Citation Nr: 18148189 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-33 726 DATE: November 7, 2018 ORDER Service connection for sinusitis is denied. Service connection for bronchitis is denied. Service connection for asthma is denied. Service connection for sleep apnea is denied. A disability rating in excess of 70 percent for post-traumatic stress disorder with recurrent major depression and alcohol use disorder (PTSD) is denied. An effective date prior to February 17, 2015 for the 70 percent rating for PTSD is denied. Service connection for pneumonia is denied. FINDINGS OF FACT 1. The Veteran is not currently shown to have sinusitis. 2. The Veteran is not currently shown to have bronchitis. 3. The Veteran is not currently shown to have asthma. 4. The Veteran is not currently shown to have sleep apnea. 5. The Veteran is not shown to have a chronic respiratory disability manifested by pneumonia. 6. The overall evidence fails to show that the Veteran’s PTSD causes total social and total occupational impairment. 7. The evidence of record during the one-year period prior to February 17, 2015 does not make it “factually ascertainable” that the Veteran’s PTSD symptoms had worsened during this period. CONCLUSIONS OF LAW 1. The criteria for service connection for sinusitis have not been met. 38 U.S.C.§§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310, 3.317. 2. The criteria for service connection for bronchitis have not been met. 38 U.S.C.§§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310, 3.317. 3. The criteria for service connection for asthma have not been met. 38 U.S.C.§§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310, 3.317. 4. The criteria for service connection for a chronic respiratory disability to include pneumonia have not been met. 38 U.S.C.§§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310, 3.317. 5. The criteria for service connection for sleep apnea have not been met. 38 U.S.C.§§ 1110, 1117, 5107; 38 C.F.R.§§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310, 3.317. 6. The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9411. 7. The criteria for an effective date prior to February 17, 2015 for a 70 percent disability rating for PTSD have not been met. U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 2003 to December 2003 and from October 2005 to August 2007. His military service records show that he served in Iraq from April 2006 to July 2007. Therefore, the Veteran is a Persian Gulf veteran and his exposure to environmental hazards in the Persian Gulf is conceded. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.§ 1110; 38 C.F.R.§ 3.303. Service connection requires competent evidence showing: (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 (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). In addition, service connection may also be established under 38 C.F.R. § 3.303(b), where a symptom of a chronic disease is noted in service without diagnosis in service or within one year from service, but chronicity is established by continuity of symptomatology after service. This is an alternative way to establish service connection for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be established on a secondary basis for a disability which is proximately due to, or aggravated by, a service connected disability. 38 C.F.R.§3.310 (a). For a Persian Gulf veteran, service connection may be awarded on an additional presumptive basis if a veteran (1) exhibits objective indications; (2) of a chronic disability such as those listed in paragraph (b) of 38 C.F.R. § 3.317 ; (3) which became manifest either during active military, naval, or air 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; and (4) such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. Gutierrez v. Principi, 19 Vet. App. 1, 7 (2004); 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Objective indications of a 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. Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headaches, 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, or menstrual disorders. 38 C.F.R. § 3.317 (b). Sinusitis, Asthma, Bronchitis The Veteran is seeking service connection for several respiratory disorders, to include specifically, sinusitis, asthma, and bronchitis. He stated in his substantive appeal (Form 9) that he should be entitled for service connections for these respiratory disorders due to exposure to environmental hazards during his service in Iraq. The Veteran’s representative provided medical literatures suggesting that high percentages of respiratory disorders had been found in the Veterans with service in Iraq and requested for a medical opinion addressing whether the Veteran has a current respiratory disorder related to his service. The Veteran was provided with a VA examination in July 2015, at which he conceded that he had never been diagnosed with chronic sinusitis. Veteran reported that he had gone to quick clinics for sinus issue but no medical records were available. Veteran reported that he has been given Zyrtec in past for sinus issues. Imaging studies of the sinuses was performed and showed negative result. At the examination, the Veteran reported that he had experienced asthma as a child, but asserted that the condition had resolved within two years such that he was able to play sports in high school and did not have breathing problems afterwards. The Veteran reported that he was a routine exerciser and had no coughing currently and no shortness of breath and did not require an inhaler. The Veteran denied any history of bronchitis and he conceded that his attorney added the disability to his claim. Chest x-rays and pulmonary function testing (PFT) were performed and results were negative for respiratory disorders. Additionally, the Veteran was provided with a VA Gulf War general medical examination in July 2015, at which the