Citation Nr: 1803243	
Decision Date: 01/18/18    Archive Date: 01/29/18

DOCKET NO. 14-07 442	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1. Entitlement to service connection for a disability manifested by shortness of breath and difficulty breathing, to include as being due to undiagnosed illness.

2. Entitlement to service connection for hypertension.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

R. Husain, Associate Counsel



INTRODUCTION

The Veteran served on active duty in the United States Navy from April 1989 to June 1995, and in the United States Army from December 2003 to April 2005, including in the Southwest Asia Theater of Operations during the Persian Gulf War.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.


FINDINGS OF FACT

1. The Veteran does not have a current diagnosis of a disability manifested by shortness of breath and difficulty breathing. The Veteran had active service in the Southwest Asia Theater of operations during the Persian Gulf War. The Veteran's symptoms have been not attributed to an undiagnosed illness or a medically unexplained chronic multisymptom illness, and are not otherwise related to active service. 

2. The Veteran's hypertension is not related to active service, is not continuous since service, and did not manifest within one year of active service.


CONCLUSIONS OF LAW

1. The criteria for service connection for a disability manifested by shortness of breath and difficulty breathing have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2017).

2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

The Board has thoroughly reviewed all the evidence in the Veteran's VA file. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, it is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra.

II. Service Connection 

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 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 Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Service connection may also be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Service connection may also be established under 38 C.F.R. § 3.303(b), where a disability in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331, 1340 (Fed. Cir. 2013). The Veteran currently has hypertension, and hypertension is a chronic disease listed under 38 C.F.R. § 3.309(a); thus, 38 C.F.R. § 3.303(b) is applicable.

Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases (such as hypertension) become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. However, where the evidence does not warrant presumptive service connection, a veteran is not precluded from establishing service connection with proof of direct causation. See Combee, 34 F.3d at 1043.

Furthermore, pursuant to 38 U.S.C. § 1117, "a Persian Gulf Veteran with a qualifying chronic disability," that manifests to a degree of 10 percent or more before December 31, 2021, may be entitled to compensation. See 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1); see also Extension of the Presumptive Period for Compensation for Gulf War Veterans, 81 Fed. Reg. 71382 (Oct. 17, 2016) (to be codified at 38 C.F.R. pt. 3). As the Veteran's personnel records show that he served in the Southwest Asia Theater of operations from March 3, 2004, to March 15, 2005, these provisions apply to him.

There are three avenues for finding that a chronic disability may qualify for presumptive service connection pursuant to 38 U.S.C. § 1117. Qualifying chronic disabilities include those that result from (1) "[a]n undiagnosed illness," (2) "[a] medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders, to include irritable bowel syndrome) that is defined by a cluster of signs or symptoms," or (3) "[a]ny diagnosed illness that the Secretary determines in regulations... warrants a presumption of service connection." See 38 U.S.C. § 1117(a)(2)(A), (B), (C); 38 C.F.R. § 3.317(a)(2)(i)(B).

VA has defined a medically unexplained chronic multisymptom illness as "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." 38 C.F.R. § 3.317(a)(2)(ii).

Along with the three examples of a medically unexplained chronic multisymptom illness provided by 38 U.S.C. § 1117(a)(2)(B), Congress has provided a list of signs or symptoms that may be a manifestation of a medically unexplained chronic multisymptom illness that includes: skin symptoms, headaches, muscle pain, joint pain, neurologic symptoms, neuropsychological symptoms, respiratory symptoms, sleep disturbances, gastrointestinal symptoms, cardiovascular symptoms, abnormal weight loss, and menstrual disorders. See 38 U.S.C. § 1117(g); 38 C.F.R. § 3.317(b).

The provisions of 38 C.F.R. § 3.317(a)(ii) provide that, in order to be considered a qualifying chronic disability, a disability "[b]y history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis." The definition of "medically unexplained chronic multisymptom illness" includes a "diagnosed illness without conclusive pathophysiology or etiology."

A. Disability manifested by shortness of breath and difficulty breathing

The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for a disability manifested by shortness of breath and difficulty breathing on either a direct or presumptive basis. The reasons follow.

The Veteran has not been diagnosed with disability manifested by shortness of breath and difficulty breathing, and thus there is no evidence of a current disability. For example, on November 11, 2012 the Veteran was seen for a VA examination for respiratory conditions in connection with his claim. The examiner noted that the Veteran was being treated at the Memphis VAMC for issues related to shortness of breath, but stated that there was no diagnosis of asthma or any other pulmonary conditions. Furthermore, while the Veteran reports a history of asthma, the preponderance of the evidence does not support that a medical professional diagnosed the Veteran with asthma. Psychiatric notes indicate an assessment of asthma; however these notes are also based upon the Veteran's reported history, and not upon medical examination of the Veteran. The Board finds that the November 2012 examination report is supported by a well-reasoned rationale and objective medical findings from diagnostic tests, and so the Board assigns this examination high probative value.

