Citation Nr: 21009566 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 15-23 781 DATE: February 22, 2021 ORDER Service connection for a chronic respiratory disorder is denied. FINDING OF FACT The evidence of record weighs against a finding of a chronic respiratory disability, to include an undiagnosed illness or medically unexplained chronic multisymptom illness, attributable to service. CONCLUSION OF LAW A chronic respiratory disorder was not incurred or aggravated in service, to include as a result of an undiagnosed illness. 38 U.S.C. §§ 1110, 1137, 5107; 38 C.F.R. §§ 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from April 1987 to June 1991, to include service in Southwest Asia from October 1990 to April 1991. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in October 2018. The Board remanded the claim in November 2019 and August 2020 for further development by the RO. The case has been returned to the Board for further appellate action. Service connection for a chronic respiratory disorder The Veteran maintains that during his service in Southwest Asia he was exposed to burning oil wells, burning debris, sandstorms, detonating ammunitions and anthrax. He contends that he now suffers from a chronic respiratory disorder. In general, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1137; 38 C.F.R. § 3.303 (a). To establish entitlement to direct service connection for the claimed disability, there must be: (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus or link between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). During military service, the Veteran received treatment for sinusitis in October 1989. There are no other reported respiratory problems noted during service. Post-service private and VA medical records that date from February 2005 show treatment for variously diagnosed nasal/respiratory conditions to include sinusitis and bronchitis since 2003 (See September 2003 private records from Perkins Clinic). A Gulf War general examination was conducted in November 2013. The examiner noted his prior medical history. The Veteran reported having trouble with sinus infections since the 1990s. He also stated that he did not have any allergies and that he has had one sinus infection a month for the past eight to ten years. The Veteran was diagnosed with recurrent sinusitis. The examiner specifically noted that the Veteran did not have chronic sinusitis. The examiner noted that a June 2013 primary care note indicated that the Veteran had trouble with allergies as a child and that he received allergy injections at that time. She reasoned that this information indicated that the Veteran had a tendency toward lung and sinus infections, and that his condition manifested prior to military service. The examiner further opined that the Veteran’s sinus conditions were not due to time spent in the Persian Gulf. The examiner reasoned that the Veteran’s October 1989 service treatment records indicated that he was seen and treated for a sinus infection. Moreover, the examiner indicated that although the Veteran had several sinus infections over the years, the frequency of the infections did not go up right after his time in the Persian Gulf. Thus, she concluded that if the Veteran was exposed to something toxic, it would have caused symptoms sooner than 2003. The examiner opined that the Veteran’s sinusitis was less likely than not incurred in or caused by the claimed in-service injury, event, or illness and that the condition was at least as likely as not aggravated or a result of the Veteran’s long-standing trouble with allergies and sinus congestion. In November 2019, the Board found that this VA examination and medical opinion were inadequate. The Board noted that the examiner failed to provide an adequate rationale for her conclusions and failed to consider the Veteran’s credible assertions regarding the nature of his service or continuity of symptoms since service. The Board remanded the case, in order to obtain an opinion regarding whether it is at least as likely as not that the disability had its onset in service or is otherwise etiologically related to service, to include exposure to environmental hazards and neurotoxins in Southwest Asia. The examiner was also instructed to consider and address the Veteran’s lay statements regarding the nature, onset, and continuity of symptoms. An opinion was obtained in December 2019. However, in August 2020, the Board found that the VA examiner did not comply with these instructions outlined in the prior remand. The examiner did not fully explain the rationale for an unfavorable conclusion and did not discuss the Veteran’s lay statements at all. Another opinion was obtained in September 2020. The examiner concluded that it is not as likely as not that the disability had its onset in service or is otherwise etiologically related to service, to include exposure to environmental hazards and neurotoxins in Southwest Asia. The examiner thoroughly and extensively explained the reasons for finding that the Veteran did not have a current respiratory disability attributable to service, citing to the Veteran’s contentions and the medical record. The examiner also provided reasons for not finding an undiagnosed illness or medically unexplained chronic multisymptom illness The Board finds the September 2020 opinion to be highly probative based on the facts and rationale used. Although the Board has carefully and sympathetically considered the Veteran’s lay statements, he has not been shown to possess the medical training to provide opinion regarding the complex medical questions of diagnosis and etiology raised in this case. Although the Veteran has submitted concerns regarding prior VA examinations, he has not contended the most recent examination was inadequate. The Board finds the September 2020 VA medical opinion to be the most probative evidence regarding nexus of file and based on it finds that the evidence weighs against a connection between a current disability and service or that the provisions of 38 C.F.R. § 3.317 are met.   Accordingly, based on this evidentiary record, the Board concludes that the preponderance of the evidence is against the Veteran’s claim for service connection for a chronic respiratory disorder. Nathaniel Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.D. Jackson, 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.