Citation Nr: 21008629 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 16-03 318 DATE: February 17, 2021 ORDER Entitlement to service connection for an undiagnosed chronic respiratory disability, manifested by shortness of breath is granted. FINDING OF FACT A VA examiner characterized the Veteran’s respiratory symptom pattern as an undiagnosed illness. CONCLUSION OF LAW The criteria for entitlement to service connection for an undiagnosed chronic respiratory illness, manifested by shortness of breath, have been met. 38 U.S.C. §§ 1110, 1117, 1118, 1131, 1137; 38 C.F.R. § 3.102, 3.159, 3.303, 3.304, 3.317, 3.326 (a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1993 to May 2000, June 2004 to May 2005, December 2007 to May 2008, May 2008 to November 2008, and December 2008 to January 2010, to include service in Southwest Asia. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in September 2018. A transcript of the hearing has been associated with the file. Entitlement to service connection for an undiagnosed chronic respiratory disability, manifested by shortness of breath Service connection will be granted for disability that results from injury or disease in the line of duty in active military service or, if pre-existing such service, was aggravated by in-service disease or injury. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). In order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117 (a)(1); 38 C.F.R. § 3.317 (a)(1). The term "Persian Gulf Veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317 (e)(1). The "Southwest Asia Theater of operations" refers to Iraq, Kuwait, Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317 (e)(2). The Persian Gulf War means the period beginning on August 2, 1990 and ending on the date thereafter prescribed by Presidential proclamation or by law. 38 U.S.C. § 101 (33); 38 C.F.R. § 3.3 (i). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities(1) an undiagnosed illness; (2) medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary of VA determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection. Service connection may be granted for objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms, to include, but not limited to, fatigue, signs or symptoms involving skin, headaches, muscle pain, joint pain, neurologic signs or symptoms, neuropsychologic 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. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The undiagnosed illness must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. See 38 C.F.R. § 3.317 (a)(1)(i). A chronic disability for purposes of 38 U.S.C. § 1117 is one that has existed for 6 months or more, including disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. See Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more, the condition must be rated by analogy to a disease or an injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317 (a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Lay assertions, however, may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Section 3.317 explicitly acknowledges that a claimant's "signs or symptoms" need not be shown by medical evidence; however, the regulation does specifically require some "objective indications" of disability. See 38 C.F.R. § 3.317 (a). "'Objective indications of 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." 38 C.F.R. § 3.317 (a)(2); see Nuemann v. West, 14 Vet. App. 12, 22 (2000), vacated on other grounds, 14 Vet. App. 304 (2001) (per curiam order). Thus, although medical evidence of signs or symptoms is clearly not required to grant a claim, the regulation does require that there be some objective, independently verifiable evidence of the symptoms. Id. The Veteran contends that he has an undiagnosed respiratory illness related to his service during the Persian Gulf War Era. He asserts he developed a respiratory disability as a result of his exposure to trash being burned during his military service in Southwest Asia. The Veteran's Military Personnel Records reflects that he served in the Southwest Asia Theater of Operations during the requisite time period. The Veteran’s service treatment records (STRs) do not document any respiratory abnormalities. At an August 2009 post-deployment health assessment following a deployment to Iraq, the Veteran denied respiratory symptoms including chronic cough and difficulty breathing. Nevertheless, due to the Veteran’s verified service in Southwest Asia, entitlement to service connection for an undiagnosed illness should be considered. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The Veteran has reported that both during service, and since that time he has had episodes of shortness of breath, for which he has been provided inhalers and other treatment. The Veteran was afforded VA examinations, including a Gulf War General examination and for Respiratory Conditions in May 2017. The Veteran reported that he becomes short of breath and went to urgent care twice in 2016 and was given steroid inhaler and albuterol. He stated he has shortness of breath 2 to 3 times a month when his chest feels tight and be begins to cough, with symptoms lasting about one minute. The examiner noted the Veteran’s respiratory conditions requires the use of intermittent inhalation bronchodilator therapy. However, the examiner was unable to determine if there was a disability pattern related to his intermittent breathing issues as more information was needed, including the Veteran’s medical records and imaging tests. The Veteran submitted private medical treatment records which reflect he went to urgent care for nausea and shortness of breath in April 2015. He was provided with albuterol through a nebulizer and prescribed Ventolin inhaler. He was treated again in November 2019 for dyspnea and was provided albuterol. The Veteran was provided a spirometry test for his shortness of breath, which showed his FEV1 and FVC were normal, the FEV1/FVC were preserved and there was no significant increase in FEV1 following bronchodilator challenge. The provider however, stated that this does not preclude the use of bronchodilators if clinically indicated. Although his dyspnea was addressed, there was no diagnosis provided. The Veteran was afforded another VA examination in January 2020 at which time the Veteran reported that he has symptoms of intermittent shortness of breath. He wakes up with shortness of breath and cough. He had a severe exacerbation in 2016, needing multiple breathing treatments in Urgent Care, and has been using an inhaler for at least 10 years. He did not have known diagnosis of asthma or COPD. The Veteran stated his symptoms were getting worse in frequency. In addressing the question of whether the disability pattern was an undiagnosed illness; or a diagnosable, but medically unexplained chronic multi-symptom illness of unknown etiology; a diagnosable chronic multi symptom illness with a partially explained etiology; or a disease with a clear and specific etiology and diagnosis the examiner indicated the veteran’s disability pattern was an undiagnosed illness. In addressing a direct service connection question put to him, the examiner stated the condition was unlikely related to service, because there was no diagnosed disability. The Veteran submitted a statement from his spouse in April 2017. She notes the Veteran has had increased medical issues since returning from deployments. She noted he had respiratory issues which required urgent care in 2016 and was prescribed inhalers. The Board finds the Veteran has current shortness of breath, which is a sign or symptom involving the respiratory system that is specifically listed as a sign or symptom of undiagnosed illness. 38 C.F.R. § 3.317 (b)(8). In addition, the Veteran has consistently indicated that such respiratory symptoms have persisted since service, and therefore, have persisted more than six months. See Gutierrez, 19 Vet. App. at 8-9 (lay persons are competent to report objective signs of illness). (Continued on the next page)   Moreover, the evidence of record shows that the Veteran’s respiratory symptoms have not been attributed to a known clinical diagnosis, and his symptoms were characterized as an undiagnosed illness by the January 2020 VA examiner. In addition, intermittent inhalational or oral bronchodilatory therapy has been demonstrated; which are objective indications that the Veteran’s shortness of breath has manifested to a degree of 10 percent or more disabling under diagnostic code 6602, Asthma, bronchial. See 38 C.F.R. § 4.97. Specifically, the Veteran has exhibited symptomatology of a compensable nature involving shortness of breath that warrants a finding of an undiagnosed illness. For these reasons, the Board finds that the Veteran’s respiratory condition manifested as shortness of breath qualifies as an undiagnosed illness. As the Veteran is a “Persian Gulf War Veteran” and respiratory signs and symptoms are considered a qualifying chronic disability under 38 C.F.R. § 3.317, his symptoms are presumed to have been a result of his military service in Southwest Asia. The criteria for service connection are met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jaigirdar, Associate 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.