Citation Nr: 21007119 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 09-36 404 DATE: February 8, 2021 ORDER Entitlement to service connection for a disability manifesting in shortness of breath is denied. FINDING OF FACT The Veteran’s shortness of breath is due to coronary artery disease that has an understood etiology and pathophysiology and is not related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a disability manifesting in shortness of breath have not been met. 38 U.S.C. §§ 1110, 1117, 1118, 1131, 1155, 5107(b) (2012); 38 C.F.R. §§ 3.2, 3.102, 3.303, 3.304, 3.317 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1989 to September 1992, with service in Kuwait during the Persian Gulf War. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision by the Department of Veterans Affairs (VA). This issue was denied by the Board in a January 2018 Board decision. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court), which vacated the decision pursuant to a February 2019 Joint Motion for Partial Remand. The Board thereafter remanded the issue in July 2019, January 2020, and October 2020. In June 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. Entitlement to service connection for a disability manifesting in shortness of breath. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established for a Persian Gulf Veteran who exhibits objective indications of “qualifying chronic disability” that has become manifest in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021, and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. A “qualifying chronic disability” means a chronic disability resulting from the following: (i) an undiagnosed illness, or (ii) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms (such as, but not limited to, chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders) (MUCMI). 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317. A MUCMI 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, such as diabetes and multiple sclerosis, are not considered medically unexplained. 38 C.F.R. § 3.317(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran reported that, during service in 1992, he started having episodes of shortness of breath without wheezing and without a cough. He reported that he was examined by VA physicians and they were not sure as to the cause of the shortness of breath. See November 1997 VA examination. Indeed, a November 1992 chest x-ray reflects that the Veteran’s lungs were clear. See November 1992 VA treatment records. The Veteran’s pulmonary function test (PFT) in November 1997 was within normal limits, and the VA examiner diagnosed transitory reactive airway disease. See November 1997 VA examination. In 2011, the Veteran reported minimal lung changes, see April 2011 statement, and occasional shortness of breath with exertion. See May 2011 Social Security Administration (SSA) records. Additionally, a February 2011 radiology report reflects a finding of some pleural thickening along the lateral chest wall on the right. See February 2011 VA treatment records. In November 2020, a VA examiner opined that the Veteran’s current shortness of breath is more likely than not cardiac in origin. The examiner diagnosed coronary artery disease and discussed that abnormalities noted in recent studies led to shortness of breath. An electrocardiogram (ECG) in 2010 showed normal sinus rhythm with nonspecific T wave abnormalities; thus, the Veteran’s cardiac changes occurred after 2010, which is over 20 years post separation. The examiner noted that cardiac problems such as coronary artery disease are understood and are due to hyperlipidemia that clog the coronary arteries and cause the heart to fail. This developed over the years and was first seen over 20 years after the Veteran’s separation from service. Thus, it was more likely than not that the shortness of breath is cardiac in origin, as seen in abnormal left heart cath and nuclear medicine (NM) perfusion studies in 2019. See November 2020 VA examination and medical opinion. The November 2020 VA examiner noted that the Veteran may have complained of shortness of breath in 1992 but all respiratory function was normal and the earliest ECG changes that occurred are in 1997 and seen in 2010. Thus, there were no heart changes seen until after 1997, which was five years after separation. The examiner also noted that the Veteran did not report pulmonary or cardiovascular problems during VA examinations in 1992. Id. Finally, the November 2020 VA examiner noted that the Veteran had COVID-19 in 2020 and diagnosed chronic interstitial changes, status post COVID-19. The examiner noted that prior VA examinations reflected no respiratory disorder and that COVID-19 changes of the lung were recent and many years post-service. Id. The Board finds the November 2020 VA medical opinion to be adequate for appellate review. The examiner relied on examination of the Veteran and a review of the file, and he provided a full and detailed rationale that included discussion of the Veteran’s diagnosed disabilities of record and lay statements of reported history. The preponderance of the evidence reflects that the Veteran’s current shortness of breath during the appeal period is due to coronary artery disease. The Board assigns significant probative weight to the opinion by the November 2020 VA examiner. The examiner considered the Veteran’s lay statement about shortness of breath in service and found that it was insufficient to connect his heart disability to service because of the testing that was obtained post-service and the Veteran’s first report of his problems in 1997. Thus, the examiner’s opinion significantly outweighs the Veteran’s lay report of symptoms in service and the preponderance of the evidence reflects that the Veteran’s coronary artery disease is not related to service. The Board also notes that the Veteran’s current shortness of breath can be attributed to COVID-19. The Board assigns significant probative weight to the November 2020 VA examiner’s opinion that notes that COVID-19 and its subsequent lung changes were significantly after the Veteran’s separation from service. The Board takes judicial notice that it is understood that COVID-19 results from a virus that first surfaced in 2019, nearly thirty years after the Veteran separated from service. The Board also assigns significant probative weight to prior opinions and treatment records that reflect no diagnosis of a respiratory or lung disability prior to COVID-19. See, e.g., November 2019 VA examination (the Board notes that while the VA examiners’ opinions regarding an undiagnosed illness may have been inadequate, the lack of a respiratory diagnosis was not inadequate and has not been deemed as such by the Board at any time). Such evidence outweighs the February 2011 radiology report reflecting thickening of the walls. Additionally, the 1997 diagnosis of transitory reactive airway disease is given no probative weight because it was diagnosed prior to the appeal period and, as a result, it is not reflective of a current disability. Thus, the preponderance of the evidence also reflects that the Veteran’s COVID-19 is unrelated to service. The Veteran’s shortness of breath during the appeal period has been attributed to a diagnosed disability. Thus, the preponderance of the evidence reflects that it is not a symptom of an undiagnosed illness. While the November 2020 VA examiner did not specifically use the words “etiology” or “pathophysiology” in his opinion, the examiner clearly noted that the Veteran’s coronary artery disease was “understood” and explained the cause and pathophysiology of the disability. Specifically, the examiner explained that coronary artery disease is due to hyperlipidemia that clogs the coronary arteries and causes the heart to fail. Thus, the Veteran’s coronary artery disease is not a MUCMI. Because the preponderance of the evidence reflects that the Veteran’s shortness of breath is due to coronary artery disease and COVID-19 lung changes that are not related to service, service connection for a disability manifesting in shortness of breath is not warranted, and the claim must be denied. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, 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.