Citation Nr: 21063432 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 09-43 608 DATE: October 14, 2021 ORDER Entitlement to service connection for residuals of heat exposure is denied. Entitlement to service connection for respiratory condition is denied. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War. 2. The probative evidence of record does not show that the Veteran suffers from a heat residual disability, to include dizziness, that is the result of active-duty service. 3. The probative evidence of record does not show the Veteran suffers from a respiratory disability, to include asthma, that is the result to his active-duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of heat exposure have not been met. 38 U.S.C. §§ 1110, 1154; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317. 2. The criteria for service connection for respiratory condition have not been met. 38 U.S.C. §§ 1110, 1154; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Representation A power of attorney, executed on either VA Form 21-22, "Appointment of Veterans Service Organization as Claimant's Representative," or VA Form 21-22a, "Appointment of Attorney or Agent as Claimant's Representative," is required to represent a claimant before VA and to authorize VA's disclosure of information to any person or organization representing a claimant before the Department. On April 8, 2021, the Veteran and attorney John S. Berry, Jr. executed and submitted a VA Form 21-22a, appointing Mr. Berry as the Veteran's representative. On July 28, 2021, the Veteran's attorney submitted a notice of revocation of his limited power of attorney. After an appeal to the Board of Veterans' Appeals (Board) has been filed, a representative may not withdraw services as representative in the appeal unless good cause is shown on motion. 38 C.F.R. § 20.6. As such a motion has not been submitted, Mr. Berry remains the Veteran's representative of record. Jurisdiction The Veteran had active duty service in the United States Army from October 2001 to February 2002, from January 2003 to December 2003, and a period of active duty for training (ACDUTRA) from October 2001 to February 2002, with additional time served in a reserve unit. This matter originally came before the Board on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA). The Board previously remanded both issues in July 2011 and July 2013 decisions. In June 2017, the Board remanded the issue of entitlement to service connection for asthma but denied the claim of entitlement to service connection for residuals of heat exposure. The Veteran appealed the denial of the heat exposure claim to the United States Court of Appeals for Veterans Claims (Court). In July 2018, the Court vacated the Board's denial of entitlement to service connection for the residuals of heat exposure and remanded it for additional evidentiary development. In March 2019 and July 2020, the Board remanded both captioned issues for additional evidentiary development. In July 2020, the Board recharacterized the Veteran's previously adjudicated issue of entitlement to service connection for asthma, to one for a respiratory disability, per Clemmons v. Shinseki, 23 Vet. App. 1 (2009). This remand also ordered the Agency of Original Jurisdiction (AOJ) to afford the Veteran new VA examinations. In a June 12, 2021 communication, the Veteran indicated that he did not wish to report for any further examinations. As such, the Board finds that there has been substantial compliance with the July 2020 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (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). Persian Gulf War Service Service connection may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). The term chronic means that the disability has existed for six months or more, to include intermittent episodes of improvement or worsening over that period. 38 C.F.R. § 3.317(a)(4). Here, the Veteran had active service in Kuwait and Iraq from February 2003 through October 2003. Therefore, he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). A threshold requirement for presumptive service connection for a MUCMI is that the diagnosed condition be chronic and that it manifest to a degree of 10 percent or more by December 31, 2021. In this instance, the Veteran has not been diagnosed with any residuals of a heat stroke. Accordingly, presumptive service connection as a MUCMI is not warranted. When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). ANALYSIS 1. Entitlement to service connection for the residuals of heat exposure The Veteran contends that his currently diagnosed respiratory disabilities and claimed residuals of heat exposure, to include dizziness and blurred vision, are either the result of active-duty service or due to his service in the Persian Gulf. The Board finds that the medical evidence of record does not reflect that the Veteran has a current diagnosis of heat related residuals, nor has he at any time. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). During his March 2020 VA examination, the Veteran's condition was found to be less likely than not incurred in or caused by the claimed in-service injury, event, or disease. The VA examiner rationalized that there was no evidence of chronic residuals related to heat exposure. There was no evidence of proneness to dehydration or another heat related ailment. The VA examiner explained that evidence-based medicine does not support ongoing residuals to his type of heat exposure- which typically resolves within a week. The VA examiner further rationalized that the only symptom reported, dizziness, was an associated symptom of the Veteran's acute anxiety episodes. The VA examiner explained that the Veteran reported that he would often get dizzy when he felt shortness of beath, relating them together, and stating it was like panicking. The examiner found that there was no chronic "dizziness," and the Veteran's records point to his anxiety as the cause of any dizziness. The VA examiner further opined that the Veteran's dizziness was not a separate and distinct condition or issue. The Veteran provided no evidence to demonstrate a diagnosis of heat residuals or a separate dizziness condition. Of note, the July 2020 Board decision remanded this issue for a new examination with an opinion addressing whether the dizziness was also related to his claimed respiratory condition on appeal. However, the Veteran refused to attend the examinations. The Board notes that the duty to assist the Veteran in the development of evidence pertinent to his claim is not a "one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As such, the claim is decided on the evidence of record. See 38 C.F.R. § 3.655(b) (providing when a claimant fails to report without good cause for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record). Accordingly, the Board finds the March 2020 VA opinion to be of significant probative value in determining the Veteran does not currently suffer from a heat residual related condition, to include dizziness. The Board notes that the probative value of medical opinion evidence is based on the medical experts' personal examination of the patient, their knowledge, and skill in analyzing the data, and their medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Here, the examiner demonstrated knowledge of the Veteran's background and based the opinion on the Veteran's lay contentions, the physician's medical knowledge, and examination of the Veteran. Additionally, a complete and thorough rationale was provided for the opinion rendered and is consistent with the medical evidence of record. See Guerrieri, supra. The Board acknowledges that the Court has previously held that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, however, the record does not reflect the Veteran has had a heat residual condition at any time, as the Veteran has provided no medical evidence showing such diagnosis or treatment for the claimed condition. The Board additionally acknowledges that the Veteran has also contended that his heat residuals and/or dizziness is due to an undiagnosed illness as a result of his service in Southwest Asia. However, the Veteran has not provided any medical records documenting a heat residual condition, and the March 2020 VA examiner found that the Veteran did not suffer from a heat residuals condition in general that is related to his service. Additionally, the examiner found that the Veteran's claimed heat residual symptom of dizziness is more than likely a symptom of his acute anxiety. Therefore, the condition does not meet the requirements of presumptive service connection under 38 U.S.C. § 1117, 38 C.F.R. § 3.317. In light of the foregoing, the Board concludes that the preponderance of evidence is against the claim and the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). 2. Entitlement to service connection for respiratory condition The Veteran contends that he currently suffers from a respiratory condition, to include asthma, that is related to his active-duty service. The Board finds that the medical evidence of record does not reflect that the Veteran has a current diagnosis of respiratory disability nor has he at any time. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). In January 2012, the Veteran received a VA examination. The examiner opined that the Veteran's respiratory condition was less likely than not incurred in or caused by the claimed in-service event or injury. The examiner rationalized the Veteran's records show an intermittent history of breathing problems unrelated to any lung condition. The examiner further explained that the Veteran's symptoms when he was stationed in Iraq were in response to the Iraq environment without prolongation of symptoms such as those found in asthma. The examiner explained there was no objective finding of asthma evidenced by pulmonary function tests (PFT) and current short of breath symptoms are related to episodes unrelated to a lung condition. The examiner further explained that the Veteran by history improved and there was no current objective evidence of asthma. The Veteran also reported that asthma medication is not helpful and therefore, showing the unlikelihood of asthma. The examiner stated that the Veteran's breathing condition is impacted by his smoking habit. In January 2018, the Veteran attended another VA examination. The Veteran opined that the Veteran's claimed condition was less likely than not incurred or caused by the claimed in-service event or injury. The examiner rationalized that the Veteran has had multiple normal PFT studies. The examiner noted that the Veteran's 2004 methacholine challenge testing was interpreted as positive, and the Veteran has a 15-year tobacco history. The examiner explained that methacholine testing can produce a false positive. A positive test, which indicated bronchial hyperresponsiveness, is not entirely specific for asthma. The examiner further explained that it is difficult to calculate the exact sensitivity of methacholine challenge for a diagnosis of asthma, as a gold standard for diagnosing asthma does not exist and while sensitivity of the test in diagnosing clinically significant asthma is excellent, specificity of the test is poor. The examiner provided that since there are many conditions, to include smoking, which have been associated with bronchial hyperreactivity, a positive test must be interpreted cautiously. Therefore, the Veteran does not have a diagnosis of asthma or any other respiratory disease process. Most recently, the Veteran was provided a VA examination in March 2020. The examiner opined that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner rationalized there was no evidence of a chronic pulmonary condition during active-duty service nor since. The examiner noted that multiple PFTs and radiographs in the Veteran's records are essentially normal, with the exception of the 2004 methacholine test, which showed bronchial hyperresponsiveness. The examiner stated that in the setting of chronic smoking, this would not be considered a diagnostic for asthma, but rather bronchial hyperresponsiveness due to smoking. The examiner further explained that the Veteran was treated for a few acute transitory upper respiratory infections (URI) in the past, but no chronic disease. The examiner again noted that the Veteran's chronic tobaccoism explains his symptomatic history otherwise. The Board recognizes that a March 2016 examiner noted a diagnosis for asthma. However, the Board notes that the March 2016 examiner is the same examiner who conducted and provided the January 2018 examination and opinion, in which, the examiner found the Veteran never had a respiratory condition. The Board notes that every examination prior to the March 2016 examination and after has found that the Veteran does not have respiratory condition. Further, VA treatment records only note asthma as reported by the Veteran with no actual diagnosis or treatment for such condition. Therefore, the Board finds that the probative evidence of record does not establish that the Veteran has a respiratory condition. The Veteran refused to attend the VA examinations that were scheduled following the Board's July 2020 remand. The Board reiterates that the duty to assist the Veteran in the development of evidence pertinent to his claim is not a "one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thus, the claim is decided on the evidence of record. See 38 C.F.R. § 3.655(b) (providing when a claimant fails to report without good cause for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record). Therefore, the Board finds the January 2012, January 2018, and March 2020 VA opinions to be of significant probative value in determining the Veteran does not currently suffer from a respiratory condition, to include asthma, that is related to his active-duty service. The Board notes that the probative value of medical opinion evidence is based on the medical experts' personal examination of the patient, their knowledge, and skill in analyzing the data, and their medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Here, the examiner demonstrated knowledge of the Veteran's background and based the opinion on the Veteran's lay contentions, the physician's medical knowledge, and examination of the Veteran. Additionally, a complete and thorough rationales were provided for the opinions rendered and are consistent with the medical evidence of record. See Guerrieri, supra. The Board acknowledges that the Court has previously held that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, however, the record does not reflect the Veteran has had a respiratory condition at any time, as the Veteran has provided no medical evidence showing such diagnosis or treatment for the claimed condition. Moreover, the Board again notes that although the March 2016 examiner noted an asthma diagnosis, every examiner prior to the March 2016 examination and after has found the Veteran has not had a respiratory condition at any time since his service, to include the January 2018 VA opinion, which was provided by same examiner who conducted the March 2016 examination. Thus, the probative evidence of record weighs heavily in favor of the Veteran not suffering from a respiratory condition, to include asthma. The Board acknowledges that the Veteran has also contended that his respiratory condition is due to an undiagnosed illness as a result of his service in Southwest Asia. However, the March 2020 VA examiner found that the Veteran did not suffer from a respiratory condition in general that is related to his service. Additionally, multiple examiners, to include the March 2020 and January 2018 examiners, have found that the Veteran's symptoms of difficulty breathing and/or bronchial hyperresponsiveness are more than likely due to his chronic tobacco smoking. Therefore, the condition does not meet the requirements of presumptive service connection under 38 U.S.C. § 1117, 38 C.F.R. § 3.317. In light of the foregoing, the Board concludes that the preponderance of evidence is against the claim and the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). K. A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Negron, 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.