As to direct service connection, the Veteran's claim fails on both the in-service disease or injury and the nexus to service. For example, the service treatment records show that the Veteran specifically denied asthma in 1989, 1991, 1992, 1993, 1994, and 1995 and shortness of breath in 1989, 1995, and 1998. The Veteran's denial of asthma and shortness of breath in service is evidence against a finding that he had a disability manifested by shortness of breath and difficulty breathing in service. Although the Veteran reports shortness of breath during service, the Veteran did not report any such symptoms while in service, and the preponderance of the evidence does not support complaint or treatment for these symptoms during service. The fact that the Veteran did not report these problems during service or for several years after service tends to weigh against a finding of a disability manifested by shortness of breath and difficulty breathing in service

As to a nexus to service, when the Veteran was seen in November 2012, the examiner stated that the Veteran's claimed condition was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner also noted that approximately four years had lapsed between the Veteran's separation from service and his first complaint of breathing problems. This tends to establish that a disability manifested by shortness of breath and difficulty breathing did not have its onset in service. The November 2012 VA examiner also noted that the Veteran's diagnostic tests showed a mild restrictive ventilator defect, but that no pulmonary disease due to Gulf War hazards was present. To the extent that the Veteran had implied that his disability had its onset in service, his service treatment records refute such a finding. The Board accords high probative value to the in-service reports by the Veteran, as he completed these forms contemporaneously with service. To the extent that the Veteran has implied that a disability manifested by shortness of breath and difficulty breathing is otherwise related to service, his allegation is outweighed by that of the November 2012 examiner, who provided the opinion that the Veteran's symptoms were not related to service.

As to presumptive service connection for Persian Gulf War veterans, the preponderance of the evidence supports that the Veteran served in Kuwait and Iraq during the applicable time period, and therefore the first element of presumptive service connection for Gulf War symptoms is met.

However, the Veteran's claim fails as to the presence of any qualifying chronic disabilities, including those that result from (1) "[a]n undiagnosed illness," (2) "[a] medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders, to include irritable bowel syndrome) that is defined by a cluster of signs or symptoms," or (3) "[a]ny diagnosed illness that the Secretary determines in regulations... warrants a presumption of service connection."

The Veteran received Gulf War symptoms examinations in November 2012 and July 2014. On both occasions, the examiners stated that the Veteran had no undiagnosed illness, no diagnosed medically unexplained chronic multi-symptom illness, and no undiagnosed symptoms. The July 2014 examiner added that the Veteran has no diagnosable chronic multi-symptom illness with a partially explained etiology. The preponderance of the evidence does not indicate that the Veteran has fatigue, pain, disability out of proportion to physical findings, or inconsistent demonstration of laboratory abnormalities. The results of these examination reports tend to weigh against the finding of a qualifying chronic disability.

In light of the aforementioned evidence, the Board finds that the Veteran's symptoms are not related to his active duty service, to include his service in Southwest Asia during the Persian Gulf War. The Board has considered the Veteran's assertions that his current symptoms are due to his active duty service. While the Veteran is competent to report symptoms that he perceived through his own senses, he is not competent to offer an opinion as to the diagnosis or etiology of respiratory disorders due to the medical complexity of the matter involved. These symptoms and disorders require specialized training for a determination as to causation and progression, and are therefore not susceptible to lay opinions related to diagnosis or etiology. Thus, the Veteran is not competent to render an opinion or attempt to present lay assertions to establish etiology as related to his active duty service in the Persian Gulf War.

Without evidence of a current disability due to disease or injury, service connection for a disability is not warranted. Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). Symptoms, such as shortness of breath, difficulty breathing, or a mild restrictive ventilator defect, without an underlying disease or injury, cannot meet the regulatory requirement for the existence of a current disability. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Because a medical professional has determined that the Veteran's shortness of breath and mild restrictive ventilator defect are not indicative of a current disability due to disease or injury, the preponderance of the evidence is against the claim.

In sum, the Board concludes that the preponderance of the evidence of record is against the Veteran's claim for service connection for disability manifested by shortness of breath and difficulty breathing. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107(b) is not applicable, as there is no approximate balance of evidence. Gilbert, 1 Vet. App. 49, 53; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

B. Hypertension

The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for hypertension on either a direct or presumptive basis. The reasons follow.

The Veteran has been diagnosed with hypertension, and thus there is evidence of a current disability. However, as to direct service connection, the Veteran's claim fails on both the in-service disease or injury and the nexus to service. For example, the service treatment records show that the Veteran specifically denied ever having high or low blood pressure in 1989, 1991, 1992, 1993, 1994, and 1995. The Veteran's denial of high blood pressure during service is evidence against a finding that he had hypertension in service.

As to a nexus to service, the preponderance of the evidence supports that the Veteran first demonstrated symptoms of hypertension in May 2009, approximately four years after service, and tends to establish that the Veteran's hypertension did not have its onset in service. To the extent that the Veteran has implied that hypertension had its onset in service, his service treatment records refute such a finding. The Board accords high probative value to these reports by the Veteran, as he completed these forms contemporaneously with service.

Given the above evidence, the Board finds that the Veteran did not incur an event, injury, or disease related to his current hypertension in service and that his hypertension disorder did not manifest during service or within one year of separation from service.

Furthermore, the evidence of record does not demonstrate that the Veteran's symptoms have been continuous since separation from service in June 1995 or April 2005. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); see also Walker, 718 F.3d at 1340. There were no complaints, diagnosis, or treatment for this disorder until four years following discharge from service in 2005. As noted by the VAMC records, hypertension had its onset in 2009. The absence of post-service complaints, findings, diagnosis, or treatment for approximately four years after service is one factor that tends to weigh against a finding of continuous symptoms since separation from service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability).

In sum, the Board concludes that the preponderance of the evidence of record is against the Veteran's claim for service connection for hypertension. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107(b) is not applicable, as there is no approximate balance of evidence. Gilbert, 1 Vet. App. 49, 53; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).



ORDER

Entitlement to service connection for a disability manifested by shortness of breath and difficulty breathing, to include as being due to an undiagnosed illness, is denied.

Entitlement to service connection for hypertension is denied.




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs