Citation Nr: 18157886 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-62 292 DATE: December 13, 2018 ORDER Entitlement to service connection for bronchial and respiratory problems is denied. Entitlement to service connection for neurological condition (also claimed as twitching and finger numbness) is granted on the basis of being an undiagnosed illness. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a bronchial or respiratory disability attributable to active service. 2. The preponderance of the evidence supports the finding of an undiagnosed neurological illness consisting of twitching and finger numbness. CONCLUSIONS OF LAW 1. The criteria for service connection for a bronchial and respiratory disability have not been met. 38 U.S.C. § 1110, 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 2. The criteria for entitlement to service connection for a neurological condition have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from October 1998 to September 2014. His DD Form 214 confirms service in Southwest Asia. This matter comes before the Board on appeal from a July 2015 rating decision of the VA Regional Office (RO) in San Diego, California. Service Connection Applicable laws and regulations 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 active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including sensorineural hearing loss, will be presumed if the diseases manifest to a compensable degree within one year following active military service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). Additionally, service connection for Persian Gulf War Veterans may be established based upon the “Persian Gulf War Veterans’ Benefits Act.” This Act authorizes VA to compensate any Gulf veteran suffering from a “qualifying chronic disability,” resulting from an undiagnosed illness or combination of undiagnosed illnesses, appearing either during active duty in the Southwest Asia theater of operations during the Gulf War, or to a degree of 10 percent or more within a presumptive period following service in the theater. Section 202 of the “Veterans Education and Benefits Expansion Act of 2001” expanded the definition of “qualifying chronic disability” to include (1) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms; and (2) any diagnosed illness that the Secretary of the VA determines in regulations warrants a presumption of service-connection. To fulfill the requirement for chronicity, the claimed illness must have persisted for a period of 6 months. The 6-month period of chronicity is measured from the earliest date on which all pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317. Entitlement to service connection for bronchial and respiratory problems The Veteran contends that he suffers from a bronchial or respiratory problem due to his active service. The Veteran’s service treatment records (STRs) are negative for complaints, treatment, or diagnosis of bronchitis or persistent respiratory problems. STRs do reflect treatment in February 2013 for upper respiratory infection, but a March 2013 x-ray of the chest was negative. See February 2013 STRs; February 2016 Statement of the Case (SOC). In the Veteran’s June 2014 separation examination, the Veteran’s examiner noted that the Veteran expressed concerns with coughing up blood, wheezing, and chronic coughs consistent with Upper Respiratory Infection (rhinitis). See June 2014 Separation Examination. The Veteran stated he suffered from colds and coughs frequently and for extended duration; however the Veteran also reported being presently in good health at the time of the examination and made no complaints of a respiratory ailment. Id. During the Veteran’s May 2015 VA examination for respiratory conditions, the examiner reported that he did not have a current respiratory condition or disability. The upper respiratory infection the Veteran has suffered from in 2013 was found to have resolved, and the Veteran did not remember having a respiratory condition in service. Chest x-rays were negative for signs of bronchitis or a respiratory condition. Consequently, the examiner stated that it was less likely than not that the Veteran currently suffered from a respiratory condition. Additionally, the examiner stated that the Veteran’s respiratory condition did not impact his ability to work. The examiner stated unambiguously that the Veteran “less likely as not has a disability pattern.” During the Veteran’s June 2015 Gulf War VA examination, the Veteran denied any current respiratory condition, and his examination was normal. The Veteran did not have a history of bronchiectasis and the examiner stated that the Veteran had never been diagnosed with a respiratory condition. Additionally, the examiner stated that he concurred with the May 2015’s examiner’s findings and conclusions. The Veteran’s post-service VA treatment records contain a treatment plan for contact dermatitis and an upper respiratory infection in March 2017. See March 2017 VA treatment records. In the Veteran’s March 2015 Notice of Disagreement (NOD), the Veteran contends that his bronchial or respiratory condition is the result of environmental exposure. He also contends that he did suffer from a medical disability during service but did not report it due to the military culture of enduring injuries and illnesses while deployed. In considering the Veteran’s contentions, the Board notes that he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to a chronic disability or the onset date of such disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His lay contentions are thus of markedly lower probative value than, and are outweighed by, the May 2015 and June 2015 VA examination opinions. The Board has considered this case in light of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In Saunders, the United States Court of Appeals for the Federal Circuit (Federal Circuit) concluded that “pain is an impairment because it diminishes the body’s ability to function, and that pain need not be diagnosed as connected to a current underlying condition to function as an impairment.” Id. at 1364. “[A] physician’s failure to provide a diagnosis for the immediate cause of a veteran’s pain does not indicate that the pain cannot be a functional impairment that affects a veteran’s earning capacity.” Id. at 1367. Ultimately, the Federal Circuit in Saunders held that, to establish the presence of a disability, a veteran will need to show that his or her pain reaches the level of functional impairment of earning capacity. Id. at 1368. That having been noted, the Board finds the present case to be readily distinguishable from Saunders. The Veteran’s May 2015 VA examination found no bronchial or respiratory condition, and the examiner stated that the Veteran’s ability to work was not affected. Consequently, the complete dearth of objective examination findings of respiratory conditions weighs strongly against a finding of pain or comparable symptomatology that reaches a level of functional impairment of earning capacity. The Board is aware that 38 C.F.R. § 3.317 is intended to contemplate undiagnosed illnesses, but this provision still contains a requirement of chronicity. In this case, the examination findings and, indeed, the Veteran’s own statements tend to weigh heavily against a finding of chronicity (which is not the case with the claimed neurological disorder, as described and distinguished below). Accordingly, service connection for a respiratory condition must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Entitlement to service connection for neurological condition (also claimed as twitching and finger numbness) The Veteran contends that he suffers from a neurological condition, claimed as twitching and finger numbness, as a result of active service. The Veteran’s STRs are negative for complaint, treatment, or diagnosis of a neurological condition. During the Veteran’s March 2014 separation examination, the examiner noted no neurological conditions, and the Veteran did not mention any current neurological conditions or disabilities. In the Veteran’s March 2015 Notice of Disagreement (NOD), he contended that his neurological condition was incurred during or as a result of his active service. In considering the Veteran’s contentions, the Board notes that he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to a diagnosis or the onset date of such diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His lay contentions are thus of markedly lower probative value than, and are outweighed by, the May 2015 and June 2015 VA examination opinions. During the Veteran’s May 2015 for peripheral nerves, the examiner stated that the Veteran did not have a peripheral nerve condition or peripheral neuropathy; however the Veteran did exhibit symptoms attributable to a peripheral nerve condition. The Veteran exhibited mild paresthesias in his right and left upper extremities and left lower extremity. Additionally, the Veteran exhibited mild numbness in his right and left upper extremity and left lower extremity. The examiner also indicated that the Veteran had decreased sensation for light touch in his right and left hands or fingers. The Veteran reported intermittent numbness and tingling in the left first digit and bilateral hands, however the examiner stated that the Veteran’s upper and lower extremities’ nerves were not affected, and the Veteran’s ability to work was not impacted. The examiner concluded that there was insufficient evidence to support a clinical diagnosis. At the same time, the examiner specifically stated that the Veteran’s “disability pattern is at least as likely as not an undiagnosed illness.” The Board is aware that the Veteran does not currently have a diagnosed condition of the neurological system, claimed as twitching and finger numbness. However, this claim must also be considered under 38 C.F.R. § 3.317, and in this regard it is readily distinguishable from the respiratory claim described above. With the respiratory claim, the examiner explicitly stated that the Veteran less likely than not had a disability pattern. With the present claim, however, the examiner stated that the Veteran’s “disability pattern is at least as likely as not an undiagnosed illness.” This statement suggests chronicity of the type of undiagnosed illness disorder that 38 C.F.R. § 3.317 was intended to contemplate. For this reason, the claim is granted under that section. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Evan Thomas Hicks