed to consider the merits of the claim. Service Connection (Breathing Disorder) Generally, in order to prevail on the issue of service connection the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Board notes the Veteran's military service coincides in part with the Persian Gulf War and his military records confirm his overseas service in Southwest Asia, to include Saudi Arabia and Kuwait. A presumption exists for veterans who serve in the Persian Gulf, such as the case here, who exhibit objective indications of a qualifying chronic disability if that disability (a) became manifest either during active 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, and (b) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317 (2010) (emphasis added). The signs or symptoms covered under this presumption include those affecting the cardiovascular and/or respiratory systems. See 38 C.F.R. § 3.317 (b) (emphasis added). In this case, as will be explained below, the presumption is inapplicable here because the Veteran has been diagnosed with known clinical diagnoses. The Veteran's service treatment records are silent as to any complaints, treatment or diagnoses related to trouble breathing. On his January 1987 entrance examination, however, the Veteran self-reported pain in the chest after playing basketball and an October 1986 history of a "bruised stomach." No diagnosis was rendered at that time. In July 1991, the Veteran was treated in the ER for complaints of dizziness, lightheadedness, cramps, and diarrhea. His lungs were clear and he was ultimately diagnosed with enteritis/dehydration. The Veteran declined an August 1992 separation examination, but the Board notes he was afforded a VA examination in October 1992 (for unrelated conditions). At that time, the examiner noted normal cardiovascular system, normal blood pressure readings, and normal respiratory system. The Veteran did not have any complaints related to breathing. In April 1993, the Veteran claimed "exposure to toxic fumes" in Kuwait. He did not specifically identify symptoms related to this exposure and no specific diagnosis was rendered. The Veteran underwent a Persian Gulf War Protocol examination in April 2003 where the examiner again noted the "exposure to toxic fumes," but did not otherwise indicate symptoms or diagnoses related to this exposure. Indeed, the Veteran did not complain of trouble breathing at that time. The Veteran was afforded a VA examination in October 2003, where the examiner noted an August 2003 EKG showing "bradycardia," but did not otherwise proffer an opinion with regard to etiology. The Veteran did not complain of breathing problems at that time. Rather, he complained of sleeping problems, which the examiner related to the Veteran's divorce. Subsequent records also related the Veteran's sleeping problems to his diagnosed depression. The Board finds noteworthy that the Veteran has already been denied service connection for sleep problems and dizziness/light-headedness in a prior September 2011 Board decision. The decision was not appealed and is now final. In August 2004, the Veteran's private physician, Dr. S., issued a statement mainly related to other symptoms and diagnoses. Within the statement, however, Dr. S. noted the Veteran was a non-smoker with no cardiovascular symptomatology and no respiratory symptomatology. Dr. S. also indicated a familial history of asthma, hypertension, and congestive heart failure. In June 2009 the Veteran was treated for shortness of breath and chest pain. At that time he was diagnosed with hypertension, coronary artery disease (CAD), and chronic sinusitis. The Veteran was most recently afforded a VA examination in December 2011 to ascertain whether the Veteran's complaints of shortness of breath/breathing problems could be associated with an undiagnosed illness incurred in Southwest Asia or, in the alternative, could be directly related to in-service inhalation of toxic fumes. The examiner clearly outlined the Veteran's military and post-military medical history. On examination, the Veteran had clear lungs, normal chest x-ray, but arrthymia on EKG. The examiner rendered diagnoses of CAD, since June 2009, and allergic rhinitis, since October 2008. With regard to etiology, the examiner reviewed the claims folder, physical examination findings, and service treatment records. With regard to the known diagnoses rendered, the examiner opined that the service treatment records do not document in-service complaints of chest pain, which can now be related to the Veteran's present symptomatic CAD. CAD, moreover, is not a condition conceded in Gulf War veterans. As such, the examiner concluded that CAD is not likely caused by his military service. Similarly, the examiner did not find it likely that the Veteran's allergic rhinitis was caused by his military service. The examiner further found no "objectively documented pulmonary condition which might be the result of environmental exposures in SW Asia or elsewhere during military service." The Board finds the VA examiner's opinion persuasive. It is based on a thorough examination, a complete review of the claims folder, consideration of the Veteran's description of toxic fumes inhalation, and the examiner's clinical expertise. Also compelling, no medical professional has ever related the Veteran's complaints of trouble breathing/known diagnoses to any incident of his military service. The Board has considered the Veteran's description of in-service toxic fumes and concedes in-service exposure to toxic fumes is likely given the circumstances of his service. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise). Here, however, no medical professional has ever linked the Veteran's CAD, allergic rhinitis, or any other pulmonary condition to any incident of his military service. Indeed, there is evidence to the contrary. In short, the Veteran served in Southwest Asia during the Persian Gulf War and was likely exposed to "toxic fumes." The medical evidence, however, does not objectively show a long-standing history of complaints of breathing problems. In fact, prior to 2003, the medical evidence specifically indicates "no" cardiovascular or respiratory abnormality. Thereafter, the Veteran was diagnosed with CAD, allergic rhinitis, sinus bradycardia, hypertension, and chronic sinusitis, but none of these known diagnoses have been associated with his military service. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection is not warranted. ORDER Entitlement to service connection for breathing problems, claimed as shortness of breath/sinus bradycardia, including under the provisions of 38 C.F.R. § 3.317 is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs