Citation Nr: 1311944 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 09-50 015 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for shortness of breath, to include as due to an undiagnosed illness or a medically unexplained multi-symptom illness, or as secondary to a thyroid disorder. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1993 to July 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia that denied service connection for shortness of breath. In July 2011 the Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing from the RO. A transcript of her testimony is of record. In March 2012, the Board remanded the case for additional development, to include a VA examination. The issue now returns to the Board. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the March 2012 remand instructions by obtaining the requested VA examination, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The issue of entitlement to service connection for a skin disorder was also remanded in March 2012. In a December 2012 rating decision, the AOJ granted service connection for a skin disorder. As such is a complete grant of the benefit sought on appeal, that issue is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). FINDING OF FACT The Veteran has not been diagnosed with any disorders manifested by shortness of breath, and no objective evidence of impairment related to the Veteran's reported respiratory symptomatology has been clinically observed during this appeal. CONCLUSION OF LAW The criteria for service connection for disorder manifested by shortness of breath, to include as secondary to an undiagnosed illness or to a thyroid disorder, have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The VA has a duty to provide notification to the Veteran with to respect establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). Regarding the Veteran's service connection claims for a respiratory disorder manifested by shortness of breath, VA's notice requirements were satisfied by a letter issued in August 2008, prior to the initial adjudication of her claim in March 2009. That letter apprised the Veteran of the criteria for establishing service connection; the evidence she was responsible for obtaining and the evidence VA would obtain on her behalf; and the methods by which VA determines disability ratings and effective dates. The RO/AMC subsequently readjudicated her claims, as reflected by the December 2010 statement of the case and the December 2012 supplemental statement of the case. Therefore, any defect with regard to the manner, content, or timing of the notice provided has been rendered harmless. Regarding VA's duty to assist, the Veteran's service treatment records, VA treatment records, and reasonably identified private treatment records have been obtained. The Veteran also testified at a Board hearing conducted before the undersigned Veterans Law Judge, at which time she indicated that, aside from private records she would be submitting after the hearing, all relevant medical records had been obtained by VA. Following the hearing, the Veteran submitted additional private records. Furthermore, the Veteran was provided with multiple relevant VA examinations during the instant rating period, and the Board finds that the aspects of these examinations relating to the claims dispositively addressed in this appeal are sufficient for adjudicatory purposes. Specifically, the examination reports reflect comprehensive clinical findings, and the examiners' conclusions that the Veteran does not have any respiratory disorder that could be related to her claimed shortness of breath are unequivocal and predicated on an accurate review of the record. With respect to the Veteran's hearing before the undersigned Veterans Law Judge (VLJ), in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not note the bases of the prior determinations or the elements that were lacking to substantiate the Veteran's claim. The VLJ asked specific questions, however, directed at identifying whether the Veteran had a diagnosis or symptoms meeting the criteria for service connection. The VLJ further sought to identify any pertinent evidence not currently associated with the claims. Moreover, the Veteran volunteered her history of symptoms. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim(s), and the Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim decided in this appeal. As VA's duties to notify and assist have been met with regard to the aforementioned claim, there is no prejudice to the Veteran in adjudicating her appeal. Service Connection Claim Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). A disability that is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet App. 439 (1995). Because the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may also be established under 38 C.F.R. § 3.317. Under that section, 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. For disability due to undiagnosed illness and medically unexplained chronic multi-symptom illness, the disability must have been manifest either during active military service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2016. See 76 Fed. Reg. 81834 (Dec. 29, 2011) (to be codified at 38 C.F.R. § 3.317(a)(1)). For purposes of 38 C.F.R. § 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.A 1117(d) warrants a presumption of service connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of certain illnesses. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A medically unexplained chronic multi-symptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi-symptom illness. 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)(ii). Functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. Specific functional gastrointestinal disorders include, but are not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia. These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing. Diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require symptom onset at least 6 months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least 3 months prior to diagnosis. 38 C.F.R. § 3.317 (a)(2)(i)(B)(3). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). 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). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). When the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. Gilbert; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). With regard to the Veteran's claim seeking service connection for a disorder manifested by shortness of breath, the Board notes that throughout the course of the her appeal, the Veteran has not been diagnosed with any disease or disability that is manifested by that reported symptom. Specifically, the Veteran's post-service VA treatment records fail to reflect a diagnosis related to her claimed shortness of breath, and the multiple VA examinations afforded to the Veteran during the pendency of her appeal have also failed to produce any related diagnosis. As outlined above, generally, the threshold requirement for establishing service connection is a diagnosis related to the claimed condition. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, as the Veteran had service in the Persian Gulf War, the provisions of 38 C.F.R. § 3.317 are applicable, and if the provisions of this regulation are met, the Veteran may establish entitlement to service connection for her claimed disorder as a manifestation of Gulf War-related undiagnosed illnesses. However, in order to establish the presence of chronic undiagnosed illness for which service connection may be granted pursuant to 38 C.F.R. § 3.317, it is not sufficient that the Veteran merely reports continuous related symptomatology. Rather, there must be "objective indications of chronic disability" that include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. However, no such objective evidence of the Veteran's reported symptomatology has been clinically observed during the instant rating period. Initially, VA and private treatment records are negative for evidence of shortness of breath. During an April 2012 VA examination, the Veteran reported allergy symptoms, for which she was being treated, but "really denie[d] any sob symptoms." A chest x-ray was normal, and the Veteran was unable to adequately complete pulmonary function testing due to claustrophobia. The examiner concluded that the Veteran did not have any current respiratory disability at the time of the examination. The examiner further noted that the Veteran's symptoms consisted mainly of allergy/sinus congestion, and that she had no symptoms of lower respiratory problems such as shortness of breath and cough. The Veteran was then afforded a second VA examination in December 2012, during which physical examination was within normal limits except for a skin rash. The examiner specifically concluded that there was no diagnosed illness for which no etiology is established, nor were there additional signs or symptoms not addressed. The examiner found that the Veteran did not have, nor had she ever been diagnosed with, a respiratory condition. Following pulmonary function testing, it was determined that the Veteran did not have any respiratory condition that would cause shortness of breath. Thus, there is no objective evidence of disability related to the Veteran's reported symptomatology. The Board acknowledges its consideration of the Veteran's competent reports of experiencing recurring shortness of breath. However, her medical records do not support that contention. The Board points out that VA medical records and private medical records are generally negative for complaints of shortness of breath. What is more, VA treatment notes dated in November 2006, April 2007, October 2007, April 2008, and November 2008; a September 2008 VA thyroid examination; and, private medical records dated in May 2009, March 2010, and January 2011, show affirmative denials of respiratory problems, including shortness of breath, and/or specific findings of normal and regular respiration on physical examination. Even more probative is the Veteran's report during her April 2012 VA examination that she does not really experience shortness of breath. To the extent that the April 2012 VA examiner discussed the Veteran's claimed shortness of breath in conjunction with allergic rhinitis, the Board notes that during November 2008 and August 2009 VA treatment for allergies, the Veteran did not report shortness of breath, and was noted to have easy and regular respiration and lungs that were clear. Additionally, to the extent that the Veteran has alleged shortness of breath associated with her thyroid disorder, the Board again points to the affirmative denials of respiratory problems, including during a September 2008 VA thyroid examination. Accordingly, the Board finds that any statements regarding recurring or chronic shortness of breath lack credibility. The Board has also considered the lay statements submitted by the Veteran's friend in September 2008 and November 2009, relating to the Veteran's shortness of breath. Significantly, those statements do not support the presence of a chronic condition manifested by shortness of breath, but rather, suggest that the Veteran occasionally experiences shortness of breath associated with her weight. The Board also points out that in neither of the statements does the individual actually assert that she has witnessed recurring shortness of breath or a chronic respiratory condition; instead, she states that the Veteran's weight causes fatigue and shortness of breath. Accordingly, the Board finds that those statements cannot serve as a basis for awarding service connection for an undiagnosed illness related to the Veteran's claimed shortness of breath, as the individual's statements do not reflect objective indications of a disability manifested by shortness of breath. Thus, the evidence of record fails to reflect a basis for awarding service connection for the Veteran's claimed shortness of breath on a basis of direct service connection, secondary service connection, or as a manifestation of an undiagnosed illness or chronic multi-symptom illness. Accordingly, the Veteran's claim is denied. ORDER Service connection for a disorder manifested by shortness of breath, to include as a manifestation of an undiagnosed illness, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs