Citation Nr: 18154260 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 13-03 034 DATE: November 29, 2018 ORDER Entitlement to service connection for a respiratory disorder, to include as a result of service in the Persian Gulf War and under 38 C.F.R § 3.317 as an undiagnosed illness or chronic multisymptom illness and as secondary to service-connected posttraumatic stress disorder (PTSD), is denied. FINDINGS OF FACT 1. A chronic respiratory disorder did not result from an undiagnosed illness that was shown during active service; the evidence is against finding that a chronic respiratory disability is related to active service or events therein. 2. A chronic respiratory disorder is not caused or permanently aggravated by service-connected PTSD. CONCLUSION OF LAW The criteria for entitlement to service connection for respiratory disorder are not met. 38 U.S.C. § 1110, 1111, 5107(b); 38 C.F.R. § 3.102, 3.159, 3.303, 3.304, 3.310, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1972 to April 1980, November 1990 to June 1991, and from November 2006 to March 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in St. Petersburg, Florida. This matter was previously before the Board in February 2016 and February 2018, when the Board remanded the issue for further development, to include scheduling the Veteran for a VA examination. There has been substantial compliance with both remand orders and the Board may therefore proceed with a determination of the issue on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran and his spouse testified before the undersigned Veterans Law Judge during an August 2015 hearing. A transcript of that hearing is associated with the Veteran’s claim file. The Veteran contends that his respiratory disorder is due to his exposure to toxic chemicals as a result of burn pits, sand storms, sarin gas, and oil fires during his service in the Persian Gulf Wars, to include service in Iraq. 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 service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a claimant 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may also be established for a chronic disability manifested by certain signs or symptoms which became manifest either during active 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, 2021, and which, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1); 81 FR No. 200, pp. 71382-71384 (October 17, 2016). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): an undiagnosed illness; the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) Chronic fatigue syndrome; (2) Fibromyalgia; (3) Functional gastrointestinal disorders; 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 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). 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). “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). 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. 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). A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from part 4 of this chapter for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. 38 C.F.R. § 3.317(a). A disability referred to in this section shall be considered service connected for purposes of all laws of the United States. 38 C.F.R. § 3.317(a). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom 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 (13) Menstrual disorders. 38 C.F.R. § 3.317(b). Compensation shall not be paid under this section if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran’s most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the Veteran’s own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). The term “Persian Gulf Veteran” means a Veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(d). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b). Turning to the evidence of record, a review of the medical treatment records show that the Veteran was diagnosed with chronic bronchitis in 2010. Therefore, the first element of service connection has been met. The Veteran’s official military personnel records show that he served in the Southwest Asia Theater of operations in January to May of 1991 and from December 2007 to February 2009. Thus, the Veteran is a Persian Gulf War Veteran and his exposure to environmental hazards in the Persian Gulf is conceded. The question before the Board is whether there is a nexus between his claimed disorder and the in-service disease or injury. In this regard, the Veteran asserts that his respiratory condition is proximately caused by exposures from environmental hazards during service in Southwest Asia. The Veteran’s service treatment records are silent as to any respiratory condition. The Veteran’s Post-Deployment Health Assessment of February 2009 was silent for complaints of respiratory symptoms. He was seen at Leesburg Regional Medical Center in April 2009 for shortness of breath and also at Jordan Hospital in June 2009 for complaints related to trouble breathing. The Veteran was afforded a VA general medical examination in October 2009, conducted within a year of release from active service. The VA examiner stated that since the Veteran did not report for the diagnostic study requested, there