Citation Nr: 21002031 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 14-06 915 DATE: January 12, 2021 ORDER Service connection for dyspnea (claimed as shortness of breath), due to an undiagnosed illness is granted. Service connection for atypical chest pain, due to an undiagnosed illness is granted. FINDINGS OF FACT 1. The Veteran had service in the Southwest Asia Theater of operations during the Persian Gulf War. 2. The Veteran has dyspnea that is at least as likely as not a manifestation of an undiagnosed illness or chronic multisymptom illness due to his Persian Gulf service. 3. The Veteran's atypical chest pain is at least as likely as not a manifestation of an undiagnosed illness or chronic multisymptom illness due to his Persian Gulf service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for a chronic multisymptom illness, diagnosed as dyspnea, have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for a chronic multisymptom illness, diagnosed as atypical chest pain, have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 2000 to July 2000 and June 2004 to November 2005 with service in Southwest Asia. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision from a Regional Office (RO) for the Department of Veterans Affairs (VA). The Board previously considered this appeal in September 2015 and September 2020 and remanded this issue for further development including scheduling a VA examination. The case returned to the Board for further appellate review. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). For Veterans with service in the Southwest Asia theater of operations during the Persian Gulf War, service connection may also be established under 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Under that section, service connection may be warranted for a Persian Gulf Veteran who exhibits 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). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service-connection. Under the applicable provisions, an undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117; 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. "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). The term "medically unexplained chronic multi-symptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). 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. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). 1. Entitlement to service connection for dyspnea (claimed as difficulty breathing/ shortness of breath), to include as secondary to service-connected posttraumatic stress disorder (PTSD) and/or due to an undiagnosed illness. 2. Entitlement to service connection for chest pain, to include as secondary to service-connected posttraumatic stress disorder (PTSD) and/or due to an undiagnosed illness. The Veteran seeks service connection for his dyspnea and atypical chest pain. More specifically, the Veteran asserts the claimed disabilities are the result of service in the Persian Gulf. The Veteran’s DD-214 shows service in Southeast Asia (Kuwait/Iraq) during the Persian Gulf War from October 2004 to October 2005. In the alternative, the Veteran contends that his dyspnea and atypical chest pain are secondary to his service-connected PTSD. Because the Board is granting this claim based on presumptive service connection, to include undiagnosed illness and medically unexplained chronic multisymptom illness, alternative theories of secondary or direct service connection will not be discussed in this decision. The Veteran asserts such respiratory and cardiovascular conditions began the day he returned from Iraq in November 2005, and service connection is thus warranted. Multiple medical notes in the Veteran’s post-service treatment record shows the Veteran has been treated for dyspnea since April 2006 and he has reported that symptoms began when he returned from Iraq in November 2005. A January 2006 primary note document the Veteran’s complaint of “difficulty breathing with exertion” and “occasional chest pain lasting a few seconds of up to a minute”. The physician noted impression of atypical (non-cardiac) chest pain. A July 2006 pulmonary note shows the Veteran reported sharp chest pain over left anterior chest unrelated to SOB. The first question before the Board is whether the Veteran's complaints of shortness of breath and chest pain are objective indications of an undiagnosed illness or medically unexplained chronic multisymptom illness. The Board has determined that, allowing the Veteran the benefit of the doubt, the evidence of record is at least in equipoise regarding whether the Veteran has symptoms of an undiagnosed illness or medically unexplained chronic multisymptom illness meeting the criteria of 38 C.F.R. § 3.317. The Veteran was previously afforded a VA Gulf War examination in March 2010. Although the examiner noted the Veteran’s chest pain and respiratory complaints and exposures in Kuwait and Iraq, he did not provide a rationale for his conclusion that he could not relate the Veteran’s exposures to his current persistent symptoms. Additionally, there was no discussion of whether the Veteran’s chest pain and respiratory complaints constituted an undiagnosed illness or whether they may be secondary to his service-connected PTSD, as suggested in a February 2010 VA treatment record. In a February 2010 pulmonary consult note, the VA physician noted that, after going through some of the Veteran’s psychologic visit notes, “I do feel this is at least contributed to by PTSD/psychologic factors, as well as in part by physical deconditioning, though the somewhat controversial "Gulf War Syndrome" could explain his myriad of symptoms”. Pursuant to the September 2020 Board remand, the Veteran was afforded another Gulf War examination and a VA respiratory conditions examination. The Veteran was diagnosed with dyspnea and atypical chest pain. The examiner noted that dyspnea and atypical chest pain were diagnosed based on the evidence of record and its cause is not known. The examiner further noted that the diagnosed dyspnea and atypical chest pain represents a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology and that no medical opinion or rationale is required as these conditions are presumed to be caused by service in the Southwest Asia theater of operations. In an October 2020 addendum medical opinion, the same VA examiner opined that the Veteran’s diagnosed dyspnea and atypical chest pain are less likely than not (less than 50 percent probability) proximately due to, the result of or aggravated by the Veteran's service-connected PTSD. The VA examiner reasoned that that dyspnea and atypical chest pain symptoms are not associated with or aggravated by the Veteran’s PTSD symptoms or PTSD exacerbations as the occurrence of the dyspnea and atypical chest pain is independent of the PTSD and any PTSD associated symptoms. It is therefore difficult to associate the diagnosed dyspnea or atypical chest pain with the service-connected PTSD. As the record contains at least one competent medical opinion finding the diagnosed dyspnea and atypical chest pain represents a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, the Board finds that, allowing the Veteran the benefit of the doubt, the evidence is at least in equipoise as to whether the Veteran's dyspnea and atypical chest pain represents a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology. The Board recognizes that the presumption applies to disabilities that became manifest either during service in Southwest Asia or to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317. February 2019 Pulmonary function testing disclosed FEV-1 to Forced Vital Capacity (FVC) indicated 79 percent pre-bronchodilator and 82 percent post-bronchodilator. The physicians indicated that this test most accurately reflects the Veteran's level of disability. In this case, the Board notes that although the October 2020 VA examiner noted that the Veteran’s respiratory condition the use of inhaled medication or oral bronchodilators, VA treatment records show the Veteran has been prescribed albuterol inhaler during the appeal period. As symptoms controlled by intermittent inhalational or oral bronchodilator therapy are assigned a compensable rating under 38 C.F.R. § 4.97, DC 6602, the Board finds that the Veteran's disability manifested to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317. As to functional impacts, the October 2020 VA examiner indicated that the Veteran exertional activities cause shortness of breath. (Continued on the next page)   Based on the above, service connection for dyspnea manifested shortness of breath and atypical chest pain, due to an undiagnosed illness or as a symptom of a medically unexplained chronic multisymptom illness, is granted. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Romero-Sanchez, 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.