Citation Nr: 1330280 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 07-34 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUES 1. Entitlement to service connection for a respiratory disability (including asthma), to include as due to an undiagnosed illness. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1990 to May 1991 and on active duty for training from February 1987 to June 1987. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Fort Harrison, Montana Department of Veterans Affairs (VA) Regional Office (RO). In September 2009, a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In March 2010 and in November 2011, the case was remanded for additional development. The Board notes that a claim for service connection for asthma was previously denied by a final May 1998 rating decision. However, subsequent to that determination, additional service treatment records (STRs) were received. Thus, in accordance with 38 C.F.R. § 3.156(c)(1), the current claim for a respiratory disability (including asthma) will be reviewed only on a de novo basis. The Veteran had also initiated appeals of denials of service connection for the following: (1) a disorder manifested by pain behind the right eye and headaches; (2) a disorder manifested by shivering; (3) a disorder manifested by dizziness; (4) a disorder manifested by muscle pain; (5) a disorder manifested by dehydration; (6) a dental disorder; (7) chronic fatigue syndrome (CFS) or a disorder manifested by fatigue and weakness; and (8) a urinary tract disorder, to include a disorder manifested by urinary frequency. A March 2010 Board decision denied service connection for issues 1 through 6, and a November 2011 Board decision denied service connection for issues 7 and 8. Consequently, those matters are not before the Board. The Board notes that it has reviewed both the Veteran's physical claims file and Virtual VA to ensure that the complete record is considered. The issue of entitlement to a TDIU rating is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if action on his part is required. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War. 2. The Veteran is not shown to have a chronic respiratory disability. CONCLUSION OF LAW Service connection for a respiratory disability (including asthma), to include as due to an undiagnosed illness, is not warranted. 38 U.S.C.A. §§ 1110, 1117, 1118, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA 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/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. May 2006 and February 2007 letters explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. These letters also informed the Veteran of disability rating and effective date criteria. Most recently, a December 2012 supplemental statement of the case (SSOC) readjudicated the matter after the Veteran and his representative responded and further development was completed. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (VCAA timing defect may be cured by the issuance of fully compliant notification followed by readjudication of the claim); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). The Veteran has received all critical notice, and has had ample opportunity to respond/supplement the record. He has not alleged that he was prejudiced because he did not received notice of what was needed to substantiate his claim. The Board notes that at the time of the September 2009 hearing this claim was being processed as a claim to reopen. Based on receipt of additional STRs, it has evolved into one requiring de novo review. At the hearing the Veteran was advised (by virtue of the questions posed) that to substantiate the underlying claim he still needed to provide evidence of a nexus between any current asthma and his service. He has expressed awareness that a diagnosis of a chronic respiratory disability is a threshold requirement for substantiating his claim. The Veteran's STRs and postservice VA and private treatment records have been secured. The RO arranged for pertinent VA examinations in June 1994, August 1995, September 2008, May 2009, and May 2010; a VA medical opinion was also provided in December 2011. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). All of the relevant development requested by the Board's March 2010 and November 2011 remands was fully completed with regard to the issue being decided on appeal, and therefore the remand orders were fully complied with. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background, and Analysis Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 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). Service connection may be established for a chronic disability resulting from an undiagnosed illness that 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. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1)(i). Service connection may also be established for a Persian Gulf veteran who exhibits objective indications of "qualifying chronic disability," a chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or any diagnosed illness that the Secretary determines warrants a presumption of service connection. 38 U.S.C.A. § 1117. An "undiagnosed illness" is one that by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). A "qualifying chronic disability" is defined, in part, as an undiagnosed illness. 38 C.F.R. §§ 3.317(a)(2)(i)(A). Signs or symptoms involving the respiratory system (upper or lower) may be manifestations of an undiagnosed illness or a chronic multisymptom illness. 38 C.F.R. § 3.317(b)(8). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim being decided. The Veteran contends that he currently suffers from a respiratory disability (manifested by difficulty breathing, wheezing, and shortness of breath), which he alleges began in service as a result of exposure to fire smoke while serving in the Southwest Asia Theater of operations during the Persian Gulf War. The Veteran's STRs confirm that he served in the Southwest Asia Theater of operations during the Persian Gulf War. At a January 1987 Reserve duty enlistment examination, no respiratory abnormalities were noted. At his November 1990 active duty enlistment examination, no respiratory abnormalities were noted. In a November 1990 report of medical history, he reported having a history of hay fever, and also that he did not know if he had a history of asthma and shortness of breath. At his April 1991 active duty separation examination, no respiratory abnormalities were noted. On an April 1991 report of medical history, he reported that he had difficulty in breathing while running, and he reported a history of hay fever and wheezing as a child that still occurred with physical training as well as shortness of breath. In May 1991, he reported a history of "wheezing" while running in Saudi Arabia, but it was noted that he had "no problems now." Additionally, the Veteran was first noted to have a "history of asthma" in a December 1990 VA treatment record, but such history was not explained. Postservice VA and private treatment records note the Veteran's history of asthma as part of his medical problem list. On June 1994 VA Persian Gulf Registry examination, it was noted that the Veteran had a diagnosis of asthma. A June 1994 pulmonary function test (PFT) was normal, and June 1994 chest x-rays were normal. On August 1995 VA general medical examination, the examiner rendered an impression of "questionable seasonal asthma and/or bronchial asthma" based on the Veteran's complaints of shortness of breath and having asthma-type symptoms since being in the Persian Gulf. Thereafter, an August 1995 PFT was normal, and August 1995 chest x-rays were normal. Beginning with a February 1999 VA treatment record, the Veteran reported that he was not having many problems with asthma, and the asthma was noted to be "essentially in remission." At a September 2008 VA general medical examination, the Veteran reported that he had a history of asthma and allergies as a child, and that he was exposed to smoke in Saudi Arabia and had a lot of wheezing with any type of activity. A September 2008 PFT was normal, and September 2008 chest x-rays were normal. The examiner stated that no pulmonary condition existed. ON May 2009 VA Gulf War examination, the examiner opined that the Veteran's complaints of shortness of breath and wheezing began in childhood, as the report of medical history in April 1991 noted his hay fever and wheezing as a child that still occurred with physical training as well as shortness of breath. The examiner also opined that the childhood condition of hay fever and wheezing was aggravated beyond the normal progression by the Veteran's exposure to smoke and/or other environmental hazards during his service in the Southwest Asia Theater of operations. However, the examiner went on to cite the normal PFTs conducted in 1994 and 2008 and opined therefore that the shortness of breath and wheezing were temporarily aggravated by the Veteran's exposure to smoke and other environmental hazards during his service in the Southwest Asia Theater of operations (emphasis added). At his September 2009 hearing, the Veteran testified that he still suffered from asthma periodically, but that he was able to control his symptoms with exercise. At a May 2010 VA respiratory examination, the Veteran reported an onset of asthma in 1991 while serving south of the Iraq border, as well as a current nonproductive cough aggravated by smoke and secondary to environmental exposures. He stated that he used Albuterol at home infrequently (approximately twice every other week). The examiner noted that the Veteran's records show that the last time Albuterol was prescribed was in June 2007. A May 2010 PFT was normal, and May 2010 chest x-rays were normal. In the assessment section of the examination, the examiner noted the Veteran's subjective complaints of asthma, but also noted that despite such complaints, the Veteran was currently not on any prescribed medication for asthma; his PFTs in 1994, 1995, 2008, and 2010 showed no evidence of obstructive disease; and his chest x-rays were negative for pathology. Thus, the examiner concluded that the Veteran had "no diagnosis." The May 2010 VA examiner went on to note that the November 1990 in-service report of medical history clearly and unmistakably showed that, prior to service, the Veteran answered yes to hay fever and "don't know" to shortness of breath and asthma, and that the April 1991 in-service report of medical history clearly and unmistakably showed that the Veteran had symptoms of hay fever and wheezing as a child that still occurred with physical training as well as shortness of breath. The examiner then opined that the evidence clearly and unmistakably showed that the pre-existing condition was not aggravated and did not increase in severity beyond the natural progression of the disease during service, and that this was evidenced by a normal PFT in 1994, 1995, 2008, and 2010, as well as normal chest x-rays and no clinical evidence of current treatment. In December 2011, the May 2010 VA examiner outlined an extensive review of the pertinent evidence of record. Regarding the Veteran's respiratory complaints, the examiner noted that, although there had been several subjective entries noted in the Veteran's claims file after his discharge from service, not one clinical or diagnostic finding was located in his review of STRs. The examiner noted that the only finding was one subjective report from the Veteran of past events that could not be substantiated by clinical or diagnostic data. Furthermore, the examiner noted that every chest x-ray, PFT, and examination found the Veteran to be without the diagnosis of asthma based on clinical findings, but the diagnosis of asthma and treatment with bronchodilators were based on past history of subjective reports alone. Additionally, the examiner noted that there was no clinical evidence showing relief of the claimed symptoms with the bronchodilators. While the Veteran admitted (in April 1991) to having wheezes as a child, he never admitted to having asthma at any time in his life; all PFTs and chest x-rays had been normal; and there were no clinical notes based on diagnostics confirming the existence of wheezing or asthma. Therefore, the examiner opined that the Veteran's subjective complaints of asthma without clinical or diagnostic findings were clearly not due to, caused by, or aggravated beyond normal progression by any event during active duty. Furthermore, the examiner opined that the ongoing subjective complaints of asthma or wheezing alone without clinical or diagnostic evidence of pathology did not constitute a diagnosis of asthma. The evidence shows that the Veteran has complained of respiratory symptoms (which have been assessed as asthma by history) during the pendency of the instant claim. His STRs in April 1991 noted a history of hay fever and wheezing as a child that still occurred with physical training as well as shortness of breath; however, no respiratory abnormalities were noted on April 1991 active duty separation examination, and a May 1991 STR noted a history of "wheezing" while running in Saudi Arabia but that he had "no problems now." As was noted by the May 2010 VA examiner and reiterated in her December 2011 medical opinion, postservice treatment records consistently reflect that, despite a history of asthma noted