Citation Nr: 21007829 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 12-03 855 DATE: February 10, 2021 ORDER Service connection for an upper and lower respiratory disorder is granted. FINDING OF FACT The Veteran’s upper and lower respiratory disorder is related to her service-connected fibromyalgia and chronic fatigue syndrome (CFS). CONCLUSION OF LAW The criteria for service connection for upper and lower respiratory disorder are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1988 to March 1994. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held before a Decision Review Officer (DRO) of the agency of original jurisdiction (AOJ) in September 2009. A transcript of the hearing is of record. In September 2016 and January 2020, the Board remanded the issue of entitlement to service connection for an upper and lower respiratory disorder (claimed in addition to shortness of breath), to include as a qualifying chronic disability under 38C.F.R. §3.317, for additional development. The Board finds that there has been substantial compliance with the prior September 2016 and January 2020 remand instructions. See D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). This permits service connection not only for a disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the case of aggravation by a service-connected disability, a Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id.; see also 38 C.F.R. § 3.310(b). The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War, on or after August 2, 1990. 38 U.S.C. § 1110. Service connection may also be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability 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 prior to December 31, 2021. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. For purposes of section 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; 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. 38 C.F.R. § 3.317(a)(2). The Veteran contends that she has an upper and lower respiratory condition that developed as a result of environmental exposures during her Southwest Asia service from December 1990 to May 1991. She also contends that she has experienced respiratory symptoms since her discharge from service. Separately, the AOJ has granted service connection for shortness of breath as a symptom of the Veteran’s PTSD based on the opinion provided by the June 2013/April 2017 VA examiner. The examiner also determined that the Veteran did not have any respiratory/pulmonary disease. In so finding, she noted the Veteran’s history of in-service and post-service upper respiratory infections (URIs, including bronchitis) most recently as 2002 (prior to the appeal period), explaining that such infections are diagnosed illnesses/infections that are common in the general population, usually viral, and do not cause any ongoing disease or condition. The examiner also noted that the Veteran had a significant bronchodilator effect on her current pulmonary function test (PFT), with otherwise normal results, and that a significant bronchodilator effect can be seen in asthma, but the Veteran did not have a clinical history of or documentation of coughing fits, wheezing episodes, or use of an inhaler. In its January 2020 remand, the Board noted that in a November 2018 PFT report the Veteran submitted in January 2019, the impression was an essentially normal PFT; however, it also noted that certain findings were consistent with neuromuscular weakness. It was additionally noted that, in comparison to the PFTs for the April 2017 VA examination, there had been further reductions in some measurements and increases in others. Based on the foregoing, as well as the fact that the Veteran was now service connected for fibromyalgia and CFS, the Board found that an additional medical opinion was warranted. An addendum opinion was obtained in December 2020 to clarify whether any findings in the April 2017 and November 2018 PFT reports were a manifestation of the Veteran’s fibromyalgia and/or CFS. The same VA examiner opined that the Veteran’s respiratory symptoms are manifestations of her service-connected fibromyalgia and CFS. She stated that fibromyalgia and CFS would contribute to PTSD symptoms and, in particular, both would affect respiratory capability (including objective testing) and respiratory capability. The examiner indicated that the pattern of PFT results from June 2013, April 2017, and November 2018 are additional manifestations of the Veteran’s service-connected CFS and fibromyalgia. She noted that percentages of degree causation could not be assigned due to overlapping symptoms and processes of the Veteran’s service-connected CFS and fibromyalgia. The examiner referenced the Veteran’s medical history and noted that the lack of bronchodilator response alone, as well as one time of a bronchodilator response, in June 2013 and April 2017 neither firmly confirms nor rules out a diagnosis of asthma. The examiner noted that although the albuterol inhaler prescription was renewed in July 2020, none of the VA treatment notes (including telephone calls) show that the Veteran had new respiratory symptoms and/or a diagnosis of asthma. The examiner explained that medical literature documents that “Chronic fatigue syndrome patients have many systemic complaints including shortness of breath” (Global Journal of Health Science, March 2013). This article also concluded that “measures of dyspnea were correlated with exertional exhaustion (CFS criteria), poor physical functioning, and the severity of rapid heart rate, muscle spasms, and dizziness. She also noted that significant dyspnea was found in fibromyalgia patients and that dyspnea and these comorbid symptoms were associated with what patients reported as the “intensity” and “tolerability” of their most extreme respiratory effort. The examiner further stated that this medical article also points to both CFS and fibromyalgia sharing a complex pathophysiologic pathway and that measures of dyspnea (which include emotional symptoms) correlated with exertional exhaustion. The VA examiner also referenced other studies (including in Journal of Aging Research, February 2016) point to a possible “muscular biochemical abnormality” playing a major role in CFS-associated fatigue. She stated that “no single abnormality is diagnostic of respiratory muscle weakness; rather diagnosis is based on a constellation of abnormalities” on PFTs (UpToDate, August 2019). She concluded that the various measurements noted to be decreasing on the Veteran’s serial PFTs would be some of the results affected by respiratory muscle weakness, and both CFS and fibromyalgia would be affected both objectively and subjectively by the repeated exertions needed to complete full PFTs. In addressing why the Veteran’s upper and lower respiratory signs and symptoms may be found to be related to service, the Board considers the December 2020 medical opinion by the VA examiner to carry great probative weight. The examiner opined that the Veteran’s current respiratory symptoms are more likely than not related to her symptoms of CFS and fibromyalgia, for which service connection has been granted in a May 2017 rating decision. The Board finds this opinion to be highly probative, as it is supported by the medical and lay evidence of record, which includes post-service treatment records documenting treatment for respiratory symptoms and lay statements documenting symptoms since the Veteran’s discharge from service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). There is no competent medical opinion to the contrary. As such, service connection for an upper and lower respiratory disorder is granted. 38 U.S.C. §§ 1110, 5107; see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Bilstein, 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.