Citation Nr: 20041174 Decision Date: 06/17/20 Archive Date: 06/17/20 DOCKET NO. 15-29 473 DATE: June 17, 2020 ORDER Entitlement to service connection for a respiratory disorder, to include asthma and COPD, to include as due to a qualifying chronic disability resulting from an undiagnosed illness, and as due to exposure to environmental hazards in the Persian Gulf, is denied. Entitlement to service connection for chronic headaches, to include as due to a qualifying chronic disability resulting from an undiagnosed illness, and as due to exposure to environmental hazards in the Persian Gulf, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s respiratory disorder began during active service or is otherwise related to an in-service injury or disease, to include exposure to environmental hazards in the Persian Gulf. 2. The preponderance of the evidence is against finding that the Veteran’s chronic headache disorder began during active service or is otherwise related to an in-service injury or disease, to include exposure to environmental hazards in the Persian Gulf. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disorder, to include as due to exposure to environmental hazards in the Persian Gulf, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a respiratory disorder, to include as due to exposure to environmental hazards in the Persian Gulf, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1989 to August 1993. In August 2018, the Board, in relevant part, remanded the issues on appeal for further development, to include obtaining a VA examination. To the extent that the appeal is being adjudicated, the Board is now satisfied there was substantial compliance with these Remands. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Here, the Veteran was provided with a VA examination in March 2020 - which the Board finds adequate for adjudication purposes. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. See also Wood v. Derwinski,1 Vet. App. 190 (1991). Service Connection 1. Entitlement to service connection for a respiratory disability, to include asthma and COPD, to include as due to a qualifying chronic disability resulting from an undiagnosed illness, and as due to exposure to environmental hazards in the Persian Gulf 2. Entitlement to service connection for chronic headaches, to include as due to a qualifying chronic disability resulting from an undiagnosed illness, and as due to exposure to environmental hazards in the Persian Gulf The Veteran asserts that his respiratory and chronic headaches disorders are related to active service. In particular, he contends that his disorders stem from his time in South West Asia. As a preliminary matter, the Board notes that service connection may be warranted on a presumptive basis for veterans with service in the Southwest Asia theater of operations for objective indications of a “qualifying chronic disability” that became manifest during active military, naval or air 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 not later than December 31, 2021. 38 C.F.R. § 3.317(a)(1). In this case, while there is some indication that in the record that the Veteran may have a qualifying disorder, the August 2019 and March 2020 VA examinations determined that the Veteran does not have symptoms of an undiagnosed illness, a medically unexplained chronic multi-symptom illness, and/or a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d). As such, this presumption is not applicable. The Board concludes that while the Veteran has a current diagnosis of these disorders, the preponderance of the evidence weighs against finding that the Veteran’s headaches and respiratory disorders began during service or is otherwise etiologically related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.304, 3.307, 3.309. While the Veteran had acute respiratory symptoms, with an inhaler, but the service treatment records do not report chronic symptoms or a diagnosis related to a respiratory disorder, to include asthma or COPD. As for the Veteran’s headache disorder, there are noted instances of the Veteran suffering from headaches while in service, but there was no diagnosis of a chronic headache disorder. In fact, the Veteran’s June 1993 separation examination is silent for any symptoms or a diagnosis related to either a respiratory or a headache disorder. Of note, the Veteran specifically denied having asthma, shortness of breath, and a chronic cough as well as denial of frequent or severe headaches. The post-service medical evidence includes statements to the Veteran’s medical providers that he had respiratory and headache symptoms since service. However, the objective medical evidence does not demonstrate any symptoms, manifestations, or a diagnosis related to these disorders until approximately 1997. Therefore, continuity of symptoms has not been shown based on the clinical evidence, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). The Board recognizes the statements from the Veteran regarding his history of respiratory and headache symptoms since service. While the Veteran is competent to report that he experienced pain and asthma, since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his current disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Nevertheless, the Board determines that the Veteran’s reported history of continued symptomatology since active service, while competent, is nonetheless insufficient to establish continuity of symptomology. Further, the Veteran’s service and medical treatment records contradict his assertions that his symptoms have persisted since service. Here, the Veteran’s history of respiratory and headache symptoms is inconsistent with his June 1993 separation examination, which reflects the Veteran’s denial of respiratory and headache symptoms. Moreover, the Veteran’s medical records, including from September 1997, January 1999, and June 2005 indicate his respiratory and headache symptoms have not persisted since service. Although the Veteran is not competent to diagnosis and provide etiological opinions related to his disorders, service connection may nonetheless be established if a relationship may be otherwise established by competent evidence, including medical evidence and opinions. In this case, however, the competent evidence fails to establish a relationship between active duty and the Veteran’s current symptoms. In this regard, the Board places significant probative value on the opinions from the VA examiners who performed a detailed review of the Veteran’s service and medical treatment records, as well as a comprehensive physical examination. Specifically, the August 2019 VA examiner opined that the Veteran’s respiratory disorder, to include COPD and asthma, was not related to service. Specifically, the examiner opined that the Veteran does not have an undiagnosed respiratory condition. In support, the examiner noted that the Veteran was not documented to have an asthma or COPD condition or any chronic pulmonary condition during service. While he had several colds and one possible episode of pneumonia in 1991, there was no further remarks on persistent pulmonary issues. At discharge, he denied any respiratory symptoms/conditions. The examiner also relied on studies done on Veterans returning from the Gulf War, which did not find evidence for delayed onset chronic lung conditions. Thus, the examiner opined that there is no objective evidence of an association between Gulf War hazards and a chronic, diagnosable respiratory condition, such as the Veteran’s asthma, and there is no evidence that the Veteran had a persistent respiratory condition at the time of discharge. Lastly, the examiner concluded that asthma can onset later in adulthood, which, based on the records available for review, is the case for this Veteran. With respect to the Veteran’s headache disorder, the March 2020 VA examiner determined that the Veteran had a headache disorder. However, the examiner opined that the Veteran’s disorder was not related to service, to include his Gulf War experiences. Specifically, the examiner opined that the Veteran’s headache disorder was less likely than not incurred in or caused by service. In support, the examiner noted that during service, the Veteran’s condition was acute only. According to the Veteran’s April 1991 neurology exam, he had benign psychogenic headaches. It was noted that although the Veteran complained of headaches, he had no problem sleeping without disturbances from pain. Further, his MRI was benign regarding brain and sinuses. According to the Veteran, his headaches did not become severe until 2007 with use of CPAP (14 years after discharge). Thus, the examiner opined that there is no evidence of chronicity of care. As part of this claim, the Board recognizes the statements from the Veteran, regarding the relationship between his disorders and active service. Nevertheless, while he is competent to provide testimony regarding observable symptomatology such as pain and asmatic symptoms, he is not competent to provide a nexus opinion in this case. These issues are also medically complex, as it requires knowledge of the interaction between multiple systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the unsubstantiated statements regarding the claimed diagnosis and etiology of the Veteran’s disorders are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. McGee, Associate Counsel