Citation Nr: 21008331 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 13-25 069A DATE: February 16, 2021 ORDER Service connection for emphysema is denied. REMANDED Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for sudden death syndrome, to include on a secondary basis, is remanded. Entitlement to service connection for obstructive sleep apnea, to include on a secondary basis, is remanded. Entitlement to service connection for a psychiatric disability (including anxiety disorder and posttraumatic stress disorder (PTSD)), to include on a secondary basis, is remanded. Entitlement to service connection for memory loss, to include on a secondary basis, is remanded. Entitlement to service connection for a right shoulder and cervical spine disability is remanded. Entitlement to service connection for a skin disability is remanded. Entitlement to service connection for vertigo, to include on a secondary basis, is remanded. FINDING OF FACT Emphysema was not manifest during active service nor is it etiologically related to service, including as a result of service in Southwest Asia. CONCLUSION OF LAW The criteria for service connection for emphysema, including as due to an undiagnosed illness, have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1983 to December 1993 with service in Southwest Asia. In May 2017 a videoconference hearing was held before the undersigned. These matters were before then remanded by Board in August 2017 for additional development. The additional issue of entitlement to service connection for a lower back disability was also remanded in May 2017. A January 2020 rating decision granted service connection for this disability. As this claim has been granted in full, it is no longer before the Board for appellate consideration. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Emphysema Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, the evidence must show: (1) the existence of a present disability; (2) 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, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be awarded on a presumptive basis to a Persian Gulf veteran who (1) exhibits objective indications; (2) of a chronic disability such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either 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 December 31, 2021; and (4) such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. Gutierrez v. Principi, 19 Vet. App. 1, 7 (2004); 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Objective indications of a chronic disability include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. Id. Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headaches, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological 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, or menstrual disorders. 38 C.F.R. § 3.317(b). If signs or symptoms have been attributed to a known clinical diagnosis, service connection may not be provided under the specific provisions pertaining to Persian Gulf veterans. See VAOPGCPREC 8-98 (Aug. 3, 1998). “The very essence of an undiagnosed illness is that there is no diagnosis.” Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006); see also Gutierrez v. Principi, 19 Vet. App. 1, 10 (2004) (a Persian Gulf War veteran’s symptoms “cannot be related to any known clinical diagnosis for compensation to be awarded under section 1117”). Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the “positive” evidence in favor of the claim is in relative balance with the weight of the “negative” evidence against the claim; the appellant prevails in either event. However, if the weight of the evidence is against the appellant’s claim, the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that he has emphysema as a result of his service in Southwest Asia. Service personnel records show he served in Southwest Asia from December 1990 to May 1991. Service treatment records (STRs) also show that the Veteran was treated for an upper respiratory infection in service in March 1989. However, the STRs are silent for diagnosis or treatment for emphysema. Following service, private outpatient treatment records dated from 2008 to 2010 note the Veteran’s complaints of shortness of breath on exertion and wheezing on inhale. It was noted that the Veteran had a history of myocardial infarction and heart disease. A March 2009 hospitalization record notes the Veteran’s history of smoking until 2003. VA treatment records show that in September 2010, the Veteran was encouraged to quit smoking and was informed about a CT scan showing apical fibrocystic disease and emphysema. It was also noted that the Veteran wished to taper cigarettes. In November 2010, a CT scan revealed emphysema in both lung apices. In October 2017, the Veteran reported smoking 10 cigarettes a day. And in February 2019, it was noted that the Veteran was still smoking a few cigarettes daily. In a January 2011 VA Miscellaneous Respiratory Disease Examination Report, it was noted that the Veteran was being examined for emphysema. He reported that the disease was discovered after was having problems with chest pains and chest x-rays and pulmonary function tests were conducted. He also reported smoking 1.5 packs of cigarettes per day for 20 years until he suffered a heart attack about 5 years earlier. On examination, breath sounds were normal. The examiner reviewed the Veteran’s service records and noted that there was no evidence of emphysema. The examiner then opined that emphysema was a disease with a clear and specific etiology and diagnosis. Therefore, it was not caused by or due to a specific exposure event experienced by the Veteran during service in Southwest Asia. The examiner further opined that emphysema “[was] caused by defined by abnormal and permanent enlargement of the airspaces that [were] distal to the terminal bronchioles. Most commonly it [was] due to cigarette consumption which [the Veteran had] a history of. It [was] not known to be related exposure events in Southwest Asia.” A May 2013 VA CT scan showed partially visualized emphysematous changes in the right lung apex. In May 2017, the Veteran testified that he thought his emphysema was probably due to his Persian Gulf War service. See May 2017 hearing transcript. An October 2019 VA Respiratory Conditions Disability Benefits Questionnaire (DBQ) notes the Veteran’s diagnosis of emphysema, which was confirmed by CT scan in 2019. After reviewing the claims file, the examiner opined that the Veteran’s emphysema was less likely than not incurred in or related to service. The examiner explained that emphysema “[was] mostly caused by pollutants such as cigarette smoke . . . . .” The examiner further acknowledged that while the Veteran was diagnosed with an upper respiratory infection in service, the “[m]edical literature validate[d] that Upper Respiratory Infections [did] not cause Emphysema.” Moreover, the examiner noted that the Veteran did not have emphysema when he entered service, “therefore it could not have been aggravated by service.” Based upon the evidence of record, the Board finds that emphysema was not manifest during active service, and that the evidence does not support a finding that that this disability is etiologically related to service, including as a result of the Veteran’s service in Southwest Asia or as a result of the upper respiratory infection, for which he received treatment in March 1989. As to undiagnosed illness, there is no medical evidence of signs or symptoms involving the respiratory system other than emphysema. The Veteran’s complaints have been linked to a diagnosis, as noted by the January 2011 VA examiner. There is no evidence to the contrary. As to direct service connection, the Board finds that the most probative evidence of record supports a finding that emphysema is not related to service. See 38 C.F.R. § 3.303. The Veteran’s STRs are silent for any complaints, findings, treatment, or diagnosis of emphysema, which supports an inference that emphysema was not present at that time. This finding is also supported by the January 2011 VA examiner who reviewed the Veteran’s service records and found that there was no evidence of emphysema. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection). As noted above, no complaints or findings related to emphysema were noted until 2008, about 15 years after service, that any such complaints were noted. Moreover, the 2011 and 2019 VA medical opinions are persuasive and based upon adequate rationale. The examiners specifically found that there was no evidence the Veteran’s emphysema had its onset in service or was proximately due to service, to include service in Southwest Asia. The 2019 VA examiner further opined that the Veteran’s emphysema was not as a result of his in-service treatment for an upper respiratory infection either. Instead, both examiners found that the more common cause of emphysema was cigarette smoking. The examiners reviewed the evidence of record and adequately considered the credible lay statements and reported symptom manifestation history of record. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Notably, there is no medical evidence to the contrary and, in fact, the Veteran’s own treating provider encouraged him to quit smoking in 2010 after it was noted that his diagnostic tests had shown evidence of emphysema. The Board recognizes and appreciates the lay evidence offered by the Veteran regarding the observable symptoms he has displayed over the years. He is competent to provide evidence of his objective symptoms. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, a medically competent diagnosis for the claimed disability and initial onset dates for this diagnosis are conclusions that must be rendered by a medical professional that has the requisite training and expertise to deliver a competent deduction. See Jandreau v. Nicholson, 492 F.3d 1372, 1733 n.4 (Fed. Cir. 2007). Even if the Veteran were competent to make such nexus opinions, they are outweighed by the VA medical examiners’ opinions, which were based not only upon review of the claims file and medical expertise, but also on examination of the Veteran. As the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. As such, the claim is denied. REASONS FOR REMAND Heart Disability The Veteran’s claim of service connection for a heart disability was remanded for an addendum medical opinion as to whether it was at least as likely as not that the Veteran’s diagnosed heart conditions were incurred in, or caused or aggravated by his military service. The examiner was directed to specifically consider a July 2017 opinion from the Veteran’s treating cardiologist that discussed a potential relationship between stress and coronary artery disease. A VA medical opinion was obtained in November 2019; however, the examiner failed to address the