Citation Nr: 18153335 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 11-30 111 DATE: November 27, 2018 ORDER Service connection for a lung disorder is denied. FINDING OF FACT The Veteran’s respiratory symptoms, to include difficulty breathing and decreased stamina while exercising, are not part of an undiagnosed illness or medically unexplained chronic multisymptom illness, and have been attributed to aging, deconditioning, and dehydration, which have not been shown to be related to a disorder that had its onset during service or is otherwise related to service. CONCLUSION OF LAW The criteria for service connection for a lung disorder is not met. 38 U.S.C. §§ 1110, 1117, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2001 to June 2007 and from October 2007 to November 2010. His service included three tours of active duty in the Southwest Asia Theater of Operations during the Persian Gulf War. He is the recipient of numerous awards and decorations, to include the Combat Action Badge. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2013, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In August 2014, July 2016, and December 2017, the Board remanded the case for additional development and it now returns for further appellate review. 1. Entitlement to service connection for a lung disorder, to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C. § 1117. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). The record reflects that the Veteran is in receipt of the Combat Action Badge. As such, the provisions of 38 U.S.C. § 1154(b) are applicable in this case, which state, in pertinent part, that in any case where a veteran is engaged in combat during active service, lay or other evidence of service incurrence of a combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the Veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The Federal Circuit has held that the presumption found in § 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). The combat presumption, however, does not alleviate the requirement that the evidence show a current disability attributable to the past in-service disorders. See generally Clyburn v. West, 12 Vet. App. 296, 303 (1999). However, as will be discussed below, the Veteran does not contend, and the evidence does not suggest, that he incurred a lung disorder coincident with his combat service. Service connection may also be granted for a disability due to a qualifying chronic disability of a veteran who served in the Southwest Asia Theater of operations during the Persian Gulf War provided that such disability became manifest during either active service in the Southwest Asia Theater of Operations during the Persian Gulf War or to a degree of 10 percent or more, under the appropriate diagnostic code of 38 C.F.R. Part 4, not later than December 31, 2021, and by history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). In the instant case, the record reflects that the Veteran had service in Southwest Asia during the Persian Gulf War, to include in Iraq from February 2004 to August 2004; in Kuwait and Iraq from January 2006 to February 2007; in Iraq from December 2007 to January 2009, and, therefore, such laws and regulations are applicable to his claim. A chronic qualifying disability means a chronic disability resulting from an (A) undiagnosed illness; (B) the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317 (a)(2)(i). For the purposes of this section the term medically unexplained chronic multisymptom 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 multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). “Objective indications of 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. 38 C.F.R. § 3.317 (a)(3). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-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 undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to: (1) fatigue, (2) unexplained rashes or other dermatological signs or symptoms, (3) headache, (4) muscle pain, (5) joint pain, (6) neurological signs and symptoms, (7) neuropsychological signs or symptoms, (8) signs or symptoms involving the upper or lower respiratory system, (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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. However, when a preponderance of the evidence weighs against the claimant, the claim shall be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he has a lung disorder that had its onset during service. In the alternative, he alleges that his respiratory symptoms, to include difficulty breathing and decreased stamina while exercising, are manifestations of an undiagnosed illness or medically unexplained chronic multisymptom illness resulting from his service in Southwest Asia where he was exposed to environmental toxins, to include burn pits and smoke. The Veteran’s service treatment records from his first period of service are negative for any complaints, treatment, or diagnosis referable to a lung disorder, and all chest X-rays were negative. Between his two periods of service, the Veteran underwent a VA examination in September 2007 in order to ascertain the nature and etiology of his claimed lung disorder. At such time, he reported exposure to burning feces and trash, and smoke during his deployments to Southwest Asia. The Veteran denied all respiratory symptoms, but reported that he had slowed down in his 38-mile hike; however, he did not have any wheezing