Citation Nr: 18152082 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-49 132 DATE: November 20, 2018 ORDER Entitlement to service connection for joint pain, to include as due to a medically unexplained chronic multi-symptom illness or an undiagnosed illness, is denied. Entitlement to service connection for muscle pain, to include as due to a medically unexplained chronic multi-symptom illness or an undiagnosed illness, is denied. Entitlement to service connection a respiratory condition, to include as due to a medically unexplained chronic multi-symptom illness or an undiagnosed illness, is denied. Entitlement to service connection for a gastrointestinal condition, to include difficulty swallowing, to include as due to a medically unexplained chronic multi-symptom illness or an undiagnosed illness, is denied. Entitlement to service connection for migraine headaches, to include as due to a medically unexplained chronic multi-symptom illness or an undiagnosed illness, is denied. FINDINGS OF FACT 1. The Veteran is not shown by the probative and competent evidence of record to have a current joint pain disability, to include as a result of a medically unexplained chronic multi-symptom illness or an undiagnosed illness, and/or as aggravated by exposure to hazardous chemicals, that was either caused or aggravated by service. 2. The Veteran is not shown by the probative and competent evidence of record to have a current muscle pain disability, to include as a result of a medically unexplained chronic multi-symptom illness or an undiagnosed illness, and/or as aggravated by exposure to hazardous chemicals, that was either caused or aggravated by service. 3. The Veteran is not shown by the probative and competent evidence of record to have a current respiratory disability, to include as a result of a medically unexplained chronic multi-symptom illness or an undiagnosed illness, and/or as aggravated by exposure to hazardous chemicals, that was either caused or aggravated by service. 4. The Veteran is not shown by the probative and competent evidence of record to have a current gastrointestinal disability, to include difficulty swallowing, to include as a result of a medically unexplained chronic multi-symptom illness or an undiagnosed illness, and/or as aggravated by exposure to hazardous chemicals, that was either caused or aggravated by service. 5. The Veteran is not shown by the probative and competent evidence of record to have a current migraine headache disability, to include as a result of a medically unexplained chronic multi-symptom illness or an undiagnosed illness, and/or as aggravated by exposure to hazardous chemicals, that was either caused or aggravated by service. CONCLUSIONS OF LAW 1. The criteria for service connection for joint pain are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.317. 2. The criteria for service connection for muscle pain are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.317. 3. The criteria for service connection for a respiratory condition are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.317. 4. The criteria for service connection for a gastrointestinal condition, to include difficulty swallowing, are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.317. 5. The criteria for service connection for migraines headaches are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1986 to September 1986, and from December 1990 to May 1991. 1. Entitlement to service connection for joint pain, to include as due to a medically unexplained chronic multi-symptom illness or an undiagnosed illness 2. Entitlement to service connection for muscle pain, to include as due to a medically unexplained chronic multi-symptom illness or an undiagnosed illness 3. Entitlement to service connection a respiratory condition, to include as due to a medically unexplained chronic multi-symptom illness or an undiagnosed illness 4. Entitlement to service connection for a gastrointestinal condition, to include difficulty swallowing, to include as due to a medically unexplained chronic multi-symptom illness or an undiagnosed illness 5. Entitlement to service connection for migraine headaches, to include as due to a medically unexplained chronic multi-symptom illness or an undiagnosed illness The Veteran served in Spain and Egypt, and served for a two-week period in Saudi Arabia. The Veteran contends that her current muscle pain, joint pain, respiratory condition, difficulty swallowing, and migraine headaches are related to exposure to environmental hazards during her service in Southwest Asia. Duties to Notify and Assist VA’s duty to notify was satisfied by a letter in April 2014. 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has also satisfied its duty pursuant to 38 U.S.C. § 5103A and 38 C.F.R. § 3.159(c) to assist the Veteran. The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran’s available service treatment records, service personnel records, VA and private medical records, and the Veteran’s statements. The Veteran has submitted statements in December 2015, January 2016 and February 2016 indicating that her VA examinations were inadequate. Upon review of the VA examination reports, the Board finds that the VA examinations and medical opinions of record are adequate because they were performed and prepared by a medical professional, and were based on thorough examination results of the Veteran, and also reported findings pertinent to rate the claim for service connection and an increased evaluation. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that VA must provide an examination that is adequate for rating purposes).   Legal Criteria Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) 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 or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d at 1372. The law provides compensation for Persian Gulf veterans suffering from a chronic disability resulting from an undiagnosed illness or medically unexplained chronic multi-symptom illness that became manifest during active duty in the Southwest Asia theater of operations or became manifest to a compensable degree within the prescribed presumptive period. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. That is, if not manifest in service, the claimed chronic disability must have been manifest to a degree of 10 percent or more by December 31, 2016. 38 C.F.R. § 3.317(a)(1)(i). See also 77 Fed. Reg. 63,225- 63,227 (October 16, 2012) (final rule). Effective March 1, 2002 and again October 7, 2010, the law affecting compensation for disabilities occurring in Persian Gulf War Veterans was amended. 38 U.S.C. §§ 1117, 1118. Per these changes, the term ‘qualifying chronic disability’ was revised to mean a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; or (B) a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317 (a)(2)(i). If probative evidence exists that the Veteran’s disability pattern is either (1) an undiagnosed illness or (2) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, including but not limited to, chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders (excluding structural gastrointestinal diseases), then service connection must be granted for a Gulf War illness. See 38 C.F.R. § 3.317 (a)(2)(i) and (ii). For purposes of this presumption, 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 demonstration of laboratory abnormalities. Chronic multi-symptom illnesses 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). Regulations clarify that there must be “objective indications of a qualifying chronic disability,” which 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. 38 C.F.R. § 3.317 (a)(1) and (3). A disability is considered “chronic” if it has existed for six months or more or if the disability exhibits intermittent episodes of improvement and worsening over a six-month period. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317 (a)(4). Signs or symptoms which may be manifestations of an undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, fatigue, unexplained rashes or other dermatological signs or symptoms, headaches, muscle pain, joint pain, neurological 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). With claims for service connection for a qualifying chronic disability under 38 C.F.R. § 3.317, the veteran is not required to provide competent evidence linking a current disability to an event during service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). That is, under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, the symptom, which is capable of lay observation, is presumed to be related to service, and unlike a claim of “direct service connection,” VA cannot impose a medical nexus requirement. Further, lay persons are competent to report objective signs of illness such as joint pain or fatigue. Id. at 9-10. If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. VAOPGCPREC 8-98 (1998), 63 Fed. Reg. 56703 (1998). VA Medical Examinations and Opinions In June 2014, the Veteran was provided with a Gulf War General Medical Examination. The Veteran reported symptoms including skin disease, respiratory conditions, esophageal disorders, a cervical spine condition, and a condition of the elbow and forearm, knee and lower leg, and wrist. The examiner noted the Veteran’s history of service in Saudi Arabia as an aircraft mechanic, which included exposure to aircraft fuel, cleaning solvents, sand storms and loud noise, but no specific injury or illness. After an examination and review of the medical history, the examiner found no diagnosed illnesses for which no etiology was established. The examiner also found no signs or symptoms that may represent an undiagnosed illness or diagnosed medically unexplained chronic multi-symptom illness. Regarding her gastrointestinal condition, the Veteran reported pain in the upper third of her sternum with eating which began years ago. The examination did not find evidence of reflux. The examiner noted difficulty swallowing in a November 2012 medical record. At that time, it was felt the issue was related to congenital cervical stenosis, and aggravated by a motor vehicle accident and subsequent neck injury in 2009. Regarding her muscle and joint pain, the Veteran denied injuries while deployed to Saudi Arabia. The examiner noted significant documentation of right hip pain after a 2009 motor vehicle accident, along with subsequent neck pain which required fusion of the C3 through C7 vertebrae. The medical records also noted a diagnosis of low back pain strain and sciatica for which the Veteran was sent to physical therapy. Based on a review of the evidence, the examiner found that it is not likely any muscle injury or joint pain is undiagnosed, given the documentation of potential injury and surgery. The examiner explained that with 20 years of clinical studies since the Persian Gulf War, there is no evidence that potential environmental exposure would cause joint pain. Regarding her headaches, the examiner noted that the Veteran has treatment for migraines, a clearly diagnosed condition, which have decreased in severity. The examiner cited a neurology report indicating that the headaches were also aggravated by neck position, secondary to the cervical spine condition. The Veteran reported that her current headaches are more related to sinus issues. The examiner concluded that all the Veteran’s potential triggers, including poor sleep, are clinically-evidenced aggravating factors for headaches, and the headaches are not likely related to any potential environmental exposure. Thus, the headaches in this case are not undiagnosed but have several identified potential triggers. In February 2016, the Veteran was provided with a VA respiratory condition examination. The Veteran reported treatment in the 1990’s for shortness of breath with running. The examiner noted a diagnosis of asthma, with a date of diagnosis between 2004 and 2008. The examiner reviewed the Veteran’s medical history, including a 2015 chest x-ray, which was negative, and conducted pulmonary function testing. The examiner found that the Veteran does not have multiple respiratory conditions, and that the Veteran’s respiratory condition does not impact her ability to work. The examiner noted that the veteran had a very brief exposure time in Saudi Arabia of 2 weeks. The examiner noted that the length of exposure can play a role in the development of a respiratory condition. As this exposure in Southwest Asia is relatively brief, the examiner found it is less likely as not to have played a significant role in causing her current respiratory condition or sinus condition. The examiner considered lay statements indicating that the Veteran’s asthma was related to service. However, the examiner found insufficient evidence of diagnosis or treatment for a chronic respiratory condition for years after the exposure period. The examiner concluded that it is less likely as not that her asthma was caused by a remote, brief exposure period, as it would have to have begun in close proximity to the exposure. The examiner found that the Veteran’s asthma is more likely than not related to allergies that have been documented in recent years, and a familial tendency toward asthma, including the Veteran’s children. The examiner noted that asthma often runs with allergies; the two are often interconnected when familial. In February 2016, the Veteran was provided with a VA headache examination. The examiner reviewed the Veteran’s medical history and noted a diagnosis of migraine, including migraine variant, in 2002. The Veteran reported a history of migraine headaches, which she contends were due to chemical exposure during service or secondary to persistent depressive disorder with panic. After a review of the record and an in-person examination, the examiner opined that it is less likely as not that the Veteran’s headaches were either caused by or permanently aggravated beyond their normal progression by chemical and sand exposure during the service, or caused or aggravated by the Veteran’s depressive disorder with panic. The examiner reasoned that the Veteran clearly stated onset of headaches in 1985, preceding active service. Also, the frequency and severity of the Veteran’s migraines have not changed since the onset, which disproves aggravation by depression or exposure to chemicals or sand during service. Since the severity and frequency of migraine have not changed from the onset there is no evidence that there is any progression or aggravation of migraine. In February 2016, the Veteran was provided with a VA Sinusitis, Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx examination. The examiner noted a 2004 diagnosis of allergic rhinitis. Upon examination, the Veteran’s throat was clear. The examiner found no evidence of any other nose, throat, larynx, or pharynx condition. Lay Statements The Veteran has submitted lay statements to support her claims of service connection. In July 2013, the Veteran’s husband wrote that she has suffered from worsening upper respiratory issues since they met in 1995. The husband noted issues with swallowing and choking, which have developed since he knew the Veteran. The husband has also observed that the Veteran has chronic muscle soreness and pain in her hips, shoulders, and joints. The husband noted the Veteran’s chronic headaches which can develop into migraines and impact her life for days. In July 2013, a co-worker who served with the Veteran submitted a statement confirming the Veteran’s in-service exposure to various toxic materials. The co-worker stated that they were exposed to jet fuel, hydraulic fluid, cleaning agents, and asbestos during service. The Board notes that the VA considers this Veteran to be exposed to burn pit toxins and high levels of particulate matter. In September 2013, the Veteran’s parents submitted a statement on her behalf. The parents noted that the Veteran returned from her deployment to Southwest Asia with skin discoloration, weight loss, and exhaustion. They noted that the Veteran developed a cough despite not smoking. They also observed that the Veteran experienced severe headaches. While the Veteran was in-service, the parents noted that the Veteran’s uniform would have stains and odor of toxic chemicals. Analysis The Board has considered the lay statement submitted on the Veteran’s behalf. Although these statements establish that the Veteran suffers from current disabilities, and was exposed to environmental hazards in service, the statement do not provide a nexus between the Veteran’s current disabilities and any in-service event or injury. The Board acknowledges the Veteran’s belief that her joint pain, muscle pain, headaches, respiratory condition, and gastrointestinal disorder are related to service. The Veteran is competent to provide testimony concerning factual matters of which she has first-hand knowledge (i.e., experiencing symptoms either in service or after service). See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, as a layperson without the appropriate medical training and expertise, the Veteran is simply not competent to provide a probative opinion on a complex medical matter, such as an etiological relationship between any current disability and military service or a service-connected disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The June 2014 VA Gulf War examiner reviewed the Veteran’s claims file, including service treatment records, in arriving at the conclusion that the Veteran did not have an undiagnosed illness or diagnosed medically unexplained chronic multi-symptom illness. The February 2016 VA examiners, who provided a Respiratory Condition examination, Sinusitis, Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx examination, and Headache examination, all conducted in-person clinical evaluations and reviewed the Veteran’s record of treatment in arriving at their conclusions. These examiners considered all pertinent and available medical facts to which the Veteran is entitled in forming his opinion. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Further, a complete and thorough rationale was rendered for each of the opinions provided. Therefore, the Board places high probative weight on the opinions of the June 2014 and February 2016 VA examiners. In sum, the competent evidence of record weighs against the Veteran’s assertion that her muscle pain, joint pain, respiratory condition, headaches, and difficulty swallowing are an undiagnosed illness or diagnosed medically unexplained chronic multi-symptom illness, or otherwise related to the Veteran’s service, to include exposure to environmental hazards such as chemicals. The VA examiners have found that the Veteran’s muscle pain, joint paint, headaches, and difficulty swallowing conditions are due to a congenital defect of the cervical spine, which was aggravated by a motor vehicle accident and surgical repair. The VA respiratory condition examiner found no evidence to support that the Veteran’s asthma was related to exposure to environmental hazards in-service. Although grateful for the Veteran’s honorable service, the Board concludes that the preponderance of the evidence is against the claims for service connection and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Casey, Associate Counsel