Citation Nr: 1337863 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 07-34 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a respiratory disability, to include as due to an undiagnosed illness resulting from Persian Gulf service. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel INTRODUCTION The Veteran served on active duty from March 2002 to March 2006. The matter comes before the Board of Veterans' Appeals (Board) from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The record reflects that the Board has remanded this claim on two previous occasions. The Board remanded the case to the RO, via the Appeals Management Center (AMC), in April 2011 and August 2012. The case has been returned to the Board for further appellate review. Upon reviewing the development of this case, since August 2012, the Board finds that there has been substantial compliance with its remand instructions with respect to the Veteran's respiratory disability. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has stated that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall v. West, 11 Vet. App. 268 (1998) violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order"). Here, the AMC was ordered to ascertain whether treatment records relating to the Veteran's respiratory disability were outstanding. That task was completed. The AMC was also ordered to request a VA medical opinion as to the nature and etiology of the Veteran's respiratory disability, in light of an August 2011 private CT scan of the Veteran's chest and lungs. Such an opinion was rendered. The examiner reiterated his opinion that the Veteran did not have asthma and the results of the Veteran's private CT scan did not warrant a diagnosis of any respiratory condition. The examiner also concluded that it was more likely than not that the Veteran's shortness of breath was caused by his use of tobacco products before and during service. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of the Board's most recent remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). Thus, the Board will proceed to review and decide the claim with respect to the issue now on appeal based on the evidence that is of record. FINDINGS OF FACT 1. The Veteran had active service in the Southwest Asia Theater of operations during the Persian Gulf War. 2. Since the Veteran's Persian Gulf service, the Veteran has exhibited objective symptoms of shortness of breath, attributable to no diagnosis. CONCLUSION OF LAW Shortness of breath as due to an undiagnosed illness was incurred in service. 38 U.S.C.A. §§ 1110, 1117, 1118, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION In light of the favorable determination contained herein, further development with regard to VA's duties to notify and assist as set forth by the Veterans Claims Assistance Act of 2000 (VCAA) would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540 (1991). Merits Service connection for chronic, undiagnosed illness (or a medically unexplained chronic multi-symptom illness such as fibromyalgia, chronic fatigue syndrome, or irritable bowel syndrome) arising from service in Southwest Asia during the Gulf War may be established under 38 U.S.C.A. § 1117 (West 2002) and 38 C.F.R. § 3.317 (2013). Under those provisions, service connection may be established for objective indications of a chronic disability resulting from an undiagnosed illness or illnesses, provided that such disability (1) became manifest in service on active duty in the Armed Forces 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 (2) by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. To fulfill the requirement of chronicity, the illness must have persisted for six months. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317 (2013); see also 76 Fed. Reg. 81,834 (Dec. 29, 2011) (extending the delimiting date). Signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b). Compensation shall not be paid under this section, however, if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(a)(7). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Initially, the Board finds that the Veteran is a Persian Gulf Veteran, as described by 38 C.F.R. § 3.317. As noted in the Board's April 2011 remand, the Veteran's DD Form 214 does not indicate that the Veteran served in the Persian Gulf during the applicable period; however, a review of the Veteran's service personnel records indicates that the Veteran served in Iraq during 2005. In January 2006, the Veteran was awarded the Army Commendation Medal for his service in support of Operation Enduring Iraqi Freedom. The award specifies that the Veteran's support of the mission occurred from June 2005 to December 2005. The claims file also contains a pre-deployment health assessment. That assessment indicates, which was completed in June 2005, indicated that the Veteran was to deploy to Camp Bucca, Iraq. Further, the Veteran's service personnel records include a Recommendation for Award that describes the Veteran's assignment at Camp Bucca. The Board finds this information, coupled with the Veteran's October 2007 statement that he served in Iraq, see October 2007 VA Form 9, sufficient to show that the Veteran is a Persian Gulf Veteran for the purposes of 38 C.F.R. § 3.317. Having determined that the Veteran is a Persian Gulf Veteran, the evidence of record indicates that the Veteran does not suffer from a diagnosed respiratory disability. While in service, the Veteran complained of difficulty breathing-he noted he awakened due to an inability to breathe. January 2006 Chronological Record of Medical Care. Upon examination in February 2006, the examining professional noted that the Veteran's "pattern shows a likely slight obstructive component [that] could be consistent with asthma . . . ." February 2006 Chronological Record of Medical Care (emphasis added). No further in-service evaluation of the Veteran's breathing difficulties was planned as the Veteran was close to separation. See id. Following his separation from service, the Veteran was afforded a VA examination (QTC examination) by Dr. R.K., in May 2006. There, the Veteran reported to Dr. R.K. that he has suffered from asthma since September 2002. Dr. R.K. noted that chest x-rays were within normal limits. Pre-bronchodilator testing was performed, and Dr. R.K. explained that the results of that test were within normal limits. Dr. R.K. rendered a diagnosis of status post asthma for the Veteran. This diagnosis was based on the Veteran's subjective complaints of intermittent shortness of breath and the objective factor that that the Veteran was taking inhalers. See May 2006 Report of Dr. R.K. The Veteran was afforded another VA examination August 2011. As a result of that examination, the examiner concluded "there is no evidence of any pulmonary pathology." See August 2011 VA Examination Report. The examiner noted the Veteran's complaints of shortness of breath and also noted that the Veteran had never used inhalers, despite some childhood respiratory problems. Id. The Veteran did report the use of air purifier mask as a child. Id. Pulmonary function testing (PFT) was performed and the results were normal. Id. Chest X-rays (CXR) were also noted as normal. Id. The examiner concluded "with a normal physical exam, normal CXR, and normal PFT, there is no clinical evidence of any pulmonary pathology." Id. In September 2012, the examiner who conducted the Veteran's August 2011 VA examination provided an addendum to his initial report. As required by the Board's August 2012 remand, the examiner addressed the results of a CT scan undergone by the Veteran in August 2011. That CT scan showed a small pleural node and a faint reticulonodular lesion, both in the Veteran's right upper lobe. See September 2012 VA Examination Addendum Report. The examiner described the node and lesion as incidental and explained that the presence of those two things does not constitute a diagnosis of asthma or any other respiratory disability. Id. The examiner then explained that "the gold standard of diagnosing asthma is by pulmonary function testing." Id. He detailed that the Veteran's August 2011 PFT showed normal air flow with no evidence of compromised pulmonary function. The examiner noted a normal PFT conducted during service. The examiner reiterated his opinion that the Veteran does not have asthma. Given the diagnosis of asthma post status by Dr. R.K. and the opinion of the August 2011 examiner that the Veteran does not have asthma or any other diagnosable pulmonary disability, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Evans v. West, 12 Vet. App. 22, 30 (1998). That responsibility is particularly onerous where medical opinions diverge. At the same time, the Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Id.; see also Colvin v. Derwinski, 1 Vet. App 171 (1991). In this instance, the Board finds the opinion of the August 2011 examiner more probative in considering the Veteran's respiratory disability. This is because the opinion of Dr. R.K. is based on inconsistent reports made by the Veteran. As discussed above, Dr. R.K. based his diagnosis, in part, on that the Veteran "was taking inhalers." See May 2006 Report of Dr. R.K. Upon receiving treatment in January 2006, the Veteran reported using corticosteroids for asthma. See January 2006 Chronological Report of Medical Care. In his August 2001 Report of Medical History, however, the Veteran was expressly asked whether he had ever been prescribed or used an inhaler. See August 2001 Report of Medical History. The Veteran clearly marked "no" in response to that question. Further, at his August 2011 VA examination, reported that he "has never used inhalers." See August 2011 VA Examination Report. Certainly the Veteran is competent to report whether he used inhalers, but his inconsistent reports as to whether he ever used such are not credible given those inconsistencies. See