Citation Nr: 1805130 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 12-13 604 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for a respiratory disorder claimed as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Wozniak, Associate Counsel INTRODUCTION The Veteran served in the U.S. Army from May 1974 to March 1994. The Veteran has been awarded the Southwest Asia Service medal and the Kuwait Liberation medal. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 2010 decision of the Reno, Nevada, Regional Office (RO). In a September decision, the RO granted entitlement to a total disability rating based on individual unemployability (TDIU), effective April 17, 2009. Pursuant to VA's duties to notify and assist the Veteran, VA advised the claimant how to substantiate an application for benefits, obtained all relevant and available evidence and conducted any appropriate medical inquiry. The appeal is ready for appellate review. In January 2013, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is in the record. In January 2015, the Board remanded the appeal to the RO to schedule an additional hearing. However, in an October 2017 statement the Veteran withdrew his hearing request and the Board will adjudicate the appeal. FINDING OF FACT A respiratory disorder did not originate as a result of the Veteran's service. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder claimed as due to an undiagnosed illness have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C.A. § 1110. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be also 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, or that became manifest to a degree of 10 percent or more not later than December 31, 2016. 38 C.F.R. § 3.317 (a)(1) (2016). The Veteran has been awarded the Southwest Asia service medal and the Kuwait liberation. Therefore, the Veteran is considered a Persian Gulf War Veteran. 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 multisymptom 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. 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. 38 C.F.R. § 3.317(a)(4). In the Veteran's April 1994 separation examination his lungs and chest were noted to be normal and a chest X-Ray was normal. The Veteran noted he was in good health and his PULHES profile indicated he was in excellent physical health, including his physical capacity and stamina as identified by the "P" designator. Odiorne v. Principi, 3 Vet.App. 456 (1992) ((observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). The Veteran was first seen for respiratory symptoms in January 1999, and the clinician noted complaints of congestion and the need for a surgery for a deviated septum. In a February 1999 VA examination the Veteran was noted to have a deviated septum. An October 1999 treatment note indicated possible diagnoses for sleep apnea and rhinitis. A December 1999 treatment note recorded nose bleeds, snoring, an inability to breathe through nose, and congestion. In an April 2006 VA treatment note the Veteran was seen with complaints of sinus pressure and the clinician diagnosed acute sinusitis. In March 2010, the Veteran was afforded a VA examination. The Veteran reported serving in the Gulf War from January 1991 to August 1991 with exposure to oil field fires. The examiner reported a diagnosis of sleep apnea and symptoms of allergic rhinitis. In a September 2011 VA examination the Veteran had complaints of sleep disturbance. The examiner diagnosed the Veteran with obstructive sleep apnea and rhinosinusitis and stated both diseases had a clear and specific etiology and diagnosis. Service connection for respiratory problems claimed as due to an undiagnosed illness is not warranted. The evidence shows complaints of congestion, a deviated septum, and coughing. However there is no competent evidence that the Veteran's symptoms are a part of an undiagnosed illness. As indicated in the Veteran's September 2011 VA examination his respiratory symptoms are diagnosed as rhinosinusitis with a clear and specific etiology. Accordingly, the Board concludes that service connection for respiratory problems claimed as due to an undiagnosed illness must be denied. 38 C.F.R. § 3.317. The Board has also considered whether the Veteran is entitled to service connection for his diagnosed respiratory problems (rhinosinusitis) on a direct basis. The Veteran was first seen for his respiratory symptoms in January 1999, almost five years after service separation. No competent medical evidence supports the Veteran's respiratory problems were caused by his active service. The Board has considered the Veteran's assertions that his rhinosinusitis was caused by his military service. The Veteran is not competent, however, to offer an opinion as to the etiology of this type of condition due to the medical complexity of the matter involved. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994). A preponderance of the evidence is against a finding that the Veteran's rhinosinusitis originated during service. Therefore, service direct connection is not warranted and the claim is denied. (CONTINUED ON NEXT PAGE) ORDER Service connection for a respiratory disorder, diagnosed as rhinosinusitis, and claimed as due to an undiagnosed illness is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs