Citation Nr: 20008158 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 10-42 718 DATE: January 30, 2020 ORDER Entitlement to service connection for a respiratory disability, to include an undiagnosed illness manifested by shortness of breath is denied. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia theatre of operations during the Persian Gulf War. 2. The preponderance of the evidence is against finding that the Veteran has an undiagnosed illness manifested by shortness of breath or any respiratory disability. CONCLUSION OF LAW The criteria for establishing service connection for a respiratory disability, to include an undiagnosed illness manifested by shortness of breath have not been met. 38 U.S.C. §§ 1110, 1112, 1117, 1118, 5107; 38 C.F.R. §§ 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from September 2002 to September 2008, with service in the Southwest Asia Theatre of Operations. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. This matter was last before the Board in January 2018, when it was remanded for further development. That development having been completed, this matter has returned to the Board for further appellate review. 1. Entitlement to service connection for a respiratory disability The Veteran seeks service connection for a respiratory disability, manifested by shortness of breath, which he asserts is related to service during the Persian Gulf War, to include exposure to environmental and chemical hazards. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to prove service connection there must be: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, under legislation specific to Persian Gulf War veterans, service connection may be established for a qualifying chronic disability resulting from an undiagnosed illness that became manifest during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more no later than December 31, 2021. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). The term “qualifying chronic disability” means a chronic disability resulting from any of the following (or any combination of any of the following): (A) an undiagnosed illness; (B) a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under subsection (d) warrants presumptive service-connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i). Such chronic disability must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 C.F.R. § 3.317(a)(1). Objective indications of a 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 six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. 38 C.F.R. § 3.317(a)(4). Manifestations of an undiagnosed illness may include, among other things, signs or symptoms involving the upper or lower respiratory system. 38 C.F.R. § 3.317(b)(8). Compensation shall not be paid, however, 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 events that occurred between the appellant’s most recent departure from active duty in the Southwest 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 appellant’s own willful misconduct or the abuse of alcohol or drugs. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(c). Service personnel records confirm that the Veteran served in the Southwest Asia theatre of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e); 38 U.S.C. § 101(33). Therefore, he qualifies for consideration for presumptive service connection for disabilities resulting from an undiagnosed illness or medically unexplained chronic multi-symptom illness. At the October 2017 Board hearing, the Veteran testified that he was diagnosed with shortness of breath in 2004 after he returned from his deployment in Iraq. He also testified that he sought treatment when he felt like one side of his throat would collapse while trying to run and was told that it could be a result of the weather. In the Veteran’s March 2007 post-deployment health assessment, he reported difficulty breathing during deployment and being exposed to smoke from burning trash or feces and sand/dust. In a June 2007 post-deployment health reassessment, the Veteran denied any difficulty breathing. Service treatment records also indicate the Veteran complained of shortness of breath in April 2008 and a subsequent pulmonary function test (PFT) was normal. Additionally, April 2008 and June 2008 chest x-ray reveal right lung base findings. The Veteran underwent a VA general medical examination in March 2009. The Veteran reported that he experienced shortness of breath after he gained weight during service, but indicated that he had not experienced shortness of breath since losing weight. The Veteran further reported that he walks his dog fast for about two blocks and does not experience shortness of breath. As such, the examiner found no objective or subjective evidence of shortness of breath. Post-service VA treatment records reveal the Veteran reported some shortness of breath from running in September 2011. In June 2019, the Veteran underwent a VA respiratory examination. The Veteran reported that began experiencing shortness of breath during service, particularly while doing PT as part of his military training. The Veteran also reported that when he sought treatment for shortness of breath, he was told that it was due to his weight and the high humidity of Louisiana. The Veteran indicated that he has continued to experience shortness of breath, even when bending to pick things up from the floor. The examiner found the Veteran did not have a diagnosed respiratory condition, as shortness of breath is a symptom and not a diagnosis of a condition. The examiner noted the Veteran’s documented instances of shortness of breath, but found no diagnosis related to the respiratory system, other than the reference to findings of a small granuloma at the right lung base, which he concluded could not explain the Veteran’s shortness of breath. The examiner further explained that despite the Veteran’s history of shortness of breath, there was no objective evidence of any presumable underlying lung dysfunction. The examiner noted that without any evidence of pulmonary organicity it would be speculative to try to ascribe shortness of breath as incurrent in or caused by service, to include exposure while deployed in the Southwest Asia theatre of operations. Citing a study in Gulf War and Health to support his opinion, the examiner reasoned that there is inadequate/insufficient evidence to determine whether an association exists between deployment to Southwest Asia and specific health concerns, such as respiratory diseases. As such, the examiner opined the Veteran’s shortness of breath is less likely than not incurred in or caused by service. The Board acknowledges that in a January 2020 written statement, the Veteran’s representative asserted the June 2019 VA examination is inadequate. Specifically, he argued that the examiner could not have provided an opinion because he failed to render a diagnosis. Upon review of the June 2019 VA examination report, the Board finds the assertion unfounded. The June 2019 VA examiner considered the evidence of record, acknowledged the Veteran’s in-service complaints of shortness of breath and difficulty breathing, and the right lung base findings on chest x-ray in April 2008 and June 2008. The examiner also noted that the Veteran had failed to report for a pulmonary function tests (PFTs) at least twice. Neither the Veteran nor his representative has indicated the Veteran had good cause for missing the scheduled PFTs, nor has evidence been submitted that indicates any respiratory disability. “The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thus, the Board finds that the Veteran has received an adequate VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Upon review of the evidence, the Board finds the preponderance of the evidence is against the claim. Based upon the evidence of record, the VA examiners concluded the Veteran did not suffer from any current respiratory disability, and although he may have experience shortness of breath, there is no evidence the symptom evolved into a chronic condition. The opinions were based on a thorough review of the evidence of record, including the Veteran’s service treatment records, post-service treatment records and physical examination, and supported by an articulated rationale for the conclusions reached that were consistent with the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). There is no medical opinion linking a current respiratory disability to service. Moreover, the June 2019 VA examiner concluded there was no objective evidence of any presumable underlying lung dysfunction and without any evidence of pulmonary organicity, it would be speculative to ascribe the Veteran’s shortness of breath as incurred in or caused by service, including exposure to environmental and chemical hazards during his Persian Gulf service. While the Veteran is competent to report sensory or observed symptoms, the Board finds the lay assertions are significantly outweighed by the service treatment records, post-service treatment records and VA examination opinions that do not indicate the presence of a respiratory disability. Moreover, during the course of the claim, “objective indications of chronic disability” to include objective evidence perceptible to an examining physician, have not been shown. 38 C.F.R. § 3.317(a)(3). Although the Veteran believes he suffers from a respiratory disability that is related to service, he has not been shown to have the specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis, presence, and etiology of a respiratory disability are matters that require medical testing and expertise to determine. Thus, the Veteran’s opinion is not competent medical evidence. In sum, the Board concludes that the most probative evidence of record is against finding the Veteran has a respiratory disability, to include an undiagnosed illness manifested by shortness of breath, that is related to service.   In reaching this conclusion, 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 for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lance, Law Clerk The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.