July 2017 opinion or the contentions of a relationship between stress and heart disease. The Board regrets any further delay; however, an additional opinion should be obtained on remand. Skin Disability The Veteran’s claim of service connection for a skin disability was remanded for an addendum medical opinion as to whether it is at least as likely as not that the Veteran’s diagnosed skin conditions were related to his service, to include documentation of a rash, nevus, boil and sore therein. In a November 2019 VA medical opinion, the examiner found that dermatophytosis was less likely related to service, to include the other skin problems noted therein, because dermatophytosis was not diagnosed until many years after service. However, this opinion is inadequate in that the examiner failed to address the diagnoses of neoplasms (November 2010) and nevus (January 2011) noted in the record. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (noting that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). Therefore, remand for an additional medical opinion is necessary in this case. Right Shoulder and Cervical Spine Disability Relevant to the shoulder and cervical spine claim, the Veteran testified that his duties as a member of a tank crew required him to lift or catch heavy objects, and that he was not able to seek treatment because his unit was in the field. See May 2017 hearing transcript. This matter was remanded to obtain an addendum medical opinion as to whether it was at least as likely as not (50 percent or greater probability) that the Veteran’s condition was incurred in, or caused or aggravated by his military service. In particular, the examiner was to consider a November 1985 service treatment record documenting joint pain, swelling, and discomfort on motion, as well as the Veteran’s testimony discussing that his duties sometimes required him to lift or catch heavy items. The Veteran underwent VA neck and shoulder examinations in November 2019. The examiner opined that the current neck and right shoulder disability were not related to service because no complaints or findings were noted in the service treatment records. However, the examiner did not address the November 1985 service treatment record or the Veteran’s testimony discussing his inservice duties. On remand, an addendum opinion should be obtained. Psychiatric Disability, Sudden Death Syndrome, Obstructive Sleep Apnea, Memory Loss, Vertigo The Veteran’s psychiatric disability, sudden death syndrome, sleep apnea, memory loss and vertigo claims include secondary service connection arguments. See May 2017 hearing transcript. Therefore, these claims will be remanded as intertwined with the claim for service connection for a heart disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Arrange for an addendum opinion from a qualified VA medical professional regarding the Veteran’s claim of service connection for a heart disability. If the examiner determines that he or she is unable to provide an adequate opinion without an examination, the Veteran should be scheduled for an appropriate examination. A complete rationale should be provided for each opinion given. The examiner should state whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed heart disabilities were incurred in, or caused or aggravated by the Veteran’s service. In providing this opinion, the examiner should specifically consider and discuss the July 2017 letter from the Veteran’s treating cardiologist regarding stress and heart disease. 2. Arrange for an addendum opinion from a qualified VA medical professional regarding the Veteran’s claim of service connection for a skin disability. If the examiner determines that he or she is unable to provide an adequate opinion without an examination, the Veteran should be scheduled for an appropriate examination. A complete rationale should be provided for each opinion given. The examiner should state where it is at least as likely as not (a 50 percent probability or greater) that each skin disability manifested during the pendency of this appeal – including neoplasms and nevus - was incurred in, or caused or aggravated by service. The entire claims file must be made available to and be reviewed by the examiner. In particular, the examiner’s attention is called to service treatment records from December 1984, April 1987, May 1989, and November 1989 documenting a rash, the excision of a nevus from the Veteran, a boil, and a sore, respectively. 3. Arrange for an addendum opinion from a qualified VA medical professional regarding the Veteran’s claim of service connection for a neck and right shoulder disability. If the examiner determines that he or she is unable to provide an adequate opinion without an examination, the Veteran should be scheduled for an appropriate examination. A complete rationale should be provided for each opinion given. The examiner should state whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s condition was incurred in, or caused or aggravated by his military service. The examiner is to specifically address a November 1985 service treatment record documenting joint pain, swelling, and discomfort with motion, as well as the Veteran’s May 2017 testimony discussing that his duties sometimes required him to lift or catch heavy items. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Fletcher, Kathleen 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.