or breathing problems. Physical examination revealed no relevant findings and it was noted that September 2003, August 2005, and April 2007 chest X-rays were unremarkable. However, a pulmonary function test (PFT) was within normal limits with a very mild decrease in the FEV1 and FEV1/FVC percentage. The examiner ultimately rendered no diagnosis. In this regard, he indicated that no pulmonary complications were found at the current time, and there was no additional radiographic or clinical evidence to support a diagnosis. The Veteran’s service treatment records from his second period of service reflect that, in December 2009, he complained of nausea, shortness of breath, and weakness. He indicated that he had been feeling sick over the weekend with flu-like symptoms, but was not feeling any symptoms until after he crashed during physical training. Specifically, the Veteran reported that he was doing sprints and began to feel light-headed. He then vomited and blacked out. He indicated that he had a similar episode over the past summer. Upon physical examination, the Veteran did not have a temperature or signs of flu-like symptoms, but had a noticeably low blood pressure. He was still able to communicate clearly and perceptively despite stating that he cannot catch his breath. The assessment was dehydration. The remainder of the Veteran’s service treatment records are negative for any complaints, treatment, or diagnosis referable to a lung disorder, and all chest X-rays were negative. At a January 2011 VA examination, the examiner again noted the Veteran’s reported history regarding his in-service exposures as well as his report that he had no active disease. She further indicated that his pulmonary status at the examination was benign, his chest X-ray was negative, and he denied any relevant symptoms. The examiner acknowledged the Veteran’s report that, while he continued to run in 38 mile competitive hikes, he was slowing down to age rather than any respiratory or breathing issues. She further observed that PFTs and chest X-rays were all found to be normal; however, it appears that she was relying upon the aforementioned September 2007 test results. Nonetheless, the examiner found that no respiratory condition was found on examination. In light of the Veteran’s service in Southwest Asia, his reported symptoms of respiratory impairment, and the objective finding of very mild decrease in the FEV1 and FEV1/FVC percentage in September 2007, with no confirmed diagnosis, the Board remanded the case in August 2014 for a new examination with PFTs, and consideration of whether service connection is warranted on the basis of an undiagnosed illness. Thereafter, the Veteran was afforded another VA examination in March 2015. At such time, the examiner noted his reported symptoms and the nature of his service, reviewed the record, and conducted a physical examination with diagnostic testing. She then observed that the Veteran’s symptoms included decreased exercise tolerance due to shortness of breath since completing the second of this three tours in Iraq as well as an episode of syncope after exercise. Though he had no problems with usual daily activities and even some strenuous activities, he felt that his overall pulmonary reserve has decreased significantly since his service in Iraq and believes that such caused him to pass out after sprinting in 2009. The examiner noted that the Veteran attributed his symptoms to exposure to burn pits during his tours in 2004 and 2006-7. However, she also observed that the only objective data includes a chest X-ray, which the radiologist read as chronic pulmonary disease, but the examiner found that such only showed kyphosis, and PFTs that showed a mildly decreased FEF 25-75%, which could indicate a small airway obstruction, but the remainder of such was normal. The examiner further noted that the September 2007 PFTs showed mild restriction. The examiner opined that the Veterans increased dyspnea and syncope with strenuous activity could be due to a respiratory condition related to his exposure to burn pits or it could be due to aging and deconditioning. She noted that, though his symptoms were subtle, there are reports in the literature of other veterans with similar symptoms exposed to burn pits in Iraq who have significant pulmonary pathology. However, the subjects in that study underwent a much more extensive work-up than the Veteran and the limited data available in the instant case does not show any clear indication of a respiratory condition. Therefore, she concluded that it was less than 50 percent likely that the Veterans respiratory symptoms are related to his service. However, in July 2016, the Board found that the March 2015 VA examiner did not obtain all tests that might reasonably address the inquires noted in the August 2014 remand and, consequently, did not substantially comply with the prior remand directives. Consequently, the Veteran was afforded another VA examination in September 2016. At such time, the examiner again noted his reported symptoms and the nature of his service; reviewed the record, to include the aforementioned December 2009 service treatment record and all post-service diagnostic tests; and conducted a physical examination with diagnostic testing. In this regard, the current physical examination was unremarkable, chest X-ray showed normal lung findings, and PFTs were within normal limits in all aspects. Consequently, the examiner found that there was no medical, clinical, or diagnostic evidence to support a current or chronic respiratory/lung condition, diagnosis, or treatment and, thus, such was not incurred in or caused by the environmental exposures during service. In December 2017, the Board again remanded the claim as the September 2016 VA examiner did not address all of the inquiries from the July 2016 remand. Thereafter, in February 2018, the September 2016 VA examiner provided a detailed review of the record and offered an addendum opinion. Specifically, the examiner opined that there are no symptoms, abnormal physical findings, or abnormal laboratory findings related to the Veteran’s reported lung complaints that are attributable to a current chronic respiratory condition or diagnosis. Rather, all of the noted findings were more than likely attributable to unrelated aging, deconditioning, and dehydration. She further opined that there are no objective indications of a chronic disability based by the foregoing lung symptoms, abnormal physical findings, and abnormal laboratory test results that resulted from an undiagnosed illness, as established by history, physical examination, and laboratory tests that has either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. The examiner further opined that it is less likely than not that the Veteran’s lung symptoms, abnormal physical findings, and laboratory test results represent a medically unexplained chronic multisymptom illness. In this regard, the examiner opined that the very mild decrease in FEV1 and FEV1/FVC in September 2007 was more than likely of no medical significance and not caused by or the result of a chronic respiratory condition. In support of such determination, she noted that PFTs conducted in March 2015 and September 2016 revealed findings within normal limits, to include at FEV1 and FEV1/FVC. The examiner further addressed the literature cited by the March 2015 VA examiner that suggested a relationship between pulmonary disorders and exposures to environmental toxins in Southwest Asia. Specifically, she echoed the March 2015 VA examiner’s notation that the subjects in such study underwent a much more extensive work-up than the Veteran, and the Veteran’s symptoms were subtle. She also recited the Abstract Background from the study, which stated that “[i]n this descriptive case series, 80 soldiers from Fort Campbell, Kentucky, with inhalational exposures during service in Iraq and Afghanistan were evaluated for dyspnea on exertion that prevented them from meeting the U.S. Army’s standards for physical fitness,” but noted that the Veteran was found fit for duty without limitations following his reported symptoms in 2007 that had negative findings consistent with a chronic respiratory condition. Consequently, the examiner explained that the study documents that the veterans in the study and their symptoms clearly warranted a much more extensive work-up than the Veteran and, consequently, the study is irrelevant. The Board affords great probative weight to the VA opinions rendered in September 2016 and February 2018 as they are predicated on a review of the record, to include the Veteran’s service and post-service treatment records, and consideration of his statements as well as current medical literature. Further, the examiner provided a complete rationale, relying on and citing to the records reviewed, and offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). There is no medical opinion to the contrary. In reaching this decision, the Board has considered the Veteran’s statements in support of his claim. While he is competent to report his in-service and current respiratory symptoms, as well as the nature of his exposure to environmental toxins consistent with his service in Southwest Asia, the Board finds he is not competent to diagnose a current lung disorder or offer an opinion as to whether his symptoms are part of an undiagnosed illness or medically unexplained chronic multisymptom illness since he does not possess the requisite medical knowledge to address such matters. Specifically, the diagnosis and etiology of such claimed symptoms and disorder, to include whether such is related to a known clinical diagnosis or are part of an undiagnosed illness or medically unexplained chronic multisymptom illness related to any aspect of his military service, involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Therefore, as such is a complex medical question, the Veteran is not competent to offer an opinion as to the etiology of his claimed lung disorder, and, consequently, his opinion on such matter is afforded no probative weight. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, the Board finds that the Veteran’s respiratory symptoms, to include difficulty breathing and decreased stamina while exercising, are not part of an undiagnosed illness or medically unexplained chronic multisymptom illness, and have been attributed to aging, deconditioning, and dehydration, which have not been shown to be related to a disorder that had its onset during service or is otherwise related to service. Consequently, service connection for such disorder is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim for entitlement to service connection for a lung disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 8 U.S.C. 5107; 38 C.F.R. 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tiffany Alston, Associate Counsel