Citation Nr: 1809092 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 13-15 547 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for pulmonary or respiratory system disorder (claimed as pulmonary thromboembolism (PTE), pulmonary vascular disease or embolism) to include as due to exposure to environmental hazards in the Gulf War, or as due to undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran served on active duty from July 1982 to January 2003. This included service in Southwest Asia during the Gulf War. This matter comes before the Board of Veterans' Appeals (Board) from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In July 2015, the Veteran and his wife testified at a hearing before a Veterans Law Judge. A transcript of the proceeding is associated with the record. In an October 2016 letter, the Board informed the Veteran that the Veterans Law Judge who conducted the July 2015 hearing was unavailable to participate in a decision on the appeal and offered him another hearing. In November 2016 written correspondence, the Veteran declined another hearing. Accordingly, no further hearing will be scheduled in this matter. In October 2015 and June 2017, the Board remanded this matters for further development. As the requested medical examination was obtained and the claim was readjudicated in a supplemental statement of the case issued in November 2017, the Board finds the directives have been substantially complied with, and the matter again is before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran served in Southwest Asia during the Persian Gulf War. 2. The Veteran's pulmonary disorder, pulmonary embolism, is a diagnosed illness that did not have onset in active service and is not otherwise the result of a disease or injury incurred in active service. 3. The Veteran's pulmonary embolism is not a symptom of an undiagnosed or medically unexplained chronic multisymptom illness. CONCLUSION OF LAW The criteria for service connection for pulmonary embolism, to include as due to an undiagnosed illness, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). A. Duty to Notify The duty to assist was satisfied by a January 2011 letter to the Veteran. B. Duty to Assist The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c). The RO associated the Veteran's VA treatment records, service treatment records and identified private records with the claims file. No other relevant records have been identified and are outstanding. The Board finds VA has satisfied its duty to assist with the procurement of relevant records. The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159 (c)(4). VA examination was provided subsequent to the most recent remand. The July 2017 VA examination report is adequate. The Veteran's representative contends that the Veteran asserts the issue of direct service connection was not adequately addressed by the examiner. The Board disagrees, and notes that the VA examiner issued a well-supported and fully explained medical opinion regarding the claim based on undiagnosed illness as well as on a direct basis. Since VA has obtained all relevant identified records and provided adequate medical examination where necessary, the duty to assist in this case is satisfied. II. Legal Criteria Generally, to establish service connection 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For veterans who served in the Southwest Asia theater of operations during the Persian Gulf War, service connection may also be established for chronic disability that cannot be attributed to a known clinical diagnosis (undiagnosed illness) or for a medically unexplained multisymptom illness (e.g., chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome). See 38 C.F.R. § 3.317. A claimant's signs or symptoms need not be shown by medical evidence; however, some objective indications of disability are required. 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)(3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or 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; and (13) menstrual disorders. 38 C.F.R. § 3.317 (b). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. III. Discussion and Analysis The Veteran does not contend, and service treatment records do not show, treatment for pulmonary embolism or respiratory complaints. His August 2002 discharge examination reflects he denied coughing up blood, shortness of breath, bronchitis, wheezing, use of an inhaler or chronic cough. He denied having had any illness or injury on active duty for which he did not seek medical care. Rather, the Veteran argues that his PTE, diagnosed in 2010, is a sign or symptom "involving the upper or lower respiratory system." 38 U.S.C. § 1117 (g); 38 C.F.R. § 3.317 (b). In December 2010, the Veteran filed a claim for presumptive service connection for lower respiratory system symptoms, specifically, Pulmonary Vascular Disease, associated with Gulf War service. See December 2010 Statement in Support of Claim. He indicated that he was admitted to the hospital in October 2010 and diagnosed with a pulmonary embolism. He opined that the onset of the disease was medically unexplained as he did not have any of the risk factors or genetic factors that would normally lead to the condition. Id. He believes his primary risk factor was service in the Gulf War. He cited to evidence of excessive blood clotting in Gulf War Veterans. Records from St. Luke Hospital dated in October 2010 indicate the Veteran started feeling the abrupt onset of right upper chest pain 3 days prior to admission after lifting weights. He also noted worsening shortness of breath and had tingling and pain of his left arm going down to his hand. The records revealed that pulmonary embolus was evident; however, the Veteran had no clear risk factors. It was indicated the Veteran had no history of trauma and travel appeared to be distant enough in history to be unrelated. In addition, there was no familial history of clotting disorders. The examiner