Cazula v. Brown, 7 Vet. App. 498 (1995) (consistency of evidence to be used in determining credibility). In turn, the Veteran's not-credible statements regarding his use of inhalers render the May 2006 diagnosis of Dr. R.K. not probative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (opinions based on inaccurate factual premises not probative). Significantly, Dr. R.K.'s diagnosis relies heavily on the fact that the Veteran has used inhalers in the past. Indeed, that is the sole piece of "objective" evidence that Dr. R.K. relies upon in rendering his diagnosis, in addition to the "subjective" complaints of shortness of breath. See May 2006 Report of Dr. R.K. On the other hand, the November 2011 VA examiner does not rely upon the Veteran's use or nonuse of inhalers. Instead, the examiner relied heavily upon the PFT testing results, as discussed above. As such, the Board finds the November 2011 VA examiner's opinion more probative of the Veteran's respiratory disability than that of Dr. R.K. With respect to the Veteran's statement that Cpt. N. told the Veteran that it appeared he had asthma but more testing was necessary, see December 2006 Notice of Disagreement, that statement is insufficient to conclude that the Veteran has asthma. Indeed, even taken as true, the statement does not express that the Veteran, in fact, has asthma. Instead, the statement is speculative and offers an opinion as to what the Veteran's respiratory disability might be. This is insufficient to establish that the Veteran has asthma. Accordingly, the Board finds that the Veteran does not have a diagnosed respiratory disability. As required by 38 C.F.R. § 3.317, as explained above, the Veteran has exhibited objective indications of a qualifying chronic disability. Service treatment records show that the Veteran presented several times with shortness of breath after his service in Iraq. See February 2006 Chronological Record of Medical History; January 2006 Chronological Record of Medical History. Further, as discussed above, with respect to the Veteran's shortness of breath, the Veteran has not been diagnosed as having any respiratory disabilities. The Veteran's shortness of breath has also manifested to a degree of at least 10 percent by December 31, 2016. 38 C.F.R. § 3.317. The Board notes that there is no diagnostic code relating to shortness of breath; however, by analogy, under Diagnostic Code 6602 pertaining to asthma, a ten percent evaluation appears warranted with FEV-1 of 71 to 80 percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy. 38 C.F.R. § 4.97, Diagnostic Code 6602 (2012). Pulmonary function testing from May 2006 shows FEV-1 of 79 percent predicted. As such, under Diagnostic Code 6602, the Veteran's undiagnosed respiratory disability has manifested to a degree of at least 10 percent within the applicable period. 38 C.F.R. § 3.317. As discussed above, despite the establishment of disability due to an undiagnosed illness, the analysis does not end there. See 38 C.F.R. § 3.317(a)(7). To that end, the Board notes that in the addendum opinion offered by the VA examiner in September 2012, the examiner stated that "[the Veteran] admitted to smoking at least 1/2 [packs per day for three years], even after enlisting in service. Thus, his symptoms of shortness of breath in the service are at least as likely as not due to smoking. Smoking is unrelated to service." See September 2012 VA Examination Addendum Report. Quantitatively put, the examiner is merely asserting that it is at least a 50 percent probability that the Veteran's smoking is the cause of his shortness of breath. That probability is insufficient to constitute affirmative evidence that the disability was not incurred in service. This is because the examiner's statement conveys that it is possible, not probable, that the Veteran's smoking is the cause of his shortness of breath. The same is true of the examiner's statement that the Veteran's respiratory problems "sound[] like [they] may be similar to the childhood condition [the Veteran] had. He might have persistent allergies or heightened sensitivities to air pollutants." See September 2012 VA Examination Addendum Report. In that instance, the examiner's opinion is speculative and offers no insight into the likelihood that the Veteran's shortness of breath is related to either a childhood problem or some environmental allergy. As such, the Board concludes that the record does not contain affirmative evidence showing that the Veteran's undiagnosed respiratory disability was not incurred during his Persian Gulf service. See 38 C.F.R. § 3.317(a)(7). Accordingly, service connection for an undiagnosed respiratory disability due to the Veteran's Persian Gulf service is presumed under 38 C.F.R. § 3.317. ORDER Entitlement to service connection for a respiratory disability, as due to an undiagnosed illness resulting from Persian Gulf service, is granted. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs