Citation Nr: 21073623 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 16-43 979 DATE: December 9, 2021 ORDER Entitlement to presumptive service connection for asthma is granted. Entitlement to presumptive service connection for functional dyspepsia is granted. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to asthma and/or posttraumatic stress disorder (PTSD) with alcohol abuse disorder, is remanded. Entitlement to service connection for hypertension, to include as secondary to PTSD with alcohol abuse disorder, vertigo, and/or asthma, is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for chronic fatigue syndrome (CFS) is remanded. Entitlement to direct service connection for asthma is remanded. FINDINGS OF FACT 1. The Veteran had active service in Southwest Asia from December 2004 to November 2005. 2. The Veteran has a current diagnosis of asthma that manifested within 10 years of separation from a period of service, including service in Southwest Asia, and no intercurrent etiology of asthma is shown. 3. The Veteran has a current diagnosis of functional dyspepsia with signs and symptoms of pyrosis and substernal pain and no intercurrent etiology of dyspepsia is shown. CONCLUSIONS OF LAW 1. The criteria for entitlement to presumptive service connection for asthma are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.320. 2. The criteria for entitlement to presumptive service connection for functional dyspepsia are met. 38 U.S.C. §§ 1110, 1113, 1117, 1118, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317, 4.3, 4.27, 4.114, Diagnostic Code 7399-7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 2004 to December 2005, including service in Southwest Asia (Iraq), with additional verified and unverified active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA), including a period of verified ACDUTRA from January 1994 to June 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2014, December 2014, and November 2018 rating decisions by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In March 2021, the Veteran testified at a virtual hearing before the undersigned. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence showing (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran served in the Southwest Asia theater of operations (Iraq) from December 2004 to November 2005. See DD Form 214. Service connection may be granted for certain disabilities occurring in Persian Gulf veterans, specifically when a Persian Gulf veteran exhibits objective indications of a qualifying chronic disability (including functional gastrointestinal disorders such as functional dyspepsia), provided that such disability: (1) became manifest either during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2026 and (2) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317. VA amended its regulations governing service connection during the pendency of the appeal. Effective August 5, 2021, presumptive service connection may be granted for certain qualifying chronic disabilities (including asthma) related to exposure to particulate matter. A veteran who has a qualifying period of service in the Southwest Asia theater of operations during the Persian Gulf War, or service in Afghanistan, Syria, Djibouti, or Uzbekistan on or after September 19, 2001, may be granted service connection for qualifying chronic disability that manifests to any degree (including non-compensable) within 10 years from the date of separation from service that includes a qualifying period of service. See 38 C.F.R. § 3.320. 1. Entitlement to presumptive service connection for asthma is granted. The Veteran asserts his asthma is related to his service in Southwest Asia. The Board agrees. The Veteran has a current diagnosis of asthma that manifested within 10 years of his separation from service in Iraq. See, e.g., December 17, 2014 VA Physician Assistant Note. In a November 2005 post-deployment health assessment, he reported often being exposed to sand and dust. See STRs. No intercurrent etiology is shown, and he reported that he does not smoke. See, e.g., September 5, 2019 VA Treatment Note. Accordingly, as the criteria for presumptive service connection based on particular matter exposure are met, the appeal as to this issue is granted. However, as direct service connection may allow a more favorable effective date of benefits, that theory of service connection is addressed in the remand section below. 2. Entitlement to presumptive service connection for functional dyspepsia is granted. The Veteran asserts that he is entitled to presumptive service connection for functional dyspepsia. The Board agrees. A November 2014 VA examiner diagnosed the Veteran with functional dyspepsia and explained that this was a diagnosable but medically unexplained chronic multisymptom illness (MUCMI). See November 2014 VA Examination Reports. However, the AOJ denied presumptive service connection because it found that this disorder had not manifested to a degree of at least 10 percent disabling. Functional dyspepsia is not listed in VA's rating schedule. The Board finds that hiatal hernia is an appropriate Diagnostic Code for rating this unlisted condition as it includes similar symptoms and involves the same body system. Hiatal hernia is rated under 38 C.F.R. § 4.114, Diagnostic Code 7346. A 30 percent rating is warranted where there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 10 percent rating is warranted where there are two or more symptoms for the 30 percent rating of less severity. The