was no objective evidence of an active pulmonary disease and that a more precise diagnosis cannot be rendered as there is no objective data to support a more definitive diagnosis. He was again hospitalized at the Villages Regional Hospital in February 2010 and was noted to have decreased lung volumes and the bronchoscopy showed no endobronchial disease and few findings in the airway to suggest chronic bronchitis. February 2010 VA treatment records from Gainesville show that the Veteran complained of dry cough. Pulmonary function tests (PFTs) showed no asthma or chronic obstructive pulmonary disorder (COPD) and was given empiric “asthma” treatment to see if was effective. In December 2015, the Veteran submitted a nexus statement from private provider, Dr. J.M.B., which stated that “based on the Veteran’s exposure to burn pits, oil fumes, insecticides, sand storms, sarin gas, nuclear waste in Iraq and Kuwait; “yellow” dust in Korea, has developed pulmonary interstitial fibrosis which is a result of his progressive shortness of breath on evidence of CT-scan results.” PFT results from Dr. C. in February 2016 show normal results with no restrictions. The Veteran was diagnosed with chronic cough and shortness of breath. Private treatment records from Dr. F. in March 2016, indicated that PFT was within normal limits and did not suggest reactive airways dysfunction syndrome (RADS) or bronchiolitis or other abnormality. Patient’s examination, history and presentation suggest his respiratory symptoms are from bronchitis from prior irritant exposure. Also, given he has evidence of pulmonary congestion on his last chest x-ray (per report) and dilated left atrium on TTE, diastolic dysfunction could be contributing to his respiratory symptoms as well. Per the February 2016 Board remand directives, the Veteran was examined for a respiratory condition in May 2016. The VA examiner provided a diagnosis of chronic bronchitis, per a bronchoscopy from 2010. The VA examiner stated that PFTs are consistency normal which excludes COPD and emphysema as well as pulmonary fibrosis. She was not able to provide an opinion without resorting to mere speculation regarding the Veteran’s chronic bronchitis due to the Veteran’s service in the Persian Gulf and the Republic of Iraq. The rationale provided by the examiner was: The Shands/UF Pulmonary specialist stated: “History and presentation suggest his respiratory symptoms are from bronchitis from prior irritant exposure.” She stated “suggests” is a word that acknowledges the possibility that the bronchitis is due to multiple military exposures but does not state with any certainty that it is so. A CT chest scan was completed by Lake Medical Imaging in November 2016, with an impression of a pleural based ground glass density at the posterior right lower lobe, more likely inflammatory/infectious than neoplastic. The Veteran was examined again in May 2017, as the prior VA examination from February 2016, was not completed by a pulmonologist, as per the remand directive. The VA examiner provided a diagnosis of chronic cough and stated that it is more likely than not and within a reasonable degree of medical certainty that the Veteran does not have COPD, emphysema, pulmonary fibrosis or asthma. He also further explained that private physician, Dr. J.M.B. clearly inappropriately diagnosed the Veteran with pulmonary fibrosis. The VA examiner noted that the private physician’s conclusion was reached based on the description of the exposure as reported by the Veteran. He stated that a review of the medical literature suggests that the interpretation of self-reported exposures during the Persian Gulf War should be assessed with caution (Environmental Research Section A 81, 195-205) (1999) and that Dr. J.M.B. offers no biological plausible mechanism as to how any of the reported exposures can result in pulmonary fibrosis. The Veteran’s primary complaint is dry cough and shortness of breath. The VA examiner further provided an explanation that chronic bronchitis is defined as a chronic productive cough for three months in each of two successive years in patients who have other causes of chronic cough and bronchiectasis excluded (GOLD 2017). Dr. S. and Dr. F. concluded following their evaluation in March 2016, that the Veteran suffers from “chronic bronchitis secondary to inhalational exposures.” The VA examiner indicated that he disagrees with this assessment as the Veteran does not meet the minimum definition for chronic bronchitis. A review of the records dating back to 2009 when he left the Army reveal his cough is mostly dry and non-productive. Further, they offer no description of any exposure and no biologically plausible mechanism to explain how any of the listed exposures can result in chronic bronchitis. The VA examiner stated that based on the reported exposure by the Veteran, the complaints at the time of his reported exposures dating back to 2009 to present, and the examiner’s review of the medical records including all objective diagnostic testing including but not limited to chest x-rays, CT scans, and PFTs, he concludes within a reasonable degree of medical certainty that there is no evidence that the Veteran was exposed to toxic concentrations of an