questioned whether venous compression related to weight lifting might have been a possible contributor. In May 2011, the Veteran underwent a VA examination. His medical records were reviewed. The RO had specifically requested that the report include a medical opinion regarding to whether (a) the Veteran's disability pattern was (1) an undiagnosed illness, (2) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (3) a diagnosable chronic multisymptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis and (b) if (3) or (4) above, the rationale and likelihood of a relationship to a specific exposure event experienced by the Veteran during service in Southwest Asia. The examiner reviewed the Veteran's records and noted that there was no evidence of lung or respiratory complaints in his service treatment records or at discharge in 2003. The examiner indicated understanding of the various patterns of environmental exposure to which Gulf War Illness may be related. The examiner acknowledged the Veteran's claimed disability pattern related to pulmonary thromboembolism and his "suspicion of an ongoing Hypercoagulable State and/or a distinct period of Hypercoagulability attributable to the effects of unknown exposures in SWA [Southwest Asia]." The examiner noted that the Veteran was currently taking anticoagulant medication, specifically Warfarin. It was reported that the Veteran experienced pain of the same quality and location with exertion; pain and breathlessness were the only residuals reported on examination. During his time recuperating, the Veteran discovered evidence of credible suspicion that Gulf War Illness includes acquired and/or enhanced hypercoagulable state. Following interview and examination of the Veteran, the examiner answered the questions posed by the RO. He indicated the Veteran's disability did not reflect a likely undiagnosed hematologic illness of abnormal coagulation status. He opined that the Veteran's disability pattern did not reflect a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology or partially explained etiology. The examiner stated that the Veteran's disability pattern did reflect a disease with a clear and specific diagnosis, i.e. PTE; however, the etiology of the clot leading to the embolism was not clear or specific. As to a relationship between PTE to a specific exposure event experienced by the Veteran during service, the examiner opined that "until ongoing medical investigations that Veteran has identified establishes their putative linkage of environmental exposures in Southwest Asia to a Hypercoagulable State and a potential of subsequent PTE, any likelihood of such a relationship remains one of mere speculation." The examiner determined that the PTE was not caused by or a result of environmental exposure in Southwestern Asia. The examiner explained as rationale that the embolism "per se of a blood clot to the lung is not temporally close to active duty to link it to exposures in SWA." As to whether a Hypercoagulable State could be related to environmental exposures in Southwestern Asia, the examiner indicated he could not resolve this issue without resorting to mere speculation. He indicated that "a clear and definable link and/or presumptive link between altered coagulation status and environmental exposures in Southwest Asia are not available at this time." In October 2015, the Board remanded this matter for a new VA examination because the previous examination was more than 4 years ago and was less than a year after the Veteran experienced the PTE. By scheduling a new examination, the Board observed, information could be gathered as to the Veteran's current diagnosis, if there is one, and an addendum opinion could be obtained to determine whether the PTE was a symptom of an undiagnosed respiratory disability or whether an opinion as to etiology can be rendered without resort to speculation, to include consideration of the Veteran's service in the Gulf War pursuant to 38 C.F.R. § 3.317. Examination was conducted in March 2016 to address the nature and etiology of any current lung disability, specifically to include as due to exposure to environmental hazards in Southwest Asia during the Gulf War. The diagnosis was pulmonary embolism with infarction in October 2010. The VA examiner opined that the condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. Her rationale was that there was no compelling evidence to stated that the pulmonary embolism event that occurred in 2010 was directly related or as a consequence of military service. In June 2017, the Board found the examiner's opinion inadequate for adjudication purposes because it was conclusory and lacking a complete rationale to enable the Board to render an informed decision. An additional VA medical examination was ordered to be conducted by an examiner who had not previously examined the Veteran. Examination was conducted in July 2017 by a VA physician who reviewed the record and interviewed the Veteran. The diagnosis was pulmonary embolism in 2010. The VA examiner opined that it was less likely than not (less than 50 percent probability) that the lung/pulmonary/respiratory disorder is related to his active service, to include exposure to environmental hazards in the Southwest Asia during the Gulf War, or is a manifestation of an undiagnosed illness or medically unexplained chronic multisymptom illness associated with his Gulf War service under 38C.F.R. §3.317. The examiner's detailed opinions are reported in their entirety: Pulmonary embolism (PE) is diagnosed and well documented by generally well accepted diagnostic procedure, that being pulmonary CT angiogram. This is an imaging modality which typically includes the lungs as well as some of the upper abdomen, as lateral and posterior margins of the lungs extend to the upper abdomen near the liver and spleen. It does not include images of the majority of the abdomen vasculature and none of the pelvic vasculature. Literature shows that about 10% of venous