Citation Nr: 21074697 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 18-34 840 DATE: December 16, 2021 ORDER New and material evidence has been received sufficient to reopen the claim for entitlement to service connection for asthma (claimed as a respiratory disorder). Entitlement to service connection for asthma, as due to exposure to environmental hazards in the Persian Gulf War is granted. Entitlement to service connection for fibromyalgia, as due to an undiagnosed illness or medically unexplained chronic multisystem illnesses as a result of exposure to environmental hazards in the Persian Gulf War is granted. Entitlement to service connection for kidney cancer, as due to an undiagnosed illness or medically unexplained chronic multisystem illnesses as a result of exposure to environmental hazards in the Persian Gulf War is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The evidence received since the August 2015 rating decision is not cumulative or redundant and does raise a reasonable possibility of substantiating the claim for service connection for asthma. 2. The Veteran has verified service on active duty in the Southwest Asia theater of operations during the Persian Gulf War. 3. The Veteran is presumed to have been exposed to fine, particulate matter during his service in the Persian Gulf War; and the Veteran's asthma became manifest to a degree within 10 years from his date of separation from military service in Southwest Asia. 4. The Veteran has a current diagnosis of fibromyalgia, which is presumptively due to his service in the Persian Gulf War. 5. Resolving all reasonable doubt in favor of the Veteran, the Veteran's kidney cancer was etiologically related to his exposure to environmental hazards while serving in the Persian Gulf War. 6. TDIU is moot from March 14, 2013. 7. Prior to March 14, 2013, the evidence of record shows that the Veteran does not meet the percentage requirements for TDIU, as there are no service-connected disabilities. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen the claim for entitlement to service connection for asthma (claimed as a respiratory disorder). 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for asthma, as due to exposure to environmental hazards in the Persian Gulf War have been met. 38 U.S.C. § § §§ 1110, 1131, 5107; 38 C.F.R. § §§ 3.102, 3.303, 3.304, 3.310, 3.317. 3. The criteria for entitlement to service connection for fibromyalgia, as due to an undiagnosed illness or medically unexplained chronic multisystem illnesses as a result of exposure to environmental hazards in the Persian Gulf War have been met. 38 U.S.C. § § §§ 1110, 1131, 5107; 38 C.F.R. § §§ 3.102, 3.303, 3.304, 3.310, 3.317. 4. The criteria for entitlement to service connection for kidney cancer, as due to an undiagnosed illness or medically unexplained chronic multisystem illnesses as a result of exposure to environmental hazards in the Persian Gulf War have been met. 38 U.S.C. § § §§ 1110, 1131, 5107; 38 C.F.R. § §§ 3.102, 3.303, 3.304, 3.310, 3.317. 5. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from September 1985 to January 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from the July 2017 and December 2017 rating decisions issued by the Department of Veterans Appeals (VA) Regional Office (RO). In March 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a virtual hearing. A transcript of the hearing is of record. New and Material Evidence In general, a claim which has been denied in an unappealed rating decision or Board decision may not thereafter be reopened an allowed. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.200. An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The Board must consider the question of whether new and material evidence has been received to adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, then the Board's analysis must end, and what was previously determined by the RO in that regard becomes irrelevant. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). For VA purposes, "new" evidence is existing evidence not previously submitted to agency decision makers; and "material" evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, lay assertions of medical causation cannot serve as the predicate to reopen a claim under 38 U.S.C. § 5108. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). In Shade v Shinseki, 24 Vet. App. 110 (2010), the Court indicated that new and material evidence raises a reasonable possibility of substantiating the claim if, when considered with the old evidence, it at least triggers the duty to assist by providing a medical opinion. The Court also held that 38 C.F.R. § 3.156 (a) "must be read as creating a low threshold," and that "the phrase 'raises a reasonable possibility of establishing the claim' must be viewed as enabling rather than precluding reopening." Shade at 117. Furthermore, the Court noted that "[t]he Board's analysis of the issue of reopening must be confined to the subject of the existence of new and material evidence alone and must not be an outcome-based decision." Id. at 121. 1. New and material evidence has been received sufficient to readjudicate the claim for entitlement to service connection for asthma (claimed as a respiratory disorder). The Veteran was originally denied service connection for his asthma in an August 2015 rating decision. The Veteran did not appeal this decision. Therefore, the August 2015 rating decision constitutes a final decision. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156, 20.302, 20.1103. Subsequently, in April 2017, the Veteran filed a claim to reopen, which the RO denied in the July 2017 rating decision, finding that the Veteran's additional evidence submitted did not constitute new and material evidence under the applicable VA laws. The Board notes that the July 2017 rating decision on appeal represents the most recent decision regarding the issue of entitlement to service connection for asthma. The evidence of record at the time of the August 2015 rating decision included the Veteran's military personnel/service treatment records, VA and private treatment records noting treatment and complaints of a respiratory disorder, a VA examination diagnosing asthma, and a negative VA nexus medical opinion. In the August 2015 rating decision, the RO denied the Veteran's claim based on the negative VA nexus medical opinion. Since then, the VA has received additional VA and private treatment records, which further reflect treatments and diagnoses of respiratory disorders; a private positive medical opinion; a Board hearing; and lay statements from the Veteran regarding the nature and onset of his symptoms. Additionally, the Board notes that since the August 2015 rating decision, VA issued an interim final rule amending its adjudication regulations and establishing presumptive service connection for the chronic respiratory condition of asthma. As stated above, the Board must consider the old and new evidence of record, as a whole, in addressing whether reopening of the claim should be allowed. Therefore, given the low threshold, the Board finds that the additional evidence of record noted above is both new and material, as it relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim for entitlement to service connection for asthma. Accordingly, the Board finds that reopening of the claim is warranted. Service Connection Generally, to prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § § § 1110, 1131; 38 C.F.R. § § 3.303(a). Additionally, service connection may be granted on a secondary basis for a condition that is not directly caused by the Veteran's service. 38 C.F.R. § § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities, and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § § 3.310(b). Certain "chronic diseases" may be presumed to have been incurred in service if they manifest to a compensable degree within one year of separation from service; however, if the evidence of the record is insufficient to establish a disease was chronic in service, and/or manifested within the specified time period, then there must be a continuity of disease symptoms shown after discharge in order to warrant service connection. 38 C.F.R. § § 3.303(b). For Persian Gulf War veterans, service connection for chronic, undiagnosed illnesses (or a medically unexplained chronic multisystem illness such as fibromyalgia, chronic fatigue syndrome, or functional gastrointestinal disorders) arising from service in Southwest Asia during the Persian Gulf War may be established under 38 U.S.C. § 3.317. Under those provisions, service connection may be established for objective indications of a chronic disability resulting from an undiagnosed illness or illnesses, provided that such disability (1) became manifest in service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021; and (2) by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. To fulfill the requirement of chronicity, the illness must have persisted for six months. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Signs and symptoms which may be manifestations of undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychology 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) Effective August 5, 2021, VA issued an interim final rule amending its adjudication regulations and establishing presumptive service connection for three chronic respiratory health conditions, to include asthma, in association with presumed exposures to fine, particulate matter if it becomes manifest to any degree (including non-compensable) within 10 years from the date of separation from military service that includes a qualifying period of service. These presumptions apply to veterans with a qualifying period of service, i.e., who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, as well as in Afghanistan, Syria, Djibouti, or Uzbekistan, on or after September 19, 2001, during the Gulf War. See Presumptive Service Connection for Respiratory Conditions Due to Exposure to Particulate Matter, 86 Fed. Reg. 42724 (August 5, 2021), to be codified at 38 C.F.R. § 3.320. 2. Entitlement to service connection for asthma, as due to exposure to environmental hazards in the Persian Gulf War. The Veteran contends that his current respiratory disorder, diagnosed as asthma, is related to his service during the Persian Gulf War. As an initial matter, the Board notes the Veteran's service records confirm that he served in Southwest Asia theater of operations during the Persian Gulf War from August 1990 to March 1991. Therefore, the Veteran is presumed to have been exposed to fine, particulate matter during such time period, and further qualifies for presumptive service connection for the chronic respiratory disability of asthma. Service treatment records (STRs) are silent for any complaints, treatment, or diagnosis of a respiratory condition; however, it notes the Veteran had pharyngitis in 1980 and bronchitis in 1984. Post-service VA and private treatment records reveal complaints of and treatment for shortness of breath, with diagnoses of chronic obstructive pulmonary disease (COPD) and asthma given. In an August 2015 VA respiratory conditions examination, the examiner diagnosed the Veteran with asthma, and reported the onset to be in 1992, shortly after the Veteran's discharge, with symptoms of shortness of breath and a burning sensation in the lungs while he breathes. However, the examiner provided a negative nexus opinion, noting that the Veteran's condition has a clear and specific diagnosis, with no subjective complaints associated with an undiagnosed illness, nor does the Veteran's military history reveal a single event or constellation of series of events that occurred during service that may have resulted in exposure to environmental hazards. See C&P Exam, August 2015. In a January 2018 hearing before a Decision Review Officer (DRO) at the RO, the Veteran asserted that during his Gulf War service small dust particles would blow through the desert and he did not have a respiratory mask for cover, but instead only had a scarf or bandana to cover his mouth, which resulted in him later having breathing problems (shortness of breath) during active duty service. See Hearing Transcript, January 2018. During a March 2021 Board hearing, the Veteran testified that when he was deployed to Saudi Arabia it was extremely dusty all the time with him having no type of mask or respirator to protect himself from breathing in the dust or smoke from oil well fires. He started noticing regular breathing issues in the early/mid 1990's after he got out of service and started going to the doctor for treatment. The doctor informed him that he had mild asthma and prescribed him an inhaler for treatment, but the symptoms continued to get worse. [The Veteran and his representative informed that they tried to obtain these medical records (pre-2001) from the doctor's office, but they no longer exist]. See Hearing Transcript, March 2021. In a March 2021 private medical opinion, the physician noted the Veteran's diagnosis of COPD with asthma, and opined that it is at least as likely as not that the Veteran's COPD with asthma is due to his exposures to high levels of particulate matter during service in Saudi Arabia. The physician cited two medical literature articles regarding the relationship between COPD/asthma with particulate matter air pollution for support of his positive opinion. See Private treatment record, March 2021. Based on the above, the Board finds that the Veteran's asthma became manifest to a degree within 10 years from the date of his qualifying period of service in Southwest Asia as shown by the credible evidence of his symptoms of shortness of breath beginning in 1992 as reported in the August 2015 VA examination. McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (in determining the date entitlement arose, when an original claim for benefits is pending, the Board must determine when a claimant's disability manifested itself under all the "facts found" and "the date on which the evidence is submitted is irrelevant"); Traut v. Brown, 6 Vet. App. 495 (1994) (establishing service connection on a presumptive basis does not require that a chronic disease be diagnosed within the applicable time period; rather, symptoms that manifest within this time period may subsequently be determined to have been early manifestations of a chronic disease). The Board acknowledges that a qualifying disease will not be presumed service-connected if there is affirmative evidence that (1) the disease was not incurred during or aggravated by a qualifying period of service; or (2) the disease was caused by a supervening condition or event that occurred between the veteran's most recent departure from a qualifying period of service and the onset of the disease; or (3) the disease is the result of the veteran's own willful misconduct. Willful misconduct means an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of, or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1 (n)(1). However, notes that there is no affirmative evidence that the disease was not incurred in service. The August 2015 negative nexus opinion was made without knowledge of the presumption and the studies underlying it and therefore is not probative and cannot overcome the presumption. There is also no evidence that the disease was caused by a supervening condition or event or is the result of the Veteran's willful misconduct. As such, the Board concludes that service connection for the Veteran's asthma is warranted on a presumptive basis; and the claim is granted. 3. Entitlement to service connection for fibromyalgia, as due to an undiagnosed illness or medically unexplained chronic multisystem illnesses as a result of exposure to environmental hazards in the Persian Gulf War. The Veteran contends that he currently has fibromyalgia that is related to his service during the Persian Gulf War. Due to his service in Southwest Asia theater of operations during the Persian Gulf War, the Veteran qualifies for the presumptive service connection for disabilities resulting from an undiagnosed illness or medically unexplained chronic multi-symptom illness. 38 C.F.R. § 3.317. STRs reflect numerous complaints of and/or treatment for a widespread of musculoskeletal pain relating to the Veteran's back, neck, knees, shin, and headaches. Post-service VA and private treatment records reflect complaints and treatment for headaches, trouble sleeping, poor concentration, memory problems, and musculoskeletal pain (all of which are signs and symptoms of fibromyalgia); and a diagnosis of fibromyalgia was given as early as October 2017 due to his chronic myalgias, arthralgias, diffuse joint pain, and fatigue. In a November 2017 lay statement from the Veteran, he asserted that after returning from service in the Gulf War he started having bouts of fatigue and pain that would last for days, and over the past year these symptoms have become chronic. See Correspondence, November 2017. In a November 2017 VA fibromyalgia examination, the examiner noted the Veteran does not have a diagnosis of fibromyalgia. See C&P Exam, November 2017. During a March 2021 Board hearing, the Veteran testified that he received a lot of treatment for his fibromyalgia, and still has flare-ups of symptoms such as headaches and constant, extreme pain in the neck, back, shoulder, and abdomen. He states that he gets knots in his neck where he cannot move his head, which causes migraines, and where he cannot lift his arms to his shoulder level. See Hearing Transcript, March 2021. In a March 2021 private medical opinion, the physician noted the Veteran's diagnosis of fibromyalgia, and opined that it is at least as likely as not that the Veteran's fibromyalgia is due to his service in Saudi Arabia during the Gulf War. See Private treatment record, March 2021. Based on the above, the Board finds that the record supports a finding that the Veteran has fibromyalgia which manifested during and/or after his service in the Persian Gulf War, with no probative evidence in the record suggesting that this condition can be attributed to any known clinical diagnosis. As fibromyalgia is considered a medically unexplained chronic multi-symptom under 38 C.F.R. § 3.317 for which presumptive service connection may be granted, the Board concludes that service connection for the Veteran's fibromyalgia is warranted on a presumptive basis; and the claim is granted. 4. Entitlement to service connection for kidney cancer, as due to an undiagnosed illness or medically unexplained chronic multisystem illnesses as a result of exposure to environmental hazards in the Persian Gulf War. The Veteran contends that his kidney cancer is related to his service during the Persian Gulf War. Again, the Board acknowledges that consideration of presumptive service connection for disabilities resulting from an undiagnosed illness or medically unexplained chronic multi-symptom illness is applicable in this case. 38 C.F.R. § 3.317. However, the Board further notes that the Veteran's kidney cancer (diagnosed throughout the record as renal mass of the right kidney, kidney disease, malignant tumor of the kidney, renal cell carcinoma, and/or status-post right lap radical nephrectomy) is not a qualifying chronic disability under 38 C.F.R. § 3.317. Additionally, the Veteran's kidney cancer is a recognized clinical diagnosis, and it is not a medically unexplained chronic multi-symptom illness. Therefore, service connection pursuant to the provisions of 38 C.F.R. § 3.317 are not warranted. Nevertheless, after review of the record, the Board finds that service connection for the Veteran's kidney cancer pursuant to 38 C.F.R. § 3.303 is warranted. STRs are silent for any complaints, treatment, or diagnosis of kidney cancer. Post-service VA and private treatment records reveal treatments for kidney infections, and diagnoses described as the Veteran's kidney cancer, as shown as renal mass of the right kidney, kidney disease, malignant tumor of the kidney, renal cell carcinoma, and/or status-post right lap radical nephrectomy. In a January 2018 DRO hearing, the Veteran noted that he was diagnosed with kidney cancer in January 2017 which resulted in his right kidney being surgically removed in March 2017. He asserted that the metal cleaning solutions used while he worked as a unit level armorer, chemical weapons, and oil well fires in the Gulf War caused his kidney cancer. See Hearing Transcript, January 2018. During a March 2021 Board hearing, the Veteran noted that he had no kidney issues during service, however, the exposures during the Gulf War caused his kidney cancer. In March 2021, the Veteran submitted a medical literature article regarding the relationship between renal cell carcinoma and occupational exposure to chemicals. In a March 2021 private medical opinion, the physician noted the Veteran's diagnosis of renal cell carcinoma, and opined that it is at least as likely as not that the Veteran's kidney cancer was due to his exposure to high levels of particulate matter, and chemicals from the oil well fire smoke and burn pits. The physician rationalized that the average level of particulate matter that could be breathed in in Saudi Arabia in 1991 was about 3 to 6 times greater than the annual U.S. standard, citing several studies published that exposures to outdoor particulate matter, benzene, soot, and other chemicals are associated with an increased risk of kidney cancer. See Private treatment record, March 2021. Based on the above, the Board finds that the preponderance of the probative evidence of record is in support of a finding that the Veteran's kidney cancer was a result of his service in the Persian Gulf War. Therefore, with no evidence to the contrary, and resolving all reasonable doubt in favor of the Veteran, the Board concludes that service connection for kidney cancer is warranted; and the claim is granted. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. The Veteran contends that he is unemployable due to his service-connected disabilities. TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation resulting from a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining whether unemployability exists due to a service-connected disability or disabilities, consideration may be given to the Veteran's level of education, special training, and previous work experience; however, age and impairment caused by nonservice-connected disabilities are not factors for consideration. Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of TDIU. 38 C.F.R. §§ 3.341, 4.16, 4.19. Also, it is necessary that the record reflect some factor(s) that places the Veteran in a different category than other veterans with equal ratings of disability. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The ultimate question is whether the veteran can perform the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). As an initial matter, the Board notes that in a July 2021 rating decision, the Veteran was assigned a 100 percent combined total schedular rating, effective September 11, 2019. Typically, the award of a total schedular rating renders the need for TDIU moot, as a TDIU is meant to provide a total rating for unemployability when the Veteran's combined schedular rating is less than total. However, the Court of Appeals for Veterans Claims (Court) has identified a situation where a TDIU is warranted even when the Veteran is in receipt of a total schedular rating. In Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability or disabilities separately rated at 60 percent or more could warrant special monthly compensation (SMC) under 38 U.S.C. § 1114 (s). In this case, the Veteran was assigned a 100 percent disability rating for his service-connected posttraumatic stress disorder (PTSD), effective March 14, 2013; as well as, special monthly compensation (SMC) based on his PTSD, effective March 14, 2013. Therefore, the issue of entitlement to TDIU from March 14, 2013 is moot. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 1114 (s); Holland v. Brown, 6 Vet. App. 443, 446 (1994); Bradley v. Peake, 22 Vet. App. 280 (2008). Thus, the Board will only address the matter of entitlement to TDIU for the period prior to March 14, 2013. A review of the record reflects that the Veteran was not service connected for any disabilities prior to March 14, 2013. While service connection has been granted herein for asthma, fibromyalgia, and kidney cancer, these claims arise from the Veteran's April 2017 claim for service connection benefits. Thus, service connection would not be awarded for these disabilities prior to the date of his April2 017 claim. Therefore, as there are no service-connected disabilities which could be found to be the cause of individual unemployability, the Board finds that TDIU prior to March 14, 2013 is not warranted; and the claim is denied. (Continued on the next page) In reaching this determination, the Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its applications. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Carter, 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.