Citation Nr: 21013587 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 12-06 554 DATE: March 9, 2021 ORDER Service connection for a fever disorder, to include all symptoms of erysipelas is denied. Service connection for a lung disorder, to include as secondary to a fever disorder is denied. FINDINGS OF FACT 1. A fever disorder, to include all symptoms of erysipelas, did not originate during service or for many years thereafter; it is not otherwise related to service. 2. A lung disorder, to include as secondary to a fever disorder, did not originate during service or for many years thereafter; it is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for a fever disorder, to include all symptoms of erysipelas, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2020). 2. The criteria for an award of service connection for a lung disorder, to include as secondary to a fever disorder, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army from March 1969 to October 1970. In January 2015 the Board remanded the appeal to obtain a new medical examination to determine the etiology of his fever disorder and lung disorder. The Veteran was afforded an examination in April 2015. In June 2017 the Board denied the appeal and in February 2018 the Veteran’s appeal was remanded by the Court of Appeals for Veteran’s Claims to obtain another examination. In June 2018, the Board remanded the appeal for another examination which was conducted in July 2020. Service Connection Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § 1110. Service connection may 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). Service connection generally requires (1) medical evidence of a 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 between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2016). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran served in Vietnam and is therefore presumed to have been exposed to herbicides during service. 38 C.F.R. § 3.307(a)(6). Although certain disorders are presumed to have been caused by herbicide exposure, fevers, erysipelas, lung disorder, and COPD are not among them. However, this does not preclude the Veteran from establishing that these disabilities are related to herbicides, without the benefit of the presumptions. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). Notwithstanding the presumptive provisions, service connection for a fever disorder and lung disorder based on exposure to herbicides may also be established by showing that a disorder is, in fact, causally linked to such exposure. A. Fever Disorder The Veteran has been diagnosed with a fever disorder of an unknown origin. Service treatment records from March 1969 to October 1970 are silent as to any fever disorders or treatment for a fever disorder. In September 1969 the Veteran was examined for airborne training eligibility. The Veteran reported that his skin, lymphatics, lungs, feet, and lower extremities were all normal and the Veteran indicated he was in good health. The examiner recorded a history of mumps at age 9, no sequelae. On examination, the Veteran’s PULHES profile indicated that he was in excellent physical health with a rating of “1” in all categories. Odiorne v. Principi, 3 Vet. App. 456 (1992) ((observing that the “PULHES” profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). In December 1969 the Veteran was examined for class III flight eligibility. The Veteran reported that his skin, lymphatics, lungs, feet, and lower extremities were all normal. The examiner recorded a history of mumps as a child, no sequelae. On examination, the Veteran’s PULHES profile indicated that he was in excellent physical health with a rating of “1” in all categories. Id. In an October 1970 report of medical history for service separation, the Veteran indicated that his physical condition was “excellent” and “unchanged” since his last physical examination. Upon examination, the examiner indicated the Veteran’s skin, lymphatics, lungs, feet, and lower extremities were all normal and made no notations to indicate other medical concerns. The Veteran’s PULHES profile on separation indicated that he was in excellent physical health with a rating of “1” in all categories. Id. Following service separation, the record is silent for treatment of a fever disorder until October 1984. An October 1984 private treatment record indicates the Veteran was admitted for cellulitis on his right leg and spiking chills with apparent sepsis. The Veteran reported experiencing a similar episode in 1981 and experienced similar redness and swelling of his right anterior lower leg. A malaria smear returned a negative result. The Veteran was diagnosed with a fungal infection of his foot and acute right leg streptococcal cellulitis and sepsis. In November 2005 the Veteran was afforded a VA examination. The examiner observed that the Veteran’s erysipelas was possibly rated to his military service. A November 2005 VA treatment record indicates the Veteran began having fevers intermittently in the 1970s and experienced swollen lymph nodes after running. The Veteran also reported that an earlier physician had diagnosed him with erysipelas. A December 2005 VA treatment record notes the Veteran has experienced fevers for years with lymphadenopathy. The Veteran reported experiencing fevers since the early 1970s approximately five times per year. The treatment record also notes a history of malaria from time