thrombosis leading to PE is found in abdominal and pelvic veins not amenable to ultrasound evaluation. Pulmonary embolism is common in the general population with incidence generally estimated to be 110-140 people per 100,000 annually. As it is diagnosed, it is not an undiagnosed illness. The veteran contends that this condition is an unexplained illness as no source of thrombosis for the embolism was identified on testing. The medical literature is in general agreement that the majority of pulmonary embolism is most likely from blood clots that have broken off from venous thrombosis in the lower extremity veins, usually as a result of deep venous thrombosis and often evidence of those clots is found on ultrasound testing of the lower extremities after PE has been diagnosed any very often the lower extremity is without symptoms of DVT at the time of PE. Thrombosis is found in the upper extremities with PE less frequently. The veteran underwent ultrasound testing of the upper and lower extremities when the PE was diagnosed and no evidence was found of initial site of clot causing the PE. This testing (along with a heart ultrasound, which was normal) has led the veteran to the conclusion that the PE was medically unexplained or of unknown etiology since "they didn't find any other clot anywhere else in my entire body". First, the veteran did not have evaluation of the entire body for source of blood clots. Up to Date, a well-accepted peer-reviewed medical reference notes that while most thrombi develop at sites of decreased [blood] flow in the lower extremity veins, they may also originate in veins with higher venous flow including the inferior vena cava, or the pelvic veins, and in non-lower-extremity veins including renal and upper extremity veins. The veteran did not have ultrasonic evidence of thrombosis in the upper extremities on testing, but an exhaustive evaluation for possible thrombosis in abdominal and pelvic veins as noted above was not undertaken (most likely because it would involve risk and expense to the veteran but would not affect treatment) and as such it cannot be stated that the source of the clot for the veterans PE was "medically unexplained" in the sense that the medical field would use that term..... i.e beyond medical knowledge or capability.... but rather the source was not identified because there was no medical indication to pursue it further with CT angiogram, contrast MRI, or other generally invasive studies of the abdominal and pelvic veins (inaccessible to ultrasound) and the attendant risk and expense. Furthermore, while ultrasound studies for venous thrombosis in the extremities is felt to be a very good test by medical standards for finding thrombosis in patients with symptomatic DVT (swelling, pain in the extremity etc) with sensitivities and specificities generally >95%, it is less clear what the accuracy is when assessing for clots in the absence of DVT symptoms as with this veteran, and is much poorer in general at identifying thromboses below the knee or above the inguinal ligament in the thigh. Due to this, some medical authorities recommend ultrasonic re-imaging in 7 days if the diagnosis of such DVTs is critical. This was not done in this veteran's case as it was not indicated and would not change the treatment for the PE. In summary, a thorough search for the source of the veterans embolism was not undertaken because it is not unusual to not identify a clot source by non-invasive testing in PE (from 18% up to 50% of the time in the general population the clot source for PE events is unidentified by standard tests as done in this veteran, and are felt be from abdominal, pelvic, or small vein source not amenable to ultrasound identification) and further testing was not medically indicated as explained above. This does not amount to a clot source or etiology that is "medically unexplained", but rather that medicine can't tell the veteran exactly where the clot came from because it was not medically indicated to seek it further. The veteran also contends that that the PE is medically unexplained since he didn't have any risk factors for blood clots or PE by serum testing, family history, or personal history. However, both obesity and smoking are generally accepted as risk factors for both PE and DVT, although there is some variability in the exact degree of risk in the literature. The veteran had a clinically obese BMI >30 by VA data 4 days after the PE, this was even higher at physical exam in 2009 but no weight is found in St Lukes treatment records on date of PE. This is a risk factor. The veteran had a prior history of smoking which is reported stopped around 2000, but reported in 2008 having just recently giving up cigars (and gaining weight with that lifestyle change) so there may have been some unquantifiable residual risk associated with long time smoking. Although the veteran was reasonably active with weight-lifting at the time of the PE, his family counselling occupation is typically a fairly sedentary activity (first noticed PE symptoms during a group session) and increased risk of PE and DVT is found in sedentary situations. Hence, the veteran was not totally without any commonly accepted risk of developing DVT or PE, but regardless a 2002 retrospective study over 15 years showed that over 25% of all diagnosed DVT and/or PEs in the general population around Mayo in Rochester were NOT associated with well accepted risk factors. This is demonstrative that both PE and DVT commonly occur in the general population in the absence of risk factors and are not representative of an unexplained medical condition. When the veteran was asked to list his assertions during the interview process, he did not refer to articles that were submitted back around 2011 alluding to a $400 hypercoagulabity test a private lab in Arizona was doing for patients with chronic fatigue, fibromyalgia, and other conditions back in 1999 and 2001 who were considering heparin therapy for their