Citation Nr: 20028057 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 18-33 486 DATE: April 22, 2020 ORDER Service connection for a low back condition is denied. An initial compensable rating for emphysema is denied. REMANDED Service connection for epilepsy, to include memory loss and cognitive decline. Service connection for migraine headaches. Service connection for a gall bladder condition (status post cholecystectomy).   FINDINGS OF FACT 1. The Veteran’s low back condition is not due to a disease or injury in service. 2. The Veteran’s emphysema symptoms have not more nearly approximated FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66- to 80-percent predicted. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an initial compensable rating for emphysema have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.96, 4.97, Diagnostic Code (DC) 6603. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1987 to February 1991. This matter is on appeal from a November 2016 rating decision. Additional evidence was received subsequent to the statement of the case (SOC) issued in April 2018. As the evidence is not pertinent to the claims decided herein, a remand for RO consideration of the evidence is not necessary for those claims. See 38 C.F.R. § 20.1304(c). Although the Board is remanding other claims for additional development, remand is not necessary for the issues decided herein, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection 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; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 1. Service connection for a low back condition. The Veteran contends that he has degenerative disc disease of the lumbar spine related to service. On his May 2016 application for benefits, he indicated that the condition began in March 2015. Although there was a prior claim denied pertaining to degenerative disease, as this claim is considered more specific, the Board determines it is a new claim rather than a claim to reopen. The Veteran was provided a VA back examination in November 2016, in which the examiner noted a diagnosis of degenerative disc disease and arthritis. The examiner opined that the Veteran’s back condition was less likely than not related to his time in service or a specific exposure event during his deployment in Southwest Asia. Post-service medical records consistently indicate that the Veteran reported his back pain began in 2010, almost two decades after service, during a work-related injury when the Veteran was lifting and swinging a 50-pound bucket. The record further shows the Veteran reporting he worked in construction for 22 years after service building houses and “blew out [his] back on the job.” The post-service evidence is consistent with this history. A November 2014 VA treatment record notes a history of low back pain that the Veteran had since 2010 when he had an injury when lifting a 50 pound bucket. The low back pain had been getting worse since then. Additionally, service treatment records (STRs) show no complaints, treatment, or diagnosis of back pain or any back-related injury during his time in service. Based on this evidence, the Board finds that the Veteran’s low back condition is not due to a disease or injury in service. There is a definitive post-service intercurrent cause based on the treatment records and the persuasive November 2016 VA examiner’s opinion. This further weighs against in-service onset, arthritis manifesting within one year of service, or a continuity of symptomatology since service. Moreover, the provisions of 38 C.F.R. § 3.317 pertaining to service as a Persian Gulf veteran are not applicable as there is a clinical diagnosis and the evidence does not suggest that the condition is a medically unexplained chronic multisymptom illness (MUCMI). As such, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for a low back condition is not warranted.. Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. A compensable initial rating for emphysema. The Veteran asserts that he is entitled to a compensable rating for his service-connected emphysema, which is rated under DC 6603. See 38 C.F.R. § 4.97. Under DC 6603, a 10 percent disability rating is assigned for FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66- to 80-percent predicted. A 30 percent disability rating is assigned for FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65-percent predicted. A 60 percent disability rating is assigned for FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent disability rating is assigned for FEV-1 less than 40 percent of predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) less than 40 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. The Veteran was provided a VA examination in July 2016. The examination report showed a diagnosis of emphysema and bronchitis. The examiner noted the Veteran’s respiratory condition did not require the use of oral or parenteral corticosteroid medication, inhaled medication, oral bronchodilators, antibiotics, or outpatient oxygen therapy. The Veteran’s pulmonary function test (PFT) revealed FEV-1 and FEV1/FVC greater than 80 percent predicted. This was even with pre-bronchodilator testing as post-bronchodilator testing was not performed because the testing as normal. The examiner noted that the FEV1/FVC most accurately reflected the Veteran’s level of disability. As a result of this examination, the Veteran was granted service connection in a November 2016 rating decision and provided a noncompensable rating as a 10 percent rating requires FEV1/FVC of 71 to 80 percent. After the notice of disagreement, an August 2017 VA was conducted. It noted symptoms such as shortness of breath when walking long distances, as well coughing and wheezing when laying down. The examiner noted the Veteran’s condition required inhalation bronchodilator and anti-inflammatory medication daily. Although the Veteran’s PFT revealed FEV1/FVC of 72 percent pre-bronchodilator, PFT with post-bronchodilator is required for this condition. See 38 C.F.R. § 4.96(d). That measurement was 96 percent predicted value with post-bronchodilator testing. The other testing was also not to a compensable level. The Board finds the VA examination reports are the most persuasive evidence in evaluating the Veteran’s emphysema. They contain the required PFTs, which show a noncompensable level of impairment since the award of service connection. Additionally, sever symptoms, such as those listed in the criteria for a 100 percent rating are not evidence in the record. In light of the evidence, the Board finds that the Veteran’s emphysema symptoms have not more nearly approximated FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66- to 80-percent predicted. As such, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Accordingly, an initial compensable rating is not warranted for emphysema. REASONS FOR REMAND 1. Service connection for epilepsy, to include memory loss and cognitive decline. 2. Service connection for migraine headaches. 3. Service connection for a gall bladder disorder (status post cholecystectomy). The Veteran was afforded VA examinations in July 2016 in connection with these claims. The examiner was directed to provide service connection opinions specifically addressing the presumptive provisions of 38 C.F.R. § 3.317 regarding disabilities occurring in Persian Gulf veterans. All three opinions regarding the three issues stated that the Veteran’s condition was less likely than not related to a specific exposure event experienced by the Veteran during his service in the Persian Gulf. However, the examiner repeated the same rationale for the three issues without providing supporting facts based on the Veteran’s case file, specific conditions, and medical principles. Furthermore, for the three issues, the examiner did not address whether any symptoms or conditions represent an objective indication of chronic disability resulting from an undiagnosed illness or a MUCMI under 38 C.F.R. § 3.317. See Stewart v. Wilkie, 30 Vet. App. 383 (2018). Accordingly, the Board finds that a remand is warranted for these three issues for a new VA examination and medical opinion. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination or examinations (or telehealth interview, records review, etc. if an in-person examination is not feasible) in conjunction with the claims of service connection for (i) epilepsy, to include memory loss and cognitive decline; (ii) migraine headaches; and (iii) gall bladder disorder (status post cholecystectomy). Based upon a review of the entirety of the claims file, the history presented by the Veteran, any lay statements, and any examination results, the examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran’s current condition(s) had its onset during military service, or is otherwise related to his active duty service, to include an exposure event during service in the Persian Gulf. In doing so, the examiner must then discuss both the etiology and pathophysiology of the condition with specific emphasis on whether both the etiology and pathophysiology of the condition is understood or at least partially understood in the context of the Veteran’s unique circumstances, including whether the condition is a MUCMI. The examiner must provide a complete rationale for all opinions. If an examiner cannot provide an opinion without resorting to speculation, it must be so stated, and he or she must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ariasaif, Associate Counsel 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.