unknown substance thought to be oil fire or burn pit smoke, sand/dust or rocket explosions that would result in chemical pneumonitis, chronic bronchitis, pulmonary edema, RADS, or Adult Respiratory Distress Syndrome (ARDS). The VA examiner stated that if we are to presume that the Veteran was exposed to sarin gas, we would not expect him to develop respiratory problems unless the exposure resulted in severe neurologic impairment causing diaphragmatic paralysis and respiratory failure. When inhaled in low concentrations smoke from oil fires or burn pits is likely to be irritating and may produce transient eye, nose, throat and respiratory irritation in some individuals. In high concentrations depending on where the individual is relation to the fire and in isolated circumstances exposure may result in chemical pneumonitis, pulmonary edema, RADS, or ARDS. More likely than not, the Veteran was exposed to irritating concentrations from unknown substances such as smoke from oil fires or burn pits. Furthermore, the examiner stated that this assumption is purely speculative because the Veteran complained of cough several months after returning from active duty with no complaints of eye, nose or throat irritation (based on his testimony before the undersigned Veterans Law Judge) or at any other time (his primary complaint has been cough and shortness of breath). The same VA examiner also noted that there are several conditions that coexist with, exacerbate or mimic asthma such as rhinosinusitis, an allergic condition, gastroesophageal reflex disease (GERD), laryngeal/pharyngeal reflux (LPR), vocal cord dysfunction and muscle tension dysphonia. The VA examiner stated that the Veteran has pre-existing GERD, Barret’s Esophagus, and Schatsky’s ring, which required several esophageal dilatations in the past. The medical records indicate that he had ongoing reflux when he was seen by pulmonary in February of 2010. The Veteran reported drinking two shots of Jack Daniels a day while at Jordan Hospital which likely underestimated his actual intake per Dr. M. His continued and ongoing alcohol use is a known risk factor for GERD and is likely contributing to his ongoing and continued complaints of cough and shortness of breath. Further, the examiner explained that it is entirely biologically plausible that GERD and/or LPR are causing his ongoing and continuing complaints of cough since there are laryngeal receptors that respond to both mechanical and chemical (acid) stimuli. Other causes of cough and shortness of breath relevant to this case include an allergic condition, but the examiner stated that he has not seen any allergy testing to confirm or disprove this as a cause for his current and ongoing respiratory complaints. The VA examiner also stated that allergic or non-allergic rhinitis and post nasal drip are also possibilities. The examiner specified that there is no epidemiological, scientific or medical literature to suggest that any of the reported exposure listed by the Veteran are known to cause any of these illnesses. Finally, the VA examiner opined that it is more likely than not and within a reasonable degree of medical certainty the most likely reason for the Veteran’s subjective complaint of cough is related to pre-existing GERD, Barrett’s esophagus, Schatsky’s ring, ongoing alcohol abuse, LPR, which is exacerbated by his underlying anxiety disorder and PTSD. The examiner acknowledged the lay statements from the Veteran and the statements submitted by his friends and family. As rationale, the examiner stated that he believes these statements confirm his conclusions, that the Veteran continues to have coughing fits despite maximal treatment for asthma for more than eight to nine years as his condition is worsening according to the statements because his underlying pre-existing medical condition(s) or undiagnosed conditions(s), i.e. LPR, are not being treated correctly and possibly not treated at all. The Veteran submitted a respiratory examination from his private physician in September 2017. The physician provided diagnoses of asthma, COPD, and chronic bronchitis. However, there was no indication that the physician reviewed any medical records or the Veteran’s claims folder, nor was there any indication that the Veteran’s medical history, to include the LPR was considered. The examiner did not provide a medical opinion along with this exam. Therefore, the Board does not place high probative value on this examination. In February 2018, the Board remanded again for an additional examination, based on the May 2017 VA examination findings which noted a possibility that the respiratory condition could be related to his service-connected PTSD. The Board notes that while the Veteran is service connected for PTSD, he is not service connected for any related alcohol abuse. The VA examiner opined that the Veteran’s chronic bronchitis is less likely than not related to an undiagnosed or chronic multisymptom illness related to the Persian Gulf War as chronic bronchitis is a diagnosable illness and does not fall within the disability pattern of an undiagnosed illness nor a diagnosable but medical unexplained chronic multisymptom illness of unknown etiology. In providing this opinion, the VA examiner cited to several medical studies to include the National Academies/Institute of Medicine, “Update of Health Effects of Serving in the Gulf War, 2016,” which documents, “The committee finds that sufficient time has elapsed to determine that Gulf War Veterans do not have an increased incidence of circulatory, hematologic, respiratory, musculoskeletal, structural gastrointestinal, genitourinary, reproductive, and chronic skin conditions.” The VA examiner also provided an opinion that the evidence goes against an equal to or greater than fifty percent probability that chronic bronchitis is caused or permanently aggravated by service-connected PTSD/alcohol abuse. The examiner further explained that it is common medical knowledge that cough is a symptom in any lung condition-restrictive and obstructive. She further stated that “the Veteran has a diagnosis of chronic bronchitis as per bronchoscopy. People who have chronic bronchitis most often have a persistent cough. It can also cause shortness of breath. Veteran’s cough symptom is explained by his diagnosis of chronic bronchitis. Review of records show that on December 2009, the Veteran complained of persistent cough for four weeks. Note December 2009 documented “denies current drinking.” Therefore, alcohol use/abstinence had no effect on his symptom. Pulmonology service diagnosed “chronic bronchitis.” “There is no documentation, as per pulmonology, that the Veteran’s PTSD/alcohol use has caused, aggravated or contributed to his symptoms.” This VA examiner goes on to state as similarly to the previous VA examiner of May 2017, that documentation of “diastolic dysfunction” (pulmonary congestion on CXR and echo findings) could be contributing to his symptoms. She further stated that records show the Veteran has a history of GERD with Barrett’s and that Barrett’s esophagus is often diagnosed in people who have long-term GERD. The examiner specified that GERD is one of the common causes of a persistent cough. Both the May 2017 and August 2018 VA examiners opined that the Veteran’s respiratory condition is most likely attributed to a known cause, the pre-existing GERD and Barrett’s esophagus condition and not related to any environmental hazards from the Gulf War. As the Veteran’s GERD disability is not service-connected, the Veteran’s respiratory disability cannot be service-connected on a secondary basis as due to or aggravated by a GERD disability. In addition, the Veteran is not service connected for alcohol abuse and the Veteran’s respiratory disability cannot be service-connected on a secondary basis as due to or aggravated by alcohol abuse. The Board affords great probative weight to the findings of the VA examiners who provided the May 2017 and August 2018 medical opinions. Particularly the VA pulmonologist who provided the opinion in May 2017, carefully recited the relevant evidence, demonstrating that he had reviewed the Veteran’s history, statements, and assertions. The August 2018 VA examiner indicated that she had also reviewed the Veteran’s claim file and recited to relevant evidence. In assigning high probative value to these examiner’s opinions, the Board notes that the examiners reviewed the records, obtained a history from the Veteran, and conducted a complete examination. There is no indication that the examiners were not fully aware of the Veteran’s past medical history or that they misstated any relevant fact. Indeed, the examiners provided an exhaustive recitation of the record and fully supported their conclusions with specific citation to the record. To the extent the Veteran contends that his exposures during service are related to his current disability, the Board notes that while the Veteran is competent to attest to observable symptoms, such as shortness of breath, he has not been shown to possess the medical expertise to be deemed competent to associate his prior injury to his current disability. As neither the Veteran nor his representative are shown to have appropriate training and expertise, neither are competent to render a persuasive opinion as to such matters. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 n.4. (Fe. Cir. 2007). Such complex medical matters are within the province of trained medical professionals See Jones v. Brown, 7 Vet. App. 134, 137-138 (1998). Consequently, the Board finds the VA examiner’s opinions from May 2017 and August 2018 to be of greater probative value than the Veteran’s assertions to the contrary. The Veteran also submitted articles on studies relating a possible link between respiratory conditions and Gulf War exposure. As this study contains no information specific to the Veteran, it is of no probative value. See Wallin v. West, 11 Vet. App. 509, 514 (1998); Sacks v. West, 11 Vet. App. 314 (1998); Mattern v. West, 12 Vet. App. 222, 227 (1999). While the Board has considered the articles submitted by the Veteran, none are binding and do not control the outcome of this appeal; rather, the facts of this particular case are determinative. For the reasons expressed above, the Board finds that a preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a respiratory disability, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Kim, Associate Counsel