conditions. This literature essentially consisted of an interview with one of the lab director/owners, and a magazine article discussing his theory that referenced one apparently published article, co-authored by the lab director and his spouse (also a company officer) with others. No association of his hypercoagulation testing findings with clotting or thrombosis is found claimed in that literature and in fact specifically notes that acute thrombosis does not occur with his proposed syndrome identified by his lab's test (ISAC Syndrome). On a literature search I was unable to find evidence that his hypothesis was developed further, generally accepted, or was ever associated in any way with thrombotic processes such as the veterans. This veteran-provided literature does not appear pertinent to his PE condition. Institute of Medicines latest Gulf War update as well as Gulf airborne hazard update were reviewed, there is no evidence of increased thromboembolic events found in SW Asia veterans to date. The examiner concluded that the Veteran's diagnosis of pulmonary embolism, 2010, is not a manifestation of an undiagnosed illness or medically unexplained chronic multisystem illness associated with his Gulf war service as it is an illness with a diagnosis (PE) and etiology (thrombus) as described above. From a medical stand point it is not a "medically unexplained illness" as there is a medical explanation for his illness as described above. The examiner analogized this to the instance of typical community-acquired pneumonia in a typical person. While it is standard to attempt to identify the causative organism with sputum culture and blood testing, in the vast majority of instances no specific organism is identified. While there are various options available to identify that specific organism (inserting needles in lungs or operations to surgically remove a piece of lung to culture, etc), if the treatment (antibiotics) is effective those tests are not performed and indeed could be considered absurd.....but that typical community-acquired pneumonia case would not be considered a "medically unexplained illness" simply because unindicated testing with attendant risk and expense was not performed. The examiner further found no nexus for direct service connection and he noted that none was claimed by the Veteran. The examiner explained that, in the face of ongoing studies regarding exposures to environmental hazards in Southwest Asia, the current evidence does not support an increased incidence or association of pulmonary embolus with SW Asia exposure events. It is less likely as not that pulmonary embolism is related to his active service, to include exposure to environmental hazards in the Southwest Asia during the Gulf War. The Veteran has responded to the November 2017 SSOC which cited to this opinion in denying the claim. He argues that his claim should be granted because he is Persian Gulf War Veteran who suffered a qualifying chronic disability that became manifest to a degree of 30 percent within the presumptive period. He argues that none of the VA examiners has offered a medical explanation for the clot or thrombus that caused the pulmonary embolism and infarction. He emphasizes that the condition has been described as symptomatic. Following a review of the entire record, the Board notes that the 2017 VA opinion is highly probative, as it is based on a review of the entire record to include the Veteran's detailed assertions. Moreover, it is well-supported and thoroughly explained, to include with reference to the Veteran's arguments. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. App. 488 (1995) (the Board may adopt a particular independent medical expert's opinion for its reasons and bases where the expert has fairly considered the material evidence of record). The Board adopts the 2017 VA opinion. The Board has considered the Veteran's theory that the pulmonary embolism is a symptom or manifestation of an undiagnosed or medically unexplained chronic multisymptom illness or is otherwise related to service. However, the medical evidence identifying and diagnosing the condition as pulmonary embolism due to thrombus, actual pathology, not related to service, is far more reliable and credible than statements from a lay informant. The most-probative evidence, the 2017 VA medical opinion, is wholly against the Veteran's theory. The Board emphasizes that the 2016 VA opinion was considered, but it is inadequate. The 2011 VA opinion, although supportive of a denial, was not fully informed, and was not accorded significant probative weight. Based the competent and credible evidence of record, the Board finds that the pulmonary embolism has been competently and credibly associated with a known etiology and diagnosis, pulmonary embolism, and therefore service connection based on the law and regulations pertaining to undiagnosed illness incurred due to Persian Gulf service is not warranted. 38 C.F.R. § 3.317. To the extent that he asserts that there is a coagulation disorder that resulted in an embolism, this theory is not supported by competent evidence. As for direct service connection, there is no nexus between the Veteran's service, to include specifically in the Persian Gulf, with its environmental hazards, and pulmonary embolism, 2010. Based upon a review of the record, the preponderance of the evidence is against the claim of entitlement to service connection for pulmonary or respiratory disability, identified as pulmonary embolism, to include as due to undiagnosed illness. Therefore, the benefit of the doubt rule is not for application because the evidence is not in relative equipoise. The benefits sought on appeal are accordingly denied. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for pulmonary or respiratory system disorder, pulmonary embolism, to include as due to exposure to environmental hazards in the Gulf War, or as due to undiagnosed illness, is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs