Citation Nr: 21021707 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-05 090 DATE: April 13, 2021 ORDER Entitlement to service connection for a respiratory disability (claimed as chronic obstructive pulmonary disorder (COPD)), to include as due to undiagnosed or medically unexplained chronic multi-symptom illness, is granted. FINDING OF FACT The Veteran’s respiratory disorder is not due to a known clinical entity and there is competent medical evidence that coughing and choking, with vomiting while coughing and a lot of mucous in the throat are manifestations of an undiagnosed illness arising from service in Southwest Asia. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder manifesting as coughing and choking, with vomiting while coughing and a lot of mucous in the throat due to an undiagnosed illness have been met met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. § 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 2004 to November 2004, to include service in Southwest Asia. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision. An October 2018 Board decision (by a Veterans Law Judge other than the undersigned) denied service connection for COPD. A July 2019 United States Court of Appeals for Veterans Claims (CAVC) joint motion for partial remand (JMPR) vacated and remanded the portion of the October 2018 Board decision which denied service connection for COPD. In December 2019, the Board (by a Veterans Law Judge other than the undersigned) remand the matter for additional development. Service Connection Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Service connection may also be established for a qualifying chronic disability that became manifest either during active 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. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The term “qualifying chronic disability” means a chronic disability resulting from any of the following (or any combination of the following): an undiagnosed illness; a medically unexplained chronic multi symptom illness (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders) that is defined as a cluster of signs or symptoms; or, any diagnosed illness that VA determines. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1)(i). 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. A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from the VA’s Schedule for Rating Disabilities for a disease or injury in which functions affected, anatomical localization, or symptomatology are similar. 38 C.F.R. § 3.317(a) (2-5). Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, signs or symptoms involving fatigue, signs or symptoms involving the skin, headaches, muscle pain, joint pain, neurological signs and symptoms, neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b). Among the requirements for service connection for a disability due to an undiagnosed illness is that such disability, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). There must be no affirmative evidence that the disability was not incurred during military service in the Southwest theater of operations. See 38 C.F.R. § 3.317(a)(7). In cases where a Veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C. § 1110 is nevertheless warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Veteran asserted that he had a respiratory disability (claimed as COPD) due to an undiagnosed or medically unexplained chronic multi-symptom illness from his service in Southwest Asia. An undated theater medical registry record notes the Veteran was seen in Iraq with complaints of congestion in his nasal sinus and a runny nose. He also stated he wished to stop smoking and requested Wellbutrin. In a March 2013 private opinion, the provider opined that the Veteran had chronic obstructive lung disease likely secondary to inhaling fumes and toxins at the time of IED explosion. On April 2020 respiratory conditions examination, no respiratory condition was diagnosed. The examiner noted by history that the Veteran was around burn pits, and fire and smoke associated with a bombing for approximately 72 hours. The Veteran reported constant cough and a lot of mucous in the throat. The examiner noted the condition had not resolved but had gotten worse. Symptoms were noted as coughing and choking, with vomiting while coughing and a lot of mucous in the throat. The examiner noted there was no objective evidence of COPD. The examiner found there was no objective evidence to support any respiratory diagnosis at the time. On January 2021 medical addendum opinion, the clinician noted the Veteran’s reported symptoms of coughing and choking noted on examination. The clinician also noted that there was no diagnosis rendered for the reported symptoms. The clinician further noted that smoking and chewing tobacco were unlikely to have caused the reported symptoms and coupled with the Veteran’s young age it was at least as likely as not that the Veteran’s signs and symptoms were a manifestation of an undiagnosed illness. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection for respiratory disorder based on an undiagnosed illness is warranted. The Veteran’s respiratory disorder was not diagnosed during service. However, there is a relatively equal balance of evidence for and against a service-related origin for his symptoms. The Board finds the combination of the March 2013 private opinion, the April 2020 respiratory conditions examination, and the January 2021 medical addendum opinion to be collectively supportive that the Veteran’s respiratory symptoms amount to an undiagnosed illness related to his service in Iraq. The examinations and medical opinions collectively considered the Veteran’s location and circumstances of service, considered the Veteran’s symptoms, and noted that a diagnosed illness was not shown to explain such symptomatology. Notably, the January 2021 clinician specifically noted that possible alternative etiologies (smoking and chewing tobacco) were unlikely to have caused the reported symptoms. Under such circumstances, the Board finds that the evidence of record is in relative equipoise. Accordingly, resolving reasonable doubt in the Veteran’s favor (see 38 C.F.R. § 3.102), the Board finds that that it is reasonably shown that the Veteran’s respiratory symptoms amount to an undiagnosed illness related to his service in Southwest Asia, and service connection is warranted. Timothy Berryman Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Staskowski, 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.