November 2014 VA examiner noted pyrosis. Moreover, the Veteran has competently and credibly reported substernal pain and this has not been attributed to any other etiology; the Board resolves this reasonable doubt in favor of the Veteran. Thus, as at least two symptoms of the 30 percent rating are shown, the Veteran meets the criteria for at least a 10 percent rating under Diagnostic Code 7346. Accordingly, all the criteria for presumptive service connection for functional dyspepsia are met and the appeal as to this issue is granted. The Board acknowledges this grant also addresses presumptive service connection. However, unlike the presumptive regulations relating to particular matter exposure, the presumption for functional dyspepsia predates the period on appeal and thus the Veteran's effective date will not be limited by a grant on a presumptive basis. REASONS FOR REMAND 3. Entitlement to service connection for sleep apnea, to include as secondary to asthma and/or PTSD with alcohol abuse disorder, is remanded. Remand is necessary for an addendum opinion. In this regard, the September 2019 examiner's opinion only considered secondary service connection and is inadequate, as it does not address aggravation. On remand, an opinion should be obtained addressing direct and secondary service connection. Moreover, the examiner should consider the Veteran's newly service-connected asthma as a potential etiology, as well as his PTSD with alcohol abuse. Additionally, the September 2019 examiner's opinion notes that nasal congestion and craniofacial abnormality is related to sleep apnea. The Veteran's STRs show that he was struck in the nose and head with a part he was replacing in service. See September 7, 2005 STR. Indeed, this incident has been noted as the cause of his vertigo. See January 27, 2016 VA Treatment Note. Updated VA and private treatment records should also be secured. 4. Entitlement to service connection for hypertension, to include as secondary to PTSD with alcohol abuse disorder, vertigo, and/or asthma, is remanded. Remand is necessary, as the most recent VA examination noted that the Veteran did not have a diagnosis of hypertension. However, at the Board hearing the Veteran reported that he was being medicated for hypertension; moreover, his VA treatment notes show a recent blood pressure reading of 164/102 and treatment for high blood pressure. See August 12, 2019 VA Treatment Note. On remand, he should be afforded an updated examination and a medical opinion should be secured. 5. Entitlement to service connection for a left knee disability is remanded. Remand is necessary, as the rationale for the November 2014 examiner's opinion impermissibly relies on an absence of evidence. On remand, an adequate medical opinion should be secured. To ensure the opinion is adequate, the Veteran should be afforded an updated examination. 6. Entitlement to service connection for left ear hearing loss is remanded. The Veteran was denied service connection for left ear hearing loss due to not meeting the threshold for a current hearing loss disability, notwithstanding that the examiner opined that his left ear hearing impairment was most likely due to service. See March 2014 Audiology Examination Report. However, at the Board hearing he competently and credibly reported a decrease in hearing acuity. He should be afforded an updated examination as to the severity of his hearing loss. 7. Entitlement to service connection for fibromyalgia is remanded. 8. Entitlement to service connection for CFS is remanded. Remand is necessary, as the November 2014 examiner opined that the Veteran did not have a current diagnosis of fibromyalgia or chronic fatigue syndrome and explained that his muscle and joint aches was most likely due to vitamin D deficiency. However, this has since been treated, see, e.g., January 31, 2017 VA Primary Care Letter, but the Veteran's symptoms have not resolved, see Board Hearing Transcript. On remand, an updated examination as to the presence of a current diagnosis of fibromyalgia and chronic fatigue syndrome should be secured, along with explanatory medical opinions. 9. Entitlement to direct service connection for asthma is remanded. On remand, the Veteran should be afforded an examination and a medical opinion should be secured as to whether it is at least as likely as not that his asthma is etiologically related to conceded exposures in service. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. After completing #1 and #2, schedule the Veteran for an examination addressing the nature and etiology of his sleep apnea. The claims file should be made available to and should be reviewed by the examiner. Any necessary tests should be performed. The examiner should address the following: (a) Please opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea had its onset during or is otherwise etiologically related to his active duty service, to include in Southwest Asia during the Persian Gulf War as well as the Veteran's in-service nasal trauma. In addressing this question, the examiner should address conceded exposures to particular matter, as well as the incident noted in his STRs where he was struck in the face and nose by a vehicle part. See September 7, 2005 STRs. The examiner is advised that the Veteran's vertigo has been attributed to this incident by a VA examiner. See, e.g., January 27, 2016 VA Treatment Note. Additionally, the examiner should address the lay statement submitted by the Veteran's son as to his symptoms during and after service. See March 2021 Correspondence. (b) Please opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea is proximately due to service-connected disabilities, to include asthma and/or PTSD with alcohol abuse. (c) Please opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea has been aggravated (worsened beyond natural progression) by his service-connected disabilities, to include asthma and/or PTSD with alcohol abuse. In addressing sub-parts (b) and (c) of this question, the examiner is advised that the opinion should not be premised on the effective date of service connection for asthma, and any negative opinion relying on that date will be returned as inadequate. Please address each sub-part of this question separately. A complete rationale must be provided for all opinions expressed. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why this is the case. 4. After completing #1 and #2, schedule the Veteran for an examination addressing the nature and etiology of his claimed hypertension. The claims file should be made available to and should be reviewed by the examiner. Any necessary tests should be performed. The examiner should address the following: (a) Please opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension had its onset during or is otherwise etiologically related to his active duty service, to include exposure events in Southwest Asia during the Persian Gulf War. (b) Please opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's claimed hypertension is proximately due to service-connected disabilities, to include vertigo, PTSD with alcohol abuse, and/or asthma. (c) Please opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea has been aggravated (worsened beyond natural progression) by his service-connected disabilities, to include asthma and/or PTSD with alcohol abuse. Please address each sub-part of this question separately. A complete rationale must be provided for all opinions expressed. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why this is the case. 5. After completing #1 and #2, schedule the Veteran for an examination addressing the nature and etiology of his left knee disability. The claims file should be made available to and should be reviewed by the examiner. Any necessary tests should be performed. The examiner should address the following: (a) Please diagnose all current left knee disorders. (b) For each disorder diagnosed in subpart (a), please opine as to whether it is at least as likely as not (50 percent or greater probability) that such disorder had its onset during or is otherwise etiologically related to his active duty service, to include the cumulative impact of his duties in Southwest Asia during the Persian Gulf War. In addressing this question, the examiner should accept as true the Veteran's competent and credible reports of overusing his left knee while working on a wrecker in Iraq. See, e.g., March 2021 Hearing Transcript at 17-18. In addressing this question, the examiner is advised that any opinion that relies wholly on the absence of evidence of treatment will be returned as inadequate. A complete rationale must be provided for all opinions expressed. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why this is the case. 6. After completing #1 and #2, schedule the Veteran for an examination addressing the current severity of his hearing loss. The claims file should be made available to and should be reviewed by the examiner. Any necessary tests should be performed and all findings should be reported in detail. Please note no nexus opinion is needed as to the etiology of the Veteran's left ear hearing loss. 7. After completing #1 and #2, schedule the Veteran for an examination addressing whether the Veteran has a current diagnosis of fibromyalgia. The claims file should be made available to and should be reviewed by the examiner. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a diagnosis of fibromyalgia, or has had a diagnosis during the pendency of the appeal (i.e. since August 2014) even if subsequently resolved. A complete rationale must be provided for all opinions expressed. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why this is the case. 8. After completing #1 and #2, schedule the Veteran for an examination addressing whether the Veteran has a current diagnosis of chronic fatigue syndrome. The claims file should be made available to and should be reviewed by the examiner. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a diagnosis of chronic fatigue syndrome, or has had a diagnosis during the pendency of the appeal (i.e. since August 2014) even if subsequently resolved. A complete rationale must be provided for all opinions expressed. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why this is the case. 9. After completing #1 and #2, schedule the Veteran for an examination addressing the nature and etiology of his asthma. The claims file should be made available to and should be reviewed by the examiner. Any necessary tests should be performed. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's asthma had its onset during or is otherwise etiologically related to his active duty service, to include as due to conceded particulate exposures or other environmental exposures in Southwest Asia (Iraq). A complete rationale must be provided for all opinions expressed. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why this is the case. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, 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.