Citation Nr: 1806770 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 06-31 769 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a chronic disability manifested by shortness of breath and fatigue. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Keyvan, Counsel INTRODUCTION The Veteran served on active duty from May 1979 to May 1982, in May 1992 and from February 2003 to July 2004, with additional service in the Reserves and National Guard. These matters come before the Board on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which, in pertinent part, denied the petition to reopen the claims for service connection non-Hodgkin's lymphoma (NHL) and hepatitis C, and further denied the claim seeking service connection for a disability manifested by shortness of breath and fatigue. In a decision issued in June 2009, the Board denied the Veteran's claims. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In March 2011, the Court issued a Memorandum Decision that vacated the June 2009 Board decision and remanded the matters on appeal. In March 2012 the Board remanded the claims for further development. In the March 2017 decision, the Board granted the petitions to reopen the claims seeking service connection for NHL and hepatitis C and remanded these matters for additional development. The Board also remanded the claim for service connection for a disability manifested by chronic shortness of breath and fatigue for additional evidentiary development. Following the March 2017 remand, and before the Veteran's claim was returned to the Board, by way of the October 2017 rating decision, the RO granted the claim seeking service connection for hepatitis C, and evaluated it as 10 percent disabling, effective March 9, 2005. The RO also granted the Veteran's claim for service connection for NHL, and evaluated it as noncompensably disabling, effective March 9, 2005. The Board finds that these grants of service connection constitute a full award of the benefits sought on appeal with respect to these issues. See Grantham v. Brown, 114 F. 3d 156, 1158 (Fed. Cir. 1997). The record on appeal contains no indication that the Veteran has appealed the downstream elements of effective date or initial rating for this disability; thus, these matters are not in appellate status. However, in the November 2017 Application for Disability Compensation and Related Compensation Benefits, the Veteran did file claims seeking higher ratings for his service-connected hepatitis C and his NHL. He also filed claims seeking a higher rating for his service-connected cirrhosis of the liver, as well as entitlement to service connection for neuropathy of the upper and lower extremities, neuropathy of the feet, depressive disorder, a chronic fatigue disorder, and disorder manifested by loss of taste, all of which to include as secondary to his service-connected NHL. The issue of entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has also been raised by way of the November 2017 letter issued by the Veteran's oncologist. Other than his claim for a chronic fatigue disorder (which has is currently on appeal and characterized as a chronic disability manifested by shortness of breath and fatigue, as reflected in the title page) these issues have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDING OF FACT The Veteran has not had a chronic disability manifested by shortness of breath and fatigue during any time from contemporaneous to when he filed his claim to the present. CONCLUSION OF LAW The criteria for service connection for a chronic disability manifested by shortness of breath and fatigue have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See generally, 38 U.S.C. §§ 5103, 5103A (West 2012); 38 C.F.R. § 3.159, 3.326 (2017). Pursuant to the March 2017 Board remand, the Veteran's medical records from the Social Security Administration (SSA) have been retrieved and associated with his claims file. In addition, the Veteran was afforded a VA examination in connection with his claimed disability in October 2017, the reports of which have been associated with the claims file. Based on a review of the record, the Board finds that the AOJ has substantially complied with the remand orders, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Analysis 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). Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2017). Service connection may also be established for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability which cannot be attributed to any known clinical diagnosis, but which instead resulted from an undiagnosed illness that 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, 2011. 