spent in Africa, however, there is no diagnosis of malaria. The clinician stated that malaria was a distant possibility and not associated with LAD and diagnosed the Veteran with episodic fevers, chills, body aches, and lymphadenopathy with an unknown etiology. The medical evidence from May 2006 to July 2009 indicates the Veteran had multiple complaints of fever and chills. A July 2009 VA treatment record states the Veteran’s current fever disability should not be diagnosed as erysipelas and diagnosed the Veteran with fever of an unknown origin. In a June 2006 buddy statement, a fellow soldier noted the Veteran was a door gunner and medic while stationed in Vietnam and was exposed to a variety of chemicals, experienced rashes and sores, and sometimes had difficulty breathing. In a February 2007 lay statement, the Veteran indicated his diagnosis is not erysipelas and described a history of chills and high temperature episodes dating back to early 1972. The Veteran also indicated that he began seeking treatment in 1978, records of these treatments were destroyed by the private physician after the Veteran discontinued seeking care with him. In a September 2009, a medic who served with the Veteran in Vietnam recalled treating him for infections, rashes, and fevers on a number of occasions. An August 2013 VA treatment record indicates the Veteran has fever of an unspecified origin. While the Veteran asserted the fevers were due to Agent Orange exposure, the author of the treatment record stated that connection with Agent Orange had, “not been proven one way or another.” In April 2015, the Veteran was afforded a VA examination. The Veteran reported experiencing high fever, chills, myalgia, and diaphoresis in the spring of 1971. The Veteran stated that he experienced episodes of high fever about every three months, with symptoms occurring at night and but resolving by morning. The examiner noted the July 2009 diagnosis of fever of an unknown origin and listed the disease as inactive. The examiner opined that the fever disorder was less likely than not incurred in or caused by the claimed in-service injury, event or disease. The examiner stated that there were no documented episodes of fever within one year of service and fevers are not listed as a condition presumed to be caused by Agent Orange exposure. In the February 2018 Joint Motion for Remand (JMR), the parties agreed that the examiner did not consider the possibility that the Veteran’ fever disorder was directly caused by the Veteran’s exposure to Agent Orange (notwithstanding that the fever disorder is not a presumptive condition). In July 2020, the Veteran was afforded a VA examination. The examiner noted that assuming exposure to Agent Orange, there is no documented evidence to support the association of the Veteran’s chronic fever of an unknown origin with Agent Orange. The examiner noted that the Veteran’s treating clinician declined to confirm a connection between Agent Orange and the Veteran’s fevers. The examiner concluded that the Veteran’s fever disorder was not the result of exposure to Agent Orange and opined that the Veteran’s condition was due to neoplastic, infectious (viral/bacterial/parasitic), or rheumatic causes. The Board has considered the Veteran’s contentions that his fever disorder originated in-service, potentially as a result of exposure to Agent Orange. However, no competent medical provider has opined that the Veteran’s current fever disorder is related to his service. In particular, as to the August 2013 VA treatment record and the observation that that a connection between herbicides and fever had “not been proven one way or another,” the observation is not probative as it indicates the connection is speculative. Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). The Board has considered the Veteran’s assertions that his fever disorder is caused by his in-service Agent Orange exposure. The Veteran is not competent, however, to offer an opinion as to the etiology of this type of fever disorder due to the medical complexity of the matter involved. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994). A preponderance of the evidence is against a finding that the Veteran’s fever disorder originated during service. The record reflects that the Veteran was first seen for his fever disorder in October 1984, approximately 14 years after service separation. No competent medical provider has opined that the Veteran’s fever disorder began in or was the result of service. The Veteran’s July 2020 VA examination stated the Veteran’s fever disorder is less likely than not related to service, even if exposure to Agent Orange is presumed and in March 2010 the Veteran’s treating physicians declined to provide a statement linking the Veteran’s current fever disorder to his service. Therefore, service connection is not warranted, and the claim is denied. B. Lung Disorder The Veteran has been diagnosed with a chronic obstructive pulmonary disease (COPD). Service treatment records from March 1969 to October 1970 are silent as to treatment or diagnosis for any lung disorders, to include COPD. As noted, the September 1969 airborne training eligibility examination found that the Veteran’s PULHES profile indicated that he was in excellent physical health with a rating of “1” in all categories. Odiorne v. Principi, 3 Vet. App. 456 (1992) ((observing that the “PULHES” profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). In