Citation Nr: 21015655 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 14-22 129 DATE: March 18, 2021 ORDER Service connection for degenerative joint disease (DJD) of all joints, other than lumbar spine, is denied. Service connection for respiratory disability, to include chronic obstructive pulmonary disorder (COPD) and emphysema, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding DJD of any joints, other than the lumbar spine or service-connected cervical spine. 2. The preponderance of the evidence is against finding the Veteran’s COPD and emphysema began during service or are related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for DJD of the joints, other than lumbar spine, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for respiratory disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty from February 1988 to February 1992, including service in Southwest Asia. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, to include degenerative arthritis, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. VA has recognized the Veteran a Persian Gulf veteran under 38 C.F.R. § 3.317(e). Service connection may 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). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). 1. Service connection for DJD, other than lumbar spine An April 2020 Board decision found new and material evidence was received to reopen a claim for service connection for DJD of all joints, other than lumbar spine, and remanded the reopened claim for further development. Of note, the Veteran is service connected for chronic fatigue syndrome (CFS) and cervical spine degenerative arthritis. The preponderance of the evidence is against finding DJD of any joints, other than the lumbar spine or service-connected cervical spine. A June 2019 VA examination diagnosed CFS, manifested by numerous symptoms, to include migratory joint pain. The Veteran described widespread joint and body pain to the lower back, mid back, upper back, neck, hips, pelvis, thighs, knees, ankles, shoulder, wrists, feet, and hands. The clinician noted a 2507 (VA 21-2507a Request for Physical Examination) mentioned DJD. The clinician stated DJD is a diagnosis of aging. The clinician opined, per history of the Veteran, his CFS started in service or immediately after separation from service. The clinician opined that at that time he was very young and not diagnosed with DJD. A September 2020 VA examination of the hips and ankles found no evidence of DJD. The clinician noted August 2020 hip and ankle imaging were normal. The Board gives probative weight to the September 2020 VA examination finding no evidence of DJD. This finding was made after review of the Veteran’s medical history, consideration of lay statements, and physical examination. This finding is consistent with the June 2019 VA examination finding the Veteran’s joint pain experienced since separation from service is a manifestation of CFS. As the preponderance of the evidence is against the claim, service connection for DJD of the joints, other than lumbar spine, is denied. 2. Service connection for respiratory disability The Veteran contends respiratory disability related to exposure to dusty environments, hot environments, and smoke from oil well fires during service in Southwest Asia. The Veteran is diagnosed with COPD and emphysema. Therefore, the question for the Board is whether the Veteran’s respiratory disability began during service or is related to service, to include as due to environmental exposures during service. The Veteran is a Persian Gulf veteran under 38 C.F.R. § 3.317(e). Here, COPD and emphysema are diagnosed conditions and do not qualify for the presumptive provisions outlined in 38 C.F.R. § 3.317. The Board will still consider entitlement to service connection of a direct basis. Service treatment records (STR) do not show complaint, treatment, or diagnosis of respiratory disability during service. Post-service, a July 2008 VA treatment visit assessed emphysema. An October 2008 lung function test assessed moderate emphysema. An October 2008 VA treatment visit assessed COPD. A June 2021 VA examination diagnosed COPD and emphysema. The Veteran reported he was initially diagnosed with COPD in 2002, after developing shortness of breath. The clinician opined the Veteran’s respiratory disability was less likely than not incurred in or caused by service. The clinician stated STR did not demonstrate respiratory complaints or treatments during service. The clinician stated there is no evidence that specific exposures, including pollutants, are established etiologies of COPD or emphysema in medical literature. The clinician noted the Veteran’s extensive smoking history with estimates ranging from 28 years at half a pack per day (noted in April 2018 treatment notes) to 40 years at 1 pack per day (noted in a December 2018 VA examination). The clinician stated that smoking is a well-established etiology of COPD and emphysema in the medical literature. The Board gives probative weight to the June 2021 VA examiner finding the Veteran’s respiratory disabilities were less likely than not incurred in or caused by in-service injury, event, or illness. The opinion is based on an accurate medical history and provided an explanation that contained a clear conclusion and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The opinion discussed the Veteran’s exposure to environmental pollutants during service and smoking history as reported during his treatment visits. As the preponderance of the evidence is against the claim, service connection for respiratory disability is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Winkler, 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.