Citation Nr: 21000144 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 17-40 277 DATE: January 4, 2021 ORDER Service connection for a respiratory disability, claimed as upper respiratory infection, sinus disability, and bronchitis, is denied. REMANDED Service connection for obstructive sleep apnea is remanded. Service connection for a skin disability is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities for the period prior to September 6, 2016 is remanded. FINDING OF FACT A respiratory disability clearly and unmistakably preexisted active service, and increased in severity during service, but the increase in disability was solely due to the natural progression of the condition. CONCLUSION OF LAW The criteria for service connection for a respiratory disability have not been met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army National Guard, and served on active duty from November 2002 to October 2003, which included service in Bosnia and Germany from January 24, 2003 to September 19, 2003. The Veteran seeks service connection for a respiratory disability, variously claimed as sinus disability, bronchitis and upper respiratory infections, that are due to burn pit exposures during active service in Bosnia. See 07/02/2017 VA 21-526b, Veteran Supplemental Claim. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran’s claimed respiratory disability preexisted his active military service from November 2002 to December 2003. Service treatment records generated during his National Guard service reflect treatment for bronchitis in November 1990 and bronchitis and an upper respiratory infection in 1994. 10/29/2013 STR-Medical at 64, 73. An October 2002 Report of Medical Examination conducted for retention and deployment purposes reflects that his ‘lungs and chest’ were clinically evaluated as normal. Id. at 28. An October 2002 Report of Medical History reflects that he checked the ‘No’ boxes for ‘shortness of breath,’ ‘pain or pressure in chest,’ and ‘chronic cough.’ Id. at 32. As the Veteran underwent an examination prior to his deployment, the presumption of soundness attaches. See 38 C.F.R. § 3.304(b); see also Quirin v. Shinseki, 22 Vet. App. 390, n.5 (2009) (citing Lee v. Brown, 10 Vet. App. 336, 339 (1997) (holding that the presumption of soundness applies even when the record of a veteran’s entrance examination has been lost or destroyed while in VA custody)). The Veteran’s October 2002 examination is absent of any notations of defects, infirmities, or disorders with respect to a claimed respiratory disability. Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence “‘cannot be misinterpreted and misunderstood, i.e., it is undebatable.’” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). A September 2019 examiner opined that there is a clear picture that the Veteran had chronic bronchitis prior to his active service in Bosnia. The examiner cited to a May 1990 treatment record for upper respiratory infection and bronchitis; a November 1990 treatment record for bronchitis versus viral pleurisy treated with Keflex 250 milligrams; and, a February 1991 treatment record for bronchitis, treatment with Keflex. A May 2020 addendum opinion was proffered, which indicated that there is clearly history of bronchitis beginning in May 1990 and treatment thereafter in November 1990, February 1991, February 1993, and November 1994 which was prior to his active service and exposure to burn pits in Bosnia. The examiner stated that these encounters reveal treatment with antibiotics/Keflex for bronchitis. In light of the documented pre-service evidence for multiple episodes of bronchitis, the examiner opined that the disorder clearly and unmistakably preexisted service. Given the above, there is clear and unmistakable evidence that the Veteran’s respiratory disability preexisted service. Based on the medical evidence on file prior to the Veteran’s active service showing treatment for bronchitis and the opinion of the May 2020 examiner, such constitutes clear and unmistakable evidence that his bronchitis preexisted service. Regarding the second prong in rebutting the presumption of soundness, the government may show a lack of aggravation by establishing by clear and unmistakable evidence “that there was no increase in disability during service or that any “increase in disability [was] due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding “that the record contains insufficient evidence of aggravation.” Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). Service treatment records from his period of active service do not reflect any specific complaints or treatment for a respiratory disability or symptoms related thereto. On a September 2003 Post-Deployment Health Assessment completed by the Veteran he reported his service in Bosnia and checked the ‘No’ boxes for ‘chronic cough,’ ‘runny nose,’ and ‘difficulty breathing.’ 10/29/2013 STR-Medical at 57. He checked the ‘No’ box for exposure to ‘smoke from burning trash or feces.’ Id. at 58. The September 2019 examiner opined that current history and examination, along with medical literature, identifies permanent aggravation of chronic bronchitis by military service to be plausible. Service treatment records support aggravation while in service. The Board notes, however, that such opinion was proffered using the wrong standard, as the examiner did not address whether any aggravation was due to the natural progression of the disease. Thus, in May 2020 an addendum opinion was proffered. The examiner stated that the Veteran shows a chronic pattern for upper respiratory infection/bronchitis which is acute/recurrent, with pulmonary function testing (PFT) as late as 2017 (nearly 14 years post-service) with normal DLCO of 82 percent predicted with normal range. Additionally, there is no objective evidence in the current service treatment records that reveal that the chronic bronchitis underwent any permanent worsening beyond the natural progression of the bronchitis disability during service. There is no objective evidence that exists that reveals any aggravation beyond the normal course for his brief time in service or thereafter. Post-service PFTs in 2017 showed mild obstruction but did not result in a chronic respiratory diagnosis beyond the Veteran’s history with acute/recurrent bouts of bronchitis. Post-service PFTs would also reflect exposure to burn pits in 2003 as less likely than not impacting his pulmonary function as PFTs were within normal limits within most parameters with no definitive diagnosis 14 years post-service. Aggravation of the Veteran’s acute/recurrent bronchitis condition is not objectively shown. The examiner also found that there is also no confirmed diagnosis of any respiratory condition beyond the Veteran’s predisposition to chronic bronchitis to include asthma and COPD as shown in the 2017 PFT of record. In this case, the most probative evidence establishes that any increase in disability during service represented the natural progression of bronchitis. The file contains clear and unmistakable evidence that the respiratory disability was not aggravated by military service. As such, VA has met its high burden of showing by clear and unmistakable evidence both that the Veteran’s respiratory disability preexisted service and was not aggravated by such. Thus, the presumption of soundness is rebutted in its entirety. As the presumption of soundness is rebutted, the second element of service connection is not met and entitlement to service connection based direct theories of entitlement is not warranted. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). While the Veteran believes that his bronchitis is due to service and was aggravated beyond its natural progression of the disease, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between anatomical relationships and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). In light of the in-service complaints and Veteran’s lay assertions, an opinion was sought which was negative. REASONS FOR REMAND Sleep apnea In an April 2019 decision, the Board, in pertinent part, denied service connection for sleep apnea on a direct and secondary basis. Specifically, the Board determined that his sleep apnea did not manifest as a result of active service and was not caused or aggravated by his PTSD (50% 03/27/2015; 100% 09/06/2016) and/or medications prescribed therefor. The Veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court). In an April 2020 Joint Motion for Remand (JMR) and Court Order, the portion of the decision which denied service connection for sleep apnea was vacated and remanded for action consistent with the JMR. The basis for the JMR was that the August 2017 and April 2018 VA medical opinions were inadequate in addressing etiology of the Veteran’s sleep apnea. The August 2017 VA medical opinion failed to clearly address whether sleep apnea is proximately due to or aggravated by the Veteran’s PTSD and lacks a well-supported rationale for finding that his sleep apnea is not due to his PTSD. Also, the August 2017 VA examiner referenced a 2008 separation examination which reflected the Veteran’s weight and sleep apnea diagnosis in 2015 and proffered a negative etiological opinion. The Veteran, however, separated from service in October 2003. Thus, the opinion is based on the incorrect assumption that the separation examination was conducted in 2008. Finally, the April 2018 VA medical examiner failed to provide an adequate medical opinion as to whether medications taken for PTSD or hypertension (0% 05/30/2017) caused or aggravated his sleep apnea. Based on the above, remand is necessary for further etiological opinions. Skin disability The Veteran asserts that he has a skin disability due to exposure to burn pits during active service in Bosnia, due to stress and his PTSD, and due to medications prescribed for his PTSD and hypertension. In August 2017, the Veteran underwent an examination wherein the examiner diagnosed vitiligo. The examiner proffered a negative etiological opinion with regard to burn pits in Southwest Asia but did not address the burn pits in Bosnia. In a September 2017 addendum opinion, the examiner stated that with regard to whether his skin condition is related to stress of service or PTSD is completely unknown and would be resorting to speculation. Even though ‘stress’ is a known causation, a specific causation cannot be stated, as many cases are of unknown causation. In other words, there is no specific, direct manner in which a provider could state (or support) that vitiligo was specifically caused by service stress/PTSD, especially when many other causations can be responsible (to include cases where no causation was found). In April 2018, the same VA examiner reviewed the claims folder and stated that a review of all examinations did not make mention/suggestion of worsening of vitiligo by medications taken for hypertension and PTSD. Hence, based on a thorough record review, it does not appear likely the skin condition was truly aggravated by claimed service-connected medications. In September 2019, the Veteran underwent a C&P examination wherein the examiner diagnosed papular rash and vitiligo. The examiner opined that there is a lack of clear evidence to support a link between vitiligo and the burn pits in Bosnia. The condition began in 2000, which was prior to the burn pit exposure. The examiner stated that vitiligo is a condition which can be triggered by many conditions and exposures. In a May 2020 addendum opinion, the examiner noted that a September 2013 Mayo Clinic examination described a 5-year history of generalized vitiligo (since 2008), which is nearly 5 years post service for which the claimed condition of vitiligo was recognized in medical records. The August 2017 opinion describes his vitiligo starting in Bosnia in 2003, which conflicts with the 5-year history cited above. Additionally, neither entrance or separation examinations are found to confirm the existence of the condition before service and all available service treatment records only reveal post-service treatment of the skin condition of vitiligo. Finally, there is no medical causative relationship shown between his service in Bosnia with or without exposure to burn pits and the development of the skin condition vitiligo or any skin condition. His skin condition of vitiligo with incidental findings of dermatitis are both post service diagnosed conditions with no known medical nexus linking vitiligo to service. A nexus is not established for vitiligo that it either began during service or was otherwise caused by his service, to include as a result of his exposure to burn pits during his confirmed active service in Bosnia in 2003. Remand is necessary as the opinions of record do not adequately address whether the Veteran’s vitiligo is due to exposure to burn pits in Bosnia or whether his vitiligo is due to or aggravated by in-service stress or his service-connected PTSD. TDIU prior to September 6, 2016 The claim for a TDIU prior to September 6, 2016 is inextricably intertwined with the issues of service connection for sleep apnea and skin being remanded, thus the Board will defer consideration of the appeal with regard to entitlement to a TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following actions: 1. Request that an examiner with appropriate expertise review the claims folder and respond to the following with regard to the Veteran’s claimed sleep apnea: a) Did sleep apnea at least as likely as not (50 percent or greater probability) manifest during active service or is it otherwise due to active service, to include exposure to burn pits in Bosnia? b) Is sleep apnea at least as likely as not (50 percent or greater probability) caused by service-connected PTSD? c) Is sleep apnea at least as likely as not (50 percent or greater probability) aggravated (i.e., worsened beyond the normal progression of the disease) by service-connected PTSD? d) Is sleep apnea at least as likely as not (50 percent or greater probability) caused by medications taken for service-connected PTSD and hypertension? e) Is sleep apnea at least as likely as not (50 percent or greater probability) aggravated (i.e., worsened beyond the normal progression of the disease) by medications taken for service-connected PTSD and hypertension? If aggravation is found, the examiner must attempt to establish a baseline level of severity of the sleep apnea prior to aggravation by the service-connected PTSD or medication taken for PTSD and hypertension. Please note, causation and aggravation are separate concepts and must be addressed independently. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. Request that an examiner with appropriate expertise review the claims folder and respond to the following with regard to the Veteran’s claimed skin disability: a) Did a skin disability at least as likely as not (50 percent or greater probability) manifest during active service or is it otherwise due to active service, to include exposure to burn pits in Bosnia? b) Is a skin disability at least as likely as not (50 percent or greater probability) caused by service-connected PTSD? c) Is a skin disability at least as likely as not (50 percent or greater probability) aggravated (i.e., worsened beyond the normal progression of the disease) by service-connected PTSD? d) Is a skin disability at least as likely as not (50 percent or greater probability) caused by medications taken for service-connected PTSD and hypertension? e) Is a skin disability at least as likely as not (50 percent or greater probability) aggravated (i.e., worsened beyond the normal progression of the disease) by medications taken for service-connected PTSD and hypertension? If aggravation is found, the examiner must attempt to establish a baseline level of severity of the skin disability prior to aggravation by the service-connected PTSD or medication taken for PTSD and hypertension. Please note, causation and aggravation are separate concepts and must be addressed independently. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.W. Kreindler, 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.