38 C.F.R. § 3.317(a)(1) (2017). The Veteran contends that he developed a disability manifested by fatigue and shortness of breath as a result of his military service. From the outset, the Board notes that in relationship to the provisions for service connection of undiagnosed illnesses which may include symptoms such as fatigue, etc., a Persian Gulf Veteran is one who served in the Southwest Asia theater of operations during the Persian Gulf War, which is not the case herein. Review of the service treatment records reflects that the April 1979 enlistment examination was absent any evidence of a respiratory disorder, or a disability manifested by shortness of breath or fatigue. Although the Veteran was seen for various symptoms analogous to an upper respiratory infection throughout the years, to include a sore throat, chest congestion, a stuffy/runny nose, and cough related to a cold, there is no indication that those represented chronic conditions or did not resolve during his active service. Indeed, at the September 1988 examination, the clinical evaluation of the lungs and chest was shown to be normal, and the Veteran denied a history of respiratory problems, to include chronic cough, chronic/frequent colds, chest pressure, or shortness of breath, in his medical history report. The record reflects that the Veteran underwent a chest x-ray in November 2000 due to his history of lymphoma and shortness of breath, the results of which reflected the lungs to be clear and the heart to be normal. The x-ray report did not reveal any nodular findings and there was no evidence of lymph node enlargement on the lateral view. A March 2003 treatment report issued by the Veteran's private physician, J.B., M.D., reflects that the Veteran presented for an internal medical consultation, at which time, he expressed concerns about a non-productive cough of two days duration. During the evaluation, Dr. B. noted that the Veteran had a past medical history of chronic hepatitis since 2000, chest NHL status-post radiation therapy and 6 CHOP treatments, hypertension, hypercholesterolemia and alcohol dependence. The Veteran denied any history of tuberculosis, chronic obstructive pulmonary disease (COPD), and liver disease. Review of the respiratory system was negative for dyspnea on exertion, orthopnea, or chest pain. On physical examination of the respiratory system, the chest wall revealed symmetric expansion and was clear to auscultation with good breath sounds bilaterally. Based on his evaluation of the Veteran, Dr. B. assessed him with having acute bronchitis. A May 2003 treatment report issued by Dr. B. reflects that the Veteran presented for follow-up treatment for his cough, shortness of breath, and dyspnea upon exertion with wheezing. Physical examination of the Veteran's respiratory system was clear to auscultation and in the Impression/Medical Decision-making section, Dr. B. assessed the Veteran with having interferon-induced asthma. An October 2003 treatment report issued by Dr. B. reflects that the Veteran presented for a follow-up appointment, during which time, he continued to express his concerns about some chest tightness. Based on his evaluation of the Veteran, Dr. B. diagnosed him with having chronic hepatitis without cure, chest NHL stage 2, major depression, and various other disorders to include hypercholesterolemia, alcohol dependence, and mild hypothyroidism. The October 2004 SSA Disability Determination and Transmittal report reflects that the Veteran was assessed with having a primary diagnosis of affective disorder and a secondary diagnosis of chronic liver disease and cirrhosis. A May 2006 Report of Investigation Line of Duty and Misconduct Status reflects that in April 2004, the Veteran began experiencing chest pains during his training caused by previous illnesses and was placed on light duty indefinitely. In the Final Approval section, it was noted that the Veteran's chest and back pain were symptoms of his NHL. In a December 2012 letter, the Veteran's physician, M.C., M.D., provided a summary of his medical history and noted that the Veteran had been diagnosed with having NHL in 1994 and underwent chemotherapy and radiation which was completed in 1995. Dr. C. also noted that the Veteran was diagnosed with having hepatitis C in 1995 and was treated with rebetron for several months. According to Dr. C., the Veteran did not complete the therapy due to side effects of the drug, which included severe fatigue, malaise and shortness of breath. Dr. C. further noted that the Veteran underwent treatment for this disorder once again from March 2003 to September 2003 and since then, his hepatitis C virus RNA tests had been low to nondetectable. Pursuant to the March 2017 remand, the Veteran was scheduled for, and underwent, a VA examination in connection to his claimed disorder in October 2017. Based on her evaluation of the Veteran, as well as her review of his claims file, the VA examiner determined that the Veteran did not have, and had not ever been diagnosed with having, chronic fatigue syndrome. The VA examiner also determined that the Veteran did not have, and had not ever been diagnosed with having, any type of respiratory disorder. She (the examiner) explained that the medical records were absent any diagnosis of a respiratory disorder, and physical examination of the Veteran was negative for evidence of a condition relating to the pulmonary system at this time. According to the examiner, the Veteran's reported symptoms of shortness of breath and fatigue were non-specific in nature and not attributed to any diagnosis. The examiner ultimately concluded that the Veteran did not have a current diagnosis of a disability manifested by chronic shortness of breath or fatigue that is caused, or aggravated by, his active service or other disability determined to be related to his military service. In reaching this determination, the VA examiner explained the