Citation Nr: 21069141 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-26 166 DATE: November 17, 2021 ORDER Entitlement to service connection for a respiratory condition is denied. REMANDED Entitlement to service connection for a gastrointestinal disorder, including rectal bleeding is remanded. FINDING OF FACT The preponderance of the evidence weighs against finding that the Veteran had a respiratory disorder, or symptoms of which are due to an undiagnosed illness related to service in the Persian Gulf. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder, to include as a manifestation of an undiagnosed illness are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1962 to November 1964 and November 1990 to May 1991, to include service Southwest Asia Theater of Operations during the Persian Gulf War. See DD 214. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in January 2015. His surviving spouse has been substituted as the appellant for purposes of processing the appeal to completion under the provisions of 38 U.S.C. § 5121A. The appellant appeared at a Board hearing before the undersigned Veterans Law Judge in October 2019. A transcript of the hearing is in the Veteran's file. These matters were previously before the Board in July 2020, at which time it was remanded for a further development. These claims are once again before the Board. 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). Service connection also may be warranted for a Persian Gulf War 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, 2026. 38 C.F.R. § 3.317 (a). 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. An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. 38 C.F.R. § 3.317 (a)(1)(ii). A medically unexplained chronic multi-symptom illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. 38 C.F.R. § 3.317 (a)(2)(ii). It 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). Signs or symptoms that may be a manifestation of an undiagnosed illness or a medically unexplained chronic multi-symptom illness include, but are not limited to the following: fatigue; signs or symptoms involving the skin; headache; muscle pain; joint pain; neurologic signs or symptoms; neuropsychological signs or symptoms; signs or symptoms involving the respiratory system (upper or lower); sleep disturbances; gastrointestinal signs or symptoms; cardiovascular signs or symptoms; abnormal weight loss; and menstrual disorders. 38 C.F.R. § 3.317 (b). For purposes of section 3.317, 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). If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Entitlement to service connection for a respiratory condition The appellant contends that the Veteran's respiratory condition, to include lung failure was due to his Gulf War service. Specifically, she contends it was due exposure to oil well fires while serving in the Gulf. Service treatment records (STRs) are silent for any complaints, diagnosis, or treatment of any respiratory condition. The Veteran's April 1991 discharge examination noted no breathing problems, chest pain or chronic cough. The Veteran noted he was in good health. In a January 2012 Gulf War general examination, the examiner did not find any respiratory conditions. Private treatment records from February 2016 show the Veteran was diagnosed with lung failure causing loss of breath. The Veteran's diagnosis included several other conditions, including prostate cancer, coronary heart disease, colon cancer, multiple lung nodules, wheezing, pulmonary hypertension, and chronic airway obstruction. In an April 2017 VA medical opinion, the examiner stated there is no medical evidence that the Veteran had a lung condition, including lung failure due to service or any exposure to service in the Gulf War. The Board found this opinion inadequate and remanded for another opinion. In a September 2021 VA medical opinion, the examiner found that the Veteran's respiratory failure was likely secondary to his healthcare associated pneumonia, metastatic colon cancer and ST segment elevation myocardial infarction, all of which are well-established to potentially cause respiratory failure in medical literature. He found that there was no evidence that any of these conditions were related to specific events or exposures during service or had any initial manifestations during service. Further, he noted there are no alternative more likely etiologies of respiratory failure. The Board gives great probative weight to the VA examiner's opinion because it is based on a review of the Veteran's in-service and post-service medical records and provides adequate rationale for the conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the Veteran is not shown to have an undiagnosed illness manifested by respiratory symptoms. VA examiners did not any find objective signs or symptoms which may be manifestations of an undiagnosed illness or medically unexplained chronic multi-symptom illness. Rather, the Veteran's respiratory symptoms have been specifically attributed to known diagnoses, namely pneumonia, colon cancer and myocardial infarction, which are not conditions for which the Secretary has determined a presumption of service connection is warranted under 38 C.F.R. § 3.317(c). There are no contrary medical opinions, and no competent medical evidence indicating that the Veteran's symptoms were related to service, to include due to an undiagnosed illness, a medically unexplained chronic multi-symptom illness, or a pulmonary condition. While the appellant believes the Veteran had a diagnosis of a respiratory disorder, to include lung failure, she does not have the training or credentials to provide a competent opinion. The cause of his symptoms related to a complicated internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, which in this case is the September 2021 medical opinion. Thus, the Board finds that service connection is not warranted for an undiagnosed or medically unexplained chronic multi-symptom illness manifested by respiratory symptoms. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim is denied. See 38 U.S.C. § 5107. REASONS FOR REMAND Entitlement to service connection for a gastrointestinal disorder including rectal bleeding is remanded. In the July 2020 remand, the Board sought a medical opinion that specifically discussed the Veteran's symptom of rectal bleeding. The September 2021 examiner stated that the Veteran's associated gastrointestinal condition represents metastatic colon cancer. The Veteran was diagnosed with colon cancer in February 2003, but treatment records clearly note rectal bleeding prior to his diagnosis. November 1994 VA treatment records show the Veteran complained of passing blood in his stool for a long time, mostly when he gets constipated, despite a normal rectal exam. Further, the Veteran's STRs show, at the April 1991 discharge examination, the Veteran checked yes to the question of whether he has ever had or now has a rectal disease and any recent weight change. The doctor noted that he had subclinical hemorrhoids for the last 2 years. This was corroborated by the Veteran's April 1988 retention examination, which indicated a digital rectal exam showed external hemorrhoids. Accordingly, a remand is warranted to obtain a clarifying VA medical opinion to address rectal bleeding prior to the Veteran's diagnosis of colon cancer. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion to determine the etiology of any gastrointestinal disability, that contemplates any rectal bleeding the Veteran had during his lifetime. The entire claims file should be made available to and be reviewed by the examiner. The examiner should opine whether it is at least as likely as not (50 percent probability or more) that any gastrointestinal disability, including one manifested by rectal bleeding, was related to his period of active service, to include whether the Veteran had a gastrointestinal disability that was an undiagnosed illness or a manifestation of a medically unexplained chronic multi-symptom illness due to his service in Southwest Asia. The examiner should specifically note and comment on the April 1991 reference to a history of piles or rectal disease indicated in a service record, and the November 1994 VA treatment note reference to a history of rectal bleeding and positive hemoccult, all of which was prior to his 2003 diagnosis of colon cancer. A complete rationale for the conclusions expressed should be provided. (Continued on the next page) 2. Thereafter, readjudicate the issue. M. E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jaigirdar, 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.