December 1969 the Veteran was examined for class III flight eligibility. The Veteran reported that his skin, lymphatics, lungs, feet, and lower extremities were all normal. The examiner recorded a history of mumps as a child, no sequelae. On examination, the Veteran’s PULHES profile indicated that he was in excellent physical health with a rating of “1” in all categories. Id. In an October 1970 report of medical history for service separation, the Veteran indicated that his physical condition was “excellent” and “unchanged” since last physical. Upon examination, the examiner indicated the Veteran’s skin, lymphatics, lungs, feet, and lower extremities were all normal and made no notions to indicate other medical concerns. The Veteran’s PULHES profile on separation indicated that he was in excellent physical health with a rating of “1” in all categories. Id. Following service separation, the record is silent for treatment of a lung disorder until February 2005. A February 2005 VA treatment record notes paresis of the right hemidiaphragm but states there is no motion to suggest that the right hemidiaphragm is paralyzed. An October 2005 VA treatment record indicates the Veteran had no active pulmonary disease and noted increased elevation of the right hemidiaphragm. The clinician concluded that no active disease was present. In a November 2005 VA treatment record, the Veteran asserted that he had half of his diaphragm paralyzed. In a December 2005 VA treatment record, the Veteran reported that he was diagnosed with diaphragm paralysis in the 1990s. In a June 2006 buddy statement, a fellow soldier recalled the Veteran was a door gunner and medic while stationed in Vietnam and was exposed to a variety of chemicals, experienced rashes and sores, and sometimes had difficulty breathing. Medical evidence from July 2008 to January 2009 indicates the Veteran experienced shortness of breath during exertion and an August 2008 VA treatment record diagnosed the Veteran with small airways disease. The Veteran testified in substance during March 2013 hearing testimony that while in Vietnam, he was exposed to dust and “road wash.” He alleged that these substances likely entered his lungs. In April 2015, the Veteran was afforded a VA examination. The Veteran again alleged experiencing paralysis of his right hemidiaphram and dyspnea with exertion, both with an unknown etiology in 1997-1998. He smoked while in the Army for a year and a half but discontinued smoking after separation from service. The examiner diagnosed the Veteran with COPD and stated that the condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In rendering his medical opinion, the clinician noted that it is not possible to conclude that COPD has been caused by or aggravated by a fever of unknown etiology. The examiner additionally stated that COPD is not a condition recognized by the VA as being associated with exposure to Agent Orange. In the February 2018 JMR, the parties agreed that the examiner failed to consider the possibility that the Veteran’ lung disorder was directly caused by the Veteran’s exposure to Agent Orange. In addition, the parties agreed that the examiner did not provide an adequate rationale for her conclusion. In July 2020, the Veteran was afforded a VA examination. The examiner noted a diagnosis for right diaphragmatic paralysis. The examiner opined that even if exposure to Agent Orange during service is assumed, there is no documented evidence to support the association of diaphragmatic palsy with Agent Orange. The examiner stated that the condition is either due to traumatic muscular damage, damage to the phrenic nerve, or malignancy. The Board has considered the Veteran’s contentions that his lung disorder, to include COPD, originated in-service, potentially as a result of exposure to Agent Orange, road wash, or dust. However, no competent medical provider has opined that the Veteran’s current lung disorder, to include COPD, is related to his service. Additionally, the Veteran’s claims of a lung disorder secondary to fever disorder cannot succeed since the fever disorder has not been found to be service connected. (Continued on the next page)   The Board has considered the Veteran’s assertions that his lung disorder is caused by his service. The Veteran is not competent, however, to offer an opinion as to the etiology of this type of lung disorder, to include COPD, due to the medical complexity of the matter involved. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994). A preponderance of the evidence is against a finding that the Veteran’s lung disorder originated during service. The record reflects that the Veteran was first seen for his lung disorder in February 2005, approximately 34 years after service separation. No competent medical provider has opined that the Veteran’s lung disorder began in or was the result of service. The July 2020 VA examination stated that the Veteran’s lung disorder was not related to his service and cited alternative causes including traumatic muscular damage, damage to the phrenic nerve, or malignancy. The Veteran’s claim of secondary service connection due to fever disorder cannot succeed because the Veteran’s fever disorder does not warrant service connection. Therefore, service connection is not warranted, and the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Wozniak, 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.