as part of his medical problem list, diagnostic testing (PFTs and chest x-rays) conducted in 1994, 1995, 2008, and 2010 were all entirely normal and showed no respiratory pathology whatsoever for the Veteran. Consequently, in the absence of evidence of a current respiratory disability, service connection cannot be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As an alternative, the Veteran presents the theory of entitlement that his respiratory symptoms may be manifestations of an undiagnosed illness or a chronic multisymptom illness as a result of exposure to fire smoke while serving in the Southwest Asia Theater of operations during the Persian Gulf War. However, as noted by the May 2010 VA examiner and reiterated in her December 2011 medical opinion, the Veteran did not exhibit objective indications of a chronic respiratory disability during his service, nor has he exhibited objective indications of a chronic respiratory disability to a degree of 10 percent or more at any time. Consequently, service connection pursuant to 38 C.F.R. § 3.317(b)(8) is not warranted. The Veteran is competent to describe any discernible respiratory symptoms without any specialized knowledge or training. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). However, his statements referring to such symptoms as asthma or as manifestations of an undiagnosed illness or a chronic multisymptom illness are not competent evidence, as he is a layperson, and lacks the training to render medical diagnoses; this question is eminently medical in nature and is not capable of resolution by lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court). In light of the foregoing, the Board concludes that the preponderance of the evidence is against this claim. Accordingly, it must be denied. ORDER The appeal seeking service connection for a respiratory disability (including asthma), to include as due to an undiagnosed illness, is denied. REMAND The Board's November 2011 remand instructed the RO to readjudicate the Veteran's claims remaining on appeal, including the claim for a TDIU. If any claim remained denied, the RO was to issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond before returning the case to the Board for further appellate review. In a July 2012 rating decision, the AMC granted an increased 100 percent rating for "acquired psychiatric condition to include cognitive disorder, as well as major depressive disorder associated with chronic constipation," effective December 14, 2010. The AMC based this 100 percent rating solely on the report of a December 2010 VA psychiatric treatment session wherein the Veteran reported that he had quit working in June 2010 and closed his hair salon, which he attributed "variably to pain, feeling personal insults from vague others including clients, summing this and most other things up as 'Struggling.'" The AMC noted that its full grant of benefits for the Veteran's psychiatric condition "moots the appeal for [TD]IU." However, the Board notes that the Veteran's claim for a TDIU was not a part of the claim for an increased rating for a psychiatric disorder, and instead has always been a freestanding claim. Accordingly, the claim for a TDIU rating is still actively on appeal. Furthermore, the Board has determined that the evidence of record (including the December 2010 VA psychiatric treatment record outlined above) does not adequately show whether the Veteran is unable to obtain or retain substantially gainful employment due solely to his two service-connected disabilities (i.e., the acquired psychiatric condition, and chronic constipation). An examination by an appropriate physician to assess the cumulative impact that the Veteran's service-connected disabilities would be expected to have on his employability (disregarding his age or the effects of any disabilities that are not service-connected) is necessary. Thereafter, the RO must readjudicate the claim for a TDIU rating, and if it remains denied, issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond before returning the case to the Board for further appellate review. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Accordingly, the case is REMANDED for the following: 1. The RO should arrange for the Veteran to be examined by an appropriate physician to assess the cumulative impact that his service-connected disabilities would be expected to have on his employability (disregarding his age or the effects of any disabilities that are not service-connected). The Veteran's entire record (to include the claims file with this remand and the records in Virtual VA) must be reviewed by the examiner in conjunction with the examination (pertinent records in Virtual VA and not in the claims file should be printed and associated with the claims file if the examiner does not have access to Virtual VA). Based on review of the record (to include this remand) and examination of the Veteran, the examiner must provide opinions that respond to the following: (a) Please discuss the functional limitations associated with, and expected impact on employment resulting from, each of the Veteran's service-connected disabilities (acquired psychiatric condition to include cognitive disorder, as well as major depressive disorder associated with chronic constipation, rated 100 percent; and chronic constipation, rated 10 percent). (b) Please discuss the functional limitations associated with, and expected impact on employment resulting from, the Veteran's service-connected disabilities cumulatively. It should be noted that the Veteran's employment experience has been described as a cosmetologist and barber, and that he ran his own barber shop for more than 20 years. (c) Please opine whether the service-connected disabilities when considered together render the Veteran incapable of participating in any gainful employment consistent with his education and work experience. Please identify the types of employment, if any, that would not be inconsistent with/precluded by the cumulative functional limitations due to the service-connected disabilities and those types of employment, if any, that remain feasible despite the disabilities. The examiner must explain the rationale for all opinions, citing to supporting factual data and medical literature, as deemed appropriate. 2. The RO should ensure that all of the development sought is completed, arrange for any further development suggested by the additional evidence received, and then readjudicate the claim for a TDIU rating. If it remains denied, the RO should issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 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). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs