Citation Nr: 18151684 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 16-25 554 DATE: November 20, 2018 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. Entitlement to service connection for hypertension is denied. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s COPD did not have its onset during active service and was not caused by active service, to include service in Southwest Asia. 2. The Veteran’s hypertension did not have its onset during active service, did not manifest within one year of service, and is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to COPD have not all been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 2. The criteria for service connection for hypertension have not all been met. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. § 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1989 to October 1991. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). “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”- the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including hypertension, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112, (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). 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. Id. Here, however, the Veteran’s hypertension did not manifest until well after service, and there is no indication of this condition prior to, during, or within one year of service. VA regulations also provide that compensation will be paid for disability due to undiagnosed illness and medically unexplained chronic multi-symptom illnesses, including chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders, to a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability if that disability became manifest either during active service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021, and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1) (effective before and after Oct. 24, 2017). The term medically unexplained chronic multi-symptom illness means 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 demonstrations of laboratory abnormalities. Chronic multi-symptom illness of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to: (1) Fatigue, (2) Signs or symptoms involving skin, (3) Headache, (4) Muscle pain, (5) Joint pain, (6) Neurologic signs and symptoms, (7) Neuropsychological signs or symptoms, (8) Signs or symptoms involving the respiratory system (upper or lower), (9) Sleep disturbances, (10) Gastrointestinal signs or symptoms, (11) Cardiovascular signs or symptoms, (12) Abnormal weight loss, and (13) Menstrual disorders. 38 C.F.R. § 3.317(b). If signs or symptoms have been attributed to a known clinical diagnosis, service connection may not be provided under the specific provisions pertaining to Persian Gulf veterans. See VAOPGCPREC 8-98 (Aug. 3, 1998). “The very essence of an undiagnosed illness is that there is no diagnosis.” Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006); see also Gutierrez v. Principi, 19 Vet. App. 1, 10 (2004) (a Persian Gulf War veteran’s symptoms “cannot be related to any known clinical diagnosis for compensation to be awarded under section 1117”). However, the term “disability” for VA compensation purposes refers to the functional impairment of earning capacity rather than the underlying cause of the impairment and pain alone may be a functional impairment. See Saunders v. Wilkie, 887 F.3d 1356, 1364-68 (Fed. Cir. 2018) (indicating that the term “disability” refers to the functional impairment of earning capacity, rather than the underlying cause of the impairment, and pain alone may be a functional impairment). 1. Entitlement to service connection for COPD The Veteran contends that his COPD is related to service, to include as due to exposure to environmental hazards during his service in Southwest Asia. The Veteran’s corrected DD 214 indicates that he had service in Southwest Asia. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of COPD, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of COPD began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service treatment records (STRs) do not indicate complaints, treatment, symptoms, or diagnosis related to COPD. Private medical records include a March 2012 record indicating asthma/COPD and a July 2012 record indicating an assessment of COPD. VA treatment records from May 2016 indicate that the Veteran previously smoked one pack a day for 20 years. VA treatment records from May 2013 indicate that the Veteran received an assessment of COPD on May 3, 2013, and that the Veteran previously smoked a pack per day for 25 years. VA and private treatment records show the Veteran was not diagnosed with COPD until 2012, over twenty years after his separation from service. While the Veteran is competent to report symptoms related to COPD, he is not competent to determine that any symptoms were manifestations of COPD, nor is he competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran first filed his claim for COPD in June 2011, despite contending that his condition began in service, almost 20 years after separation from service in October 1991. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board acknowledges that in May 2016, the Veteran requested that he be afforded a new VA examination which considered and discussed “the intertwined nature of all his medical and psychiatric conditions” and “relevant medical literature.” However, the probative evidence of record does not indicate that his conditions are interrelated nor was any independent research or medical evidence submitted by the Veteran to indicate a relationship between his current conditions. The Board acknowledges that, to date, the Veteran has not been afforded a VA examination for his claimed COPD. While the Veteran has stated that his COPD is related to service, there is no competent evidence establishing that an event, injury, or disease occurred in service. Thus, a VA examination under the standards of McLendon is not warranted at this time. Based upon the evidence of record, the Board finds that the Veteran’s COPD did not manifest during service and that the preponderance of the evidence fails to establish that a present respiratory disorder is etiologically related to service. There is no competent evidence of any related symptoms or treatment during service or for more than 20 years after separation from service. There is no competent evidence attributing any chronic respiratory signs or symptoms to an undiagnosed illness or medically unexplained chronic multi-symptom illness nor to any other event, injury, or illness associated with service in Southwest Asia. For the foregoing reasons, the Board finds that the preponderance of evidence is against the Veteran’s claim of entitlement to service connection for COPD. Consequently, the benefit of the doubt doctrine does not apply, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for hypertension The Veteran contends that his hypertension is related to service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of hypertension, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of hypertension began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service treatment records (STRs) do not indicate complaints, treatment, symptoms, or diagnosis related to hypertension. VA and private treatment records show the Veteran was not diagnosed with hypertension until 2011, twenty years after his separation from service. While the Veteran is competent to report symptoms related to hypertension, he is not competent to determine that any symptoms were manifestations of hypertension, nor is he competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran first filed his claim for hypertension in June 2011, despite contending that his condition began in service, almost 20 years after separation from service in October 1991. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board acknowledges that, to date, the Veteran has not been afforded a VA examination for his claimed hypertension. While the Veteran has stated that his hypertension is related to service, there is no competent evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the Veteran qualifies. Thus, a VA examination under the standards of McLendon is not warranted at this time. For the foregoing reasons, the Board finds that the preponderance of evidence is against the Veteran’s claim of entitlement to service connection for hypertension. Consequently, the benefit of the doubt doctrine does not apply, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for PTSD is remanded. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low for the purposes of obtaining a medical opinion. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. Service connection for PTSD generally requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See Cohen v. Brown, 10 Vet. App. 128, 139-43 (1997); 38 C.F.R. § 3.304(f). The record indicates a psychiatric diagnosis of PTSD. A review of the record reveals that the Veteran detailed multiple stressful in-service incidents, including witnessing a vehicle accident resulting in the death of his friend and another incident where a friend was accidentally killed by a grenade. However, the Veteran’s reported stressors have not been verified, and he has not been afforded a VA psychiatric examination or opinion on this issue. As the record indicates the Veteran has current psychiatric diagnoses that may be associated with active service, a remand for examination and opinion is necessary. See 38 C.F.R. § 3.326; McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to a TDIU is remanded. The Board finds that, because a decision on the remanded issue of service connection for PTSD could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. Therefore, the appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, the claim for TDIU must be remanded. The matters are REMANDED for the following action: 1. Attempt to obtain additional information from the Veteran and corroborate the Veteran’s reported stressors through official sources, to include the Joint Services Records Research Center (JSRRC), as appropriate. If such information is unavailable and further attempts would be futile, such should be noted in a Memorandum of Unavailability associated with the claims file, and the Veteran should be so notified. 2. Ensure that the Veteran is scheduled for a VA examination by an appropriate examiner to determine the nature and etiology of any claimed acquired psychiatric condition, to include PTSD. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Identify all current psychiatric disorders. Provide a medical opinion as to whether it is at least as likely as not (50 percent or greater probability) that any identified psychiatric disorder had its onset during or was caused by the Veteran’s service, to include the traumatic events reported by the Veteran. If the examiner cannot provide the above requested opinion, he/she should explain why the requested opinion cannot be provided. If the examiner cannot provide the answer because further information is needed to assist in making the determination, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided. (Continued on the next page)   3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of TDIU. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Labi, Associate Counsel