Veteran had other risk factors for feeling shortness of breath and fatigue, to include his body habitus, his weight, his social history, and the fact that he was a former smoker. Upon consideration of the above evidence, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a chronic disability manifested by shortness of breath and fatigue. The Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Here, the greater weight of the evidence points to the Veteran not having any diagnosis of a disorder manifested by shortness of breath or fatigue. As noted above, although the Veteran's service treatment records reflected notations of respiratory problems, these were often attributed to upper respiratory infections that were not chronic. Also, while the May 2006 Report of Investigation Line of Duty and Misconduct reflected that the Veteran began experiencing chest pain in April 2004, this symptom was ultimately attributed to another illness - namely his NHL. The Veteran's updated VA and SSA medical records have been associated with his claims file, and do not reflect any notations or signs of a disorder manifested by these symptoms. Although some of the Veteran's VA treatment records reflected a medical history of chronic fatigue and shortness of breath, these records are absent a diagnosis of chronic fatigue syndrome, or any evidence or diagnosis of a disorder that these symptoms could be attributed to. Indeed, a number of the Veteran's VA treatment providers appear to attribute his shortness of breath, malaise and overall fatigue to his diagnosed NHL and hepatitis C, and treatment he has received for these symptoms. In this regard, in an April 2002 treatment report, the Veteran's physician noted that that the Veteran had experienced a decrease in his energy level and shortness of breath since undergoing radiation and chemotherapy for his NHL. During the November 2006 VA treatment visit, the VA treatment provider noted that the Veteran was unable to complete the treatment for his hepatitis C because of some side effects, including fatigue, malaise and shortness of breath. See also December 2012 letter from Dr. C. During the April 2007 VA treatment visit, the VA physician acknowledged the Veteran's chronic fatigue state but noted that he had no recent illnesses associated with these symptoms. In the March 2017 treatment report, the VA treatment provider alluded to a possible connection between the Veteran's chemotherapy and his chronic fatigue. While treatment records issued by Dr. B. reflected assessments of acute bronchitis and interferon induced asthma, these assessments were made in 2003, several years before the Veteran filed a claim for a disability manifested by shortness of breath and fatigue. Indeed, the evidence must show that the Veteran has had the disability for which benefits are being claimed at some point during the pendency of the claim or some contemporaneous to when he filed his claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). Significantly, subsequent reports are negative for any evidence, notations or diagnoses of bronchitis, asthma, or any disorder manifested by shortness of breath and fatigue. The Board has considered the Veteran's assertions that he has a chronic disability manifested by shortness of breath and fatigue that is related to his time in service. Although the Veteran is competent to report such symptoms as fatigue and shortness of breath, the evidence does not establish that the Veteran has expertise in diagnosing a medical condition. He is thus considered a non-expert, or a layperson. Whether the diagnosis of a layperson is competent evidence depends on the facts of the case. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, whether the Veteran has a disability manifested by shortness of breath and fatigue, is a complex question. This is demonstrated by the fact that a medical professional have reviewed his claims file in full and conducted an examination in response to his complaints and arrived at the conclusion that he does not have chronic fatigue syndrome, a respiratory disorder, or any disorder manifested by symptoms of fatigue and shortness of breath. The Board thus finds his statements that he has such disability to not be competent evidence. The Board finds that in light of the fact that the evidence fails to establish that the Veteran has, at any point during the pendency of his claim or contemporaneous to when he filed his claim, been treated for, or diagnosed with a disability manifested by shortness of breath and fatigue, a disability analogous to a respiratory condition, or any other specific disability that could fall within the scope of this claim, the claim of service connection for a disability manifested by shortness of breath and fatigue must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225; see also Clemons v. Shinseki, 23 Vet. App. 1 (2009) (stating that it is the responsibility of VA to consider alternate current conditions within the scope of the claim). In finding that service connection for a chronic disability manifested shortness of breath and fatigue is not warranted, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to service connection for a chronic disability manifested by shortness of breath and fatigue is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs