Citation Nr: 21072899 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 18-24 214 DATE: December 6, 2021 ORDER Service connection for granulomata, claimed as neoplasms of the respiratory system, is denied. REMANDED Entitlement to service connection for pulmonary nodules is remanded. Entitlement to service connection for an abdominal aortic ectasia is remanded. Entitlement to a compensable disability rating for bilateral hearing loss is remanded. FINDING OF FACT The Veteran's granulomata is not shown to be causally or etiologically related to any disease, injury, or incident during service, to include occupational or environmental exposures coincident with service in Southwest Asia. CONCLUSION OF LAW The criteria for service connection for granulomata, claimed as neoplasms of the respiratory system, have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 1987 to August 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in May 2015 and December 2018 by a Department of Veterans Affairs (VA) Regional Office. In April 2021, the Veteran testified before the undersigned at a Board hearing. A transcript of that hearing has been associated with the record. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may also be granted for a disability due to a qualifying chronic disability of a veteran who served in the Southwest Asia Theater of operations during the Persian Gulf War provided that such disability became manifest during either active service in the Southwest Asia Theater of Operations during the Persian Gulf War or to a degree of 10 percent or more, under the appropriate diagnostic code of 38 C.F.R. § Part 4, not later than December 31, 2021, and by history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). In the instant case, the record reflects that the Veteran served in Southwest Asia from August 1990 to April 1991 during the Persian Gulf War and, therefore, such laws and regulations are applicable to his claim. A chronic qualifying disability means a chronic disability resulting from an (A) undiagnosed illness; (B) the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection. 38 C.F.R. § 3.317 (a)(2)(i). For the purposes of this section the term medically unexplained chronic multisymptom 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 multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). "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). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-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). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to: (1) fatigue, (2) unexplained rashes or other dermatological signs or symptoms, (3) headache, (4) muscle pain, (5) joint pain, (6) neurological signs and symptoms, (7) neuropsychological signs or symptoms, (8) signs or symptoms involving the upper or lower respiratory system, (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). With claims based on undiagnosed illnesses, the veteran is not required to provide competent evidence linking a current disability to an event during service. Gutierrez v. Principi, 19 Vet. App. 1 (2004). There must be no affirmative evidence that relates the undiagnosed illness to a cause other than being in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317 (c). If signs or symptoms have been attributed to a known clinical diagnosis in the particular veteran's case being considered, service connection may not be provided under the specific provisions pertaining to Persian Gulf Veterans. VAOPGCPREC 8-98 at paras. 4-5 (Aug. 3, 1998). The Veteran asserts that he developed granulomata as a result of service, to include in-service exposure to environmental hazards coincident with his service in Southwest Asia, to include burn pits. His service treatment records are silent as to any complaints or treatment related to the lungs. In May 2015, the Veteran underwent a VA examination in relation to his claim. At that time, the examiner performed x-ray testing and confirmed a diagnosis of pulmonary small calcified granulomas, in otherwise normal lungs. The condition was treated with daily inhalational bronchodilator therapy. On the question of etiology, the examiner concluded that it was less likely than not that the granulomata were due to the Veteran's service, to include his service in Southwest Asia. The examiner explained that the condition was not malignant and was in fact a common occurrence in most people who lived in the United States. He explained that certain areas of the country had environmental factors which caused such conditions to develop. Thus, the examiner concluded, the Veteran's condition was caused not by service but by environmental factors present in the Veteran's state of residence. The Board affords great probative weight to the May 2015 VA examiner's opinion as it considered all of the pertinent evidence of record and provided a complete rationale, relying on the records reviewed. Moreover, the examiner offered a clear conclusion with supporting data as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Notably, there is no medical opinion to the contrary. The Board also notes that, in February 2015 and October 2019, the Veteran underwent a VA Gulf War General Medical Examination. Testing on both occasions showed no diagnosed illnesses for which no etiology could be established, or any signs or symptoms which could represent an undiagnosed illness or diagnosed medically unexplained chronic multisymptom illness. In other words, based on the evidence of record, the Veteran's granulomata is a diagnosable illness with a partially explained pathophysiology and etiology. Thus, the provisions governing presumptive service connection for a qualifying chronic disability of a veteran who served in the Southwest Asia Theater of operations during the Persian Gulf War are inapplicable. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. In reaching this decision, the Board has considered the Veteran's statements in support of his claim. While he is competent to report his in-service and current respiratory symptoms, as well as the nature of his exposure to environmental toxins consistent with his service in Southwest Asia, the Board finds he is not competent to offer an opinion as to etiology, to include whether his symptoms are part of an undiagnosed illness or medically unexplained chronic multisymptom illness, since he does not possess the requisite medical knowledge to address such matters. Specifically, the diagnosis and etiology of such claimed symptoms and disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Therefore, as such is a complex medical question, the Veteran is not competent to offer an opinion as to the etiology of his granulomata; consequently, his opinion on such matter is afforded no probative weight. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, based on the foregoing, the Board finds that granulomata is not shown to be causally or etiologically related to any disease, injury, or incident during service, to include occupational or environmental exposures coincident with service in Southwest Asia. Thus, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim and that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The claim is denied. REASONS FOR REMAND Pulmonary nodules The Veteran seeks service connection for a respiratory condition he asserts developed as a result of his service in Southwest Asia. In February 2015, he underwent a Gulf War Examination, at which time it was determined that his condition was a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, without further explanation or rationale. In April 2015, VA sought clarification of this opinion from the examinerspecifically, the examiner was asked to provide a medical opinion as to whether the Veteran's disability pattern or diagnosed disease was related to his service in Southwest Asia. In response, however, an etiological opinion regarding the Veteran's granulomata was provided. No further explanation of the examiner's conclusion regarding pulmonary nodules was provided. Once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). Here, the February 2015 examination report does not address the etiology of the Veteran's condition. Thus, the Board finds that a remand is necessary to obtain an examination which properly addresses the Veteran's claim of service connection for pulmonary nodules. Abdominal aortic ectasia The Veteran asserts that he developed symptoms of a gastrointestinal disorder while in service, and that the condition persists to the present day. He attributes such symptomology to his exposure to environmental hazards while serving in Southwest Asia. Despite such assertions, he has not yet been provided with an examination regarding his claim. The Board finds that VA's duty to obtain a VA opinion has been triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that an examination is necessary if, inter alia, evidence indicates that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or service-connected disability). Bilateral hearing loss The Veteran last underwent a VA examination related to his service-connected bilateral hearing loss in December 2018. At the April 2021 hearing, he testified that his symptomology had worsened, and that he was scheduled to undergo additional audiological testing in the upcoming month. Given the credible allegations of worsening of the Veteran's disability, the Board finds that a more contemporaneous examination is needed to fully and fairly evaluate the Veteran's claim for an increased rating for bilateral hearing loss. See Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of disability, fulfillment of duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). In addition, the Board notes that the Veteran's file contains VA treatment records dated to April 2020. In light of his assertions of an additional audiological examination after that period, updated records should be associated with the file prior to scheduling an examination. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to ascertain the nature and etiology of his pulmonary nodules. The examiner is asked to address whether the Veteran's diagnosed pulmonary nodules are a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology or pathophysiology; a chronic multisymptom disability of unknown etiology; or a chronic multi-symptom illness with a partially explained etiology. If the examiner finds that the Veteran's pulmonary nodules are any such illness or disability, he or she is asked to provide an opinion as to whether it is at least as likely as not (that is, a 50 percent or greater probability) that such had its onset in or is otherwise related to the Veteran's period of service, to include exposure to environmental hazards while serving in the Persian Gulf. The examiner's attention is directed to the findings of the February 2015 medical opinion in which the Veteran's pulmonary nodules were determined to be a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology. A rationale for all opinions expressed must be provided. 2. Schedule the Veteran for a VA examination to ascertain the nature and etiology of his gastrointestinal disorder. The examiner is asked to address the following: a) whether the symptoms of the claimed gastrointestinal disorder are attributable to a known clinical diagnosis. b) whether the Veteran's disability pattern consistent with: (1) an undiagnosed illness; (2) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology or pathophysiology, (3) a diagnosable chronic multisymptom illness with a partially explained etiology and pathophysiology, or (4) a disease with a clear and specific etiology and diagnosis. c) If the examiner determines that the Veteran's disability pattern is a disease with a clear and specific etiology and diagnosis, then he or she should provide an opinion as to whether it is at least as likely as not (that is, a 50 percent or greater probability) that such diagnosed gastrointestinal disorder manifested during service, or that it is otherwise causally or etiologically related to a period of active-duty service, including the Veteran's Southwest Asia service. (Continued on the next page) The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 3. Associate updated VA treatment records with the file and provide the Veteran with an appropriate VA examination to determine the current severity of his bilateral hearing loss. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.