Citation Nr: 21007774 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 15-14 888A DATE: February 10, 2021 ORDER Entitlement to service connection for a respiratory disability is granted. FINDINGS OF FACT 1. The Veteran served on active duty in the Southwest Asia theater of operations. 2. The Veteran’s respiratory disability is a medically unexplained chronic multisymptom illness (MUCMI) that manifested after his active duty service. CONCLUSION OF LAW The criteria to establish service connection for a respiratory disability have been met. 38 U.S.C. §§ 1110, 1131, 1117, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1997 to February 2001. He had active service in Saudi Arabia. See Military Personnel Records. The Veteran died in October 2018. See November 2018 VA Form 27-0820a. The appellant is his surviving spouse who was properly substituted as the claimant in October 2019. See October 2019 notification letter. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a respiratory disability. In February 2020 and September 2020, the Board remanded the Veteran’s claim to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board’s remand directives. Specifically, the Board remanded for the AOJ to issue a supplemental statement of the case (SSOC) and provide the appellant with an opportunity to respond. The Board finds there has not been substantial compliance with the remand instructions. Nevertheless, the Board finds the evidence of record allows for a grant of service connection for a respiratory disability. This is a full grant of benefits sought and deciding the issue will not prejudice the appellant. Prior to his death, the Veteran contended that his respiratory disability was a MUCMI. See May 2012 VA Form 21-4138. Service connection may be warranted for a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability (QCD) 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, 2021. 38 C.F.R. § 3.317(a). For purposes of 38 C.F.R. § 3.317, there are three types of QCDs: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness (MUCMI); 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. A MUCMI is defined as 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. 38 C.F.R. § 3.317(a)(2)(ii). In Stewart v. Wilkie, the Court of Appeals for Veterans Claims (Court) held an illness is medically unexplained where either the etiology or pathophysiology of the illness is inconclusive as to the individual Veteran, 30 Vet. App. 383, 390-92 (2018). Chronic disabilities are those that have existed for 6 months or more and exhibit intermittent episodes of improvement and worsening over a 6-month period. 38 C.F.R. § 3.317(a)(4). Signs or symptoms that may be a manifestation of a MUCMI include signs or symptoms involving the respiratory system. 38 C.F.R. § 3.317(b). It is ultimately the authority of the VA adjudicator to “‘determine on a case-by-case basis whether additional diseases meet the criteria’ for a MUCMI.” See Stewart, 30 Vet. App. at 391 (quoting Goodman v. Shulkin, 870 F.3d 1383 (Fed. Cir. 2017)). First, the Board finds that the Veteran’s respiratory disability is a MUCMI as defined in § 3.317(a)(2)(ii) and, thus, is a QCD for the purposes of § 3.317(a). The Veteran was diagnosed in 2009 with asthma and emphysema manifested by dyspnea and cough. See September 2014 VA examination report. At minimum, the Veteran’s disability causes fatigue and decreased pulmonary function with intermittent episodes of improvement and worsening. See id. and August 2014 VA treatment records. Thus, the Veteran has a chronic respiratory disability that is characterized by overlapping symptoms and signs and has features such as fatigue and decreased pulmonary function. However, to qualify as a MUCMI, the Veteran’s disability must have an inconclusive etiology or pathophysiology. Here, the etiology of the Veteran’s respiratory disability is inconclusive. From 2010 through 2017, the Veteran’s respiratory disability was treated by Dr. C.S., a pulmonary specialist. Id. Dr. C.S. noted that the Veteran’s risk exposures included smoking tobacco and his deployment to Saudi Arabia. He opined that the cause of the Veteran’s respiratory problems was “elusive” but not the result of the Veteran’s smoking. Id. Dr. C.S.’s opinion was the result of “extensive workup,” treatment trials, a review of the Veteran’s medical and service history, laboratory tests, and diagnostic images. The Board find his opinion highly probative. Dr. C.S.’s characterization of the etiology of the Veteran’s respiratory illness as “elusive” is essentially the same as saying that such is inconclusive. Dr. C.S.’s records also refer to the cause of the Veteran’s respiratory symptoms as “unclear”. Thus, the Veteran’s respiratory disability is a MUCMI and QCD for the purposes of § 3.317(a). Finally, the Board finds that the Veteran’s QCD manifested to a degree of 10 percent or more. The Veteran’s pulmonary function tests revealed an FEV-1 value of 64 percent predicted. See February 2016 VA examination report. This value represents a disability manifested by a rating greater than 10 percent. See 38 C.F.R. § 4.97, Diagnostic Cod 6602. Accordingly, the Board finds that the Veteran was a Persian Gulf War veteran who exhibited a QCD that manifested to a degree of 10 percent or more following active service. The Veteran has met the criteria necessary to enjoy the presumption of service connection. Therefore, the criteria for service connection for a respiratory disability has been met, and the claim is granted. See 38 C.F.R. §§ 3.102, 3.317; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Strickland 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.