examiner indicated that the Veteran did not have diagnosed illnesses with no etiology or signs or symptoms that may represent an undiagnosed illness or medically unexplained chronic multi-symptom illness. The Veteran’s service treatment records (STRs) do not contain complaints, treatment, or diagnosis for sinusitis, asthma or bronchitis. The Veteran’s representative argued that STRs appeared to be incomplete because there were no separation examination reports for the Veteran. The Board notes that the VA regional office (RO) in a letter dated September 2009 requesting the Veteran’s service records specifically asked for all Veteran’s examination records, to include the entry of duty (EOD) examinations and relief of active duty (RAD) examinations. This, coupled with the fact that the Veteran did not indicate that he had a separation physical, makes it unlikely that service treatment records exist which have not been associated with the claims file. In sum, the evidence of record supports the conclusion that the Veteran does not currently have sinusitis, asthma, or bronchitis. The medical records do not reveal the treatment or diagnoses of these conditions. The Veteran denied that he currently had these conditions and the medical examinations further rule out the diagnoses of sinusitis, asthma and bronchitis. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Although the Veteran’s representative provided medical literatures suggesting that high percentages of respiratory disorders are found in the Veterans who served in Iraq, this is not competent evidence to show that this Veteran currently has sinusitis, asthma and bronchitis, or other type of Gulf War illness. A medical opinion for these conditions is not warranted because there is no competent evidence of a current disability or symptoms of a disability. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, service connection for sinusitis, asthma, and bronchitis is denied. The Board has reviewed the medical literature submitted by the Veteran’s representative documenting an increase in the number of Veteran’s with Persian Gulf service with chronic respiratory disabilities. The findings of the medical literature are not questioned, but as discussed above, the Veteran has not been diagnosed with a chronic respiratory disability. As such, this medical literature is not found to be applicable to this case. With regard to pneumonia, the Veteran was provided a VA examination in July 2015, at which he reported he had pneumonia the day he returned home from Iraq in 2007, which was diagnosed at Leavenworth hospital and treated with Z-Packs. The Veteran reported that prior to deploying to Iraq he had pneumonia once time and he was treated with an antibiotic, an albuterol inhaler, and a nasal decongestant. The Veteran reported that he has had pneumonia 3 times since 2007, 2 treated at Washburn University and 1 treated at walk in clinic in Kansas City (no medical records available). The Veteran reported that he had not experienced pneumonia for approximately three years. The VA examiner indicated that the Veteran was diagnosed with pneumonia prior to his deployment to Iraq and had a history of pneumonia after return from Iraq in 2007, 2008, 2009, and 2012. All episodes of pneumonia were treated with oral antibiotics on outpatient basis. X-rays show no active cardiopulmonary disease. The VA examiner opined that episodic pneumonia did not represent an undiagnosed illness or medically unexplained chronic multi-symptom illness of unknown etiology. Pneumonia is caused by bacteria entering the lungs. According to UpToDate, pneumonia is common and infiltrates on plain chest radiograph (considered the gold standard for diagnosing pneumonia). Accordingly, the examiner ruled out the possibility that the Veteran’s pneumonia was a type of Gulf War illness with characteristic of unexplained etiology. Here, it is acknowledged that the Veteran has had pneumonia on several occasions, but there has been no medical indication that there is an underlying chronic respiratory disability at work. As the examiner explained, the Veteran appears to have had several self-contained bouts of pneumonia both before deployment and since that time. However, the examiner noted that pneumonia is the result of bacteria that has gotten into the longs. There is no indication that the Veteran had developed a chronic respiratory disability. Moreover, the Veteran even denied having had pneumonia in a number of years. As such, service connection for pneumonia is denied. Sleep Apnea The Veteran is seeking service connection for sleep apnea. He stated in his substantive appeal (Form 9) that he should be entitled for service connections for sleep apnea due to exposure to environmental hazards during his service in Iraq. His representative argued that the Veteran’s sleep apnea appeared to be caused by his service-connected PTSD and provided a medical study indicating a greater prevalence of sleep apnea in patients diagnosed with PTSD. The representative argued that this study suggested that Veteran’s sleep apnea may be related to his service and a medical opinion should be obtained. However, as noted, the evidence of record fails to show that the Veteran has a sleep related disability, such as sleep apnea. As such, the medical literature does not trigger any duty to assist. The Veteran was provided with a VA examination in July 2015, at which the Veteran conceded that he had never been diagnosed, tested, or treated for sleep apnea. The Veteran reported that he had sleep paralysis once or twice a week, he was told by his roommates/barrack mates that he snored during sleep, and he did not require any medication or CPAP. The examiner concluded that the Veteran currently did not have any findings, signs or symptoms attributable to sleep apnea. The examiner reported that a sleep study was not performed because the Veteran had cancelled twice for a sleep study scheduled by VA. The Veteran’s service treatment records (STRs) do not contain complaints, treatment, or diagnosis for sleep apnea. In sum, the evidence of record supports the conclusion that the Veteran does not currently have sleep apnea. The medical records do not reveal the treatment or diagnoses of this condition. The Veteran conceded that he never had the treatment or diagnoses of this condition and the VA examiner concluded that the Veteran currently did not have any findings, signs or symptoms attributable to sleep apnea. The Veteran was provided opportunities to conduct a sleep study but was twice cancelled by the Veteran. Therefore, as the record stands for currently, there is no competent evidence to show that the Veteran has sleep apnea. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Although the Veteran’s representative provided a medical study suggesting that the sleep apnea might be related to PTSD, this is not competent evidence to show that the Veteran currently has sleep apnea or symptoms thereof. A medical opinion is not warranted because there is no competent evidence of a current disability or symptoms of a disability. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, service connection for sleep apnea is denied. Increased Rating PTSD In a September 2009 rating decision, RO granted service connection for PTSD with an initial rating of 30 percent effective August 26, 2009. On February 17, 2015, VA received the Veteran’s claim to increase the rating for his PTSD. Subsequently, a rating decision in June 2015 increased the rating for Veteran’s PTSD to 70 percent effective February 17, 2015. He is seeking a higher rating. PTSD is rated under DC 9411. A 70 percent evaluation is assigned when a veteran’s mental disability causes occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); or an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent rating is assigned when a veteran’s mental disability causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran was provided a VA examination in April 2015, at which denied having ever been married and reported that he was not dating. He reported a poor relationship with his siblings and parents. He denied socializing with others. He reported that he had graduated from Washburn University in Topeka, Kansas with a degree in accounting in 2010 and that he had a current job as a financial planner and analyst. However, he reported that he did not get to work until 10 am to noon due to his insomnia. His boss did not come to the office and communicated with him only in emails. He reported that he would have been fired if his boss came to office. He reported that he had been drinking heavily since 2012. He had a DUI in 2012. On examination, he was fully alert and oriented in all spheres. His appearance was neat, clean, and adequately groomed. His behavior was within normal limits and he was able to keep fair eye contact with the examiner. His thought process was clear, logical, and goal directed. He had no delusions, no cognitive slippage, and no hallucinations. He complained about short-term memory problems, difficulty with attention, concentration, and memory but he had no long-term memory decrements. He did not have suicidal thoughts, plan, or intent or homicidal thoughts, plan, or intent, but he has a history of physical violence with others with arguing, pushing, shoving, throwing punches. The examiner concluded that the Veteran’s PTSD has caused occupational and social impairment with reduced reliability and productivity. As noted, a 100 percent schedular rating for PTSD requires the psychiatric symptomatology to cause both total social and total occupational impairment. Here, it was noted in the April 2015 VA examination that the Veteran has a job as a financial planner and analyst. This suggests that the Veteran does not have total occupational impairment. He appears to be oriented and behave within normal limits. He is capable of maintaining his personal affairs and financial affairs. This suggests that the Veteran does not have total social impairment. This is not to say the Veteran does not experience occupational or social impairment, quite the opposite. Here, a 70 percent rating is assigned to the Veteran to compensate for his significant social and occupational impairment, and such a rating contemplates the inability to establish and maintain effective relationships. Accordingly, a total disability rating for PTSD is not found to be warranted. Effective Date The Veteran is seeking an earlier effective date prior to February 17, 2015 for the 70 percent rating for his PTSD. An increased rating may be awarded up to one year prior to receipt of the claim if the evidence shows an increase in disability was factually ascertainable during that period. 38 U.S.C. § 5110 (b)(3); 38 C.F.R. § 3.400(o). In this case, the Veteran’s claim for an increased rating was received on February 17, 2015 and a review of all evidence of record dating back to February 17, 2014 is appropriate to determine when an increase in disability was “factually ascertainable” in terms of meeting or approximating the criteria for a higher rating. See Hazan v. Gober, 10 Vet. App. 511 (1992). The Veteran’s representative argued that the symptoms of Veteran’s PTSD clearly worsened during the one year period prior to the filing of his claim for increased rating, but she failed to point to any specific piece of evidence that supported such an assertion, and a review of the record during this period does not reveal any evidence which makes it “factually ascertainable” that the Veteran’s PTSD symptoms had worsened during this period. Accordingly, an earlier effective date prior to February 17, 2015 for the assignment of the 70 percent rating for PTSD is not warranted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Qun Wang, Associate Counsel