Citation Nr: 21023763 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 20-15 034 DATE: April 21, 2021 ORDER Entitlement to service connection for a respiratory disability characterized as asthma and reactive airway disease is granted. REMANDED Entitlement to service connection for chronic fatigue is remanded. Entitlement to service connection for a skin disability to include dermatitis and psoriasis is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for a gastrointestinal disability, to include irritable bowel syndrome is remanded. Entitlement to a rating that is greater than 30 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, his respiratory disability characterized as asthma and reactive airway disease is related to exposure to toxic chemicals during service. CONCLUSION OF LAW The criteria for service connection for a respiratory disability characterized as asthma and reactive airway disease are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a), (c). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from April 2006 to August 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decisions dated in January 2018 and November 2018. The Board finds the issue of entitlement to a TDIU was raised by the record in November 2019 to include as due to the Veteran’s service-connected PTSD; therefore, the Board has jurisdiction over that issue and it will be considered in this appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). Service Connection 1. Entitlement to service connection for a respiratory condition The Veteran seeks service connection for asthma and reactive airway disease, which he asserts are due to his service during the Persian Gulf War including exposure to toxic chemicals. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). The Board has carefully reviewed the evidence of record and finds that the Veteran has a respiratory disability characterized as asthma and reactive airway disease, which is due to exposure to toxic chemicals. Thus, the criteria for service connection for a respiratory disability characterized as asthma and reactive airway disease have been met. The Board finds that the Veteran served on active duty during the Persian Gulf War in the Southwest Asia theater of operations. In December 2007, the Veteran reported that sometimes he had been exposed to smoke from burning trash or feces, and often he had been exposed to sand and dust. The Board concedes that the Veteran was likely exposed to environmental hazards in Iraq, during his employment to Operation Iraqi Freedom (OIF) or Operation New Dan (OND), between March 2003 and December 2011. Further, the AOJ has identified the Veteran as an individual having concerns or possible evidence of a symptomatic exposure to chemical warfare agent (CWA) or weaponized toxic industrial chemical (WTIC). See October 2015 and December 2019 Notification Letters. Based upon a preponderance of the evidence, the Board finds that the Veteran does not currently have and has never had any objective indications of an undiagnosed or medically unexplained chronic multisymptom illness manifested by chronic respiratory symptoms. See 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317. A current diagnosis of asthma and reactive airway disease have been established based upon symptoms of difficulty breathing and clinical evaluation. A June 2018 private treatment record reflects a diagnosis of asthma and reactive airway disease based upon an April 2018 pulmonary function test (PFT). See also August 2018 VA examination. The Board notes that in October 2018, a VA examiner opined that the Veteran did not have a current diagnosis of a respiratory disability, based upon a current chest CT scan, chest x-ray (CXR), and pulmonary function test (PFT). However, the Board notes that when a disability is not active at a VA examination, the current disability prong of a direct service connection claim is still met if the disability was active at or near the time a claim for VA disability compensation is filed or anytime during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). Thus, the Board finds that the Veteran’s prior diagnosis of asthma and reactive airway disease meets the criteria of a current disability for purpose of establishing direct service connection. The Board has considered whether the Veteran’s respiratory disability characterized as asthma and reactive airway disease is due to a disease or injury in-service, to include exposure to toxic chemicals. See generally Combee v. Principi, 34 F.3d 1039, 1043 (1994). As noted, the Board finds that the Veteran served on active duty during the Persian Gulf War in the Southwest Asia theater of operations as notes that the Veteran reported being exposed to smoke from burning trash or feces as well as sand and dust. Additionally, the Veteran may have been exposed to CWA/WTIC in Iraq, during his employment to OIF or OND, between March 2003 and December 2011. See October 2015 and December 2019 Notification Letter. Resolving all reasonable doubt in favor of the Veteran, and with consideration of the objective medical evidence as well as the subjective lay evidence, the Board finds that there is a nexus between the Veteran’s current respiratory disability and his exposure to toxic chemicals during service. In December 2017, the Veteran underwent an evaluation as part of the Chemical Warfare Agent (CWA) program. The evaluator opined that the Veteran may have had an asymptomatic exposure to chlorine gas during his deployment between 2003 and 2001, based upon the Veteran’s report of exposure to the smell of gas following detonation of improvised explosive devices (IEDs). The evaluator noted that while it may not have caused his symptoms immediately, the previous exposure could have contributed to his current coughing and breathing symptoms and noted that the Veteran had a possible diagnosis of reactive airway dysfunction syndrome. Further, the evaluator noted that the Veteran’s use of tobacco and exposure to mold at home may have been worsening his symptoms. In June 2018, a private treatment provider noted that the Veteran had a current diagnosis of asthma and reactive airway disease with a history of exposure to chemical gas around 2006 to 2009 in the military. The treatment provider opined that the Veteran’s smoking could have been a continued trigger of his symptoms. The Board notes that the August 2018 VA examiner who opined that the Veteran’s respiratory disability was less likely than not incurred in or caused by Gulf War exposure, did not provide a convincing rationale as to why the Veteran’s respiratory condition was not related to his exposure to toxic chemicals in the military. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In addition, the October 2018 VA examiner who opined that the Veteran’s abnormal PFT in October 2018, was secondary to tobacco usage, and his reported symptomatology was likely secondary to natural deconditioning, did not discuss whether the Veteran’s respiratory condition was related to exposure to toxic chemicals in service, which renders the opinion in adequate. Thus, the Board essentially finds that the evidence is in equipoise as to whether the Veteran’s respiratory disability is related to service. “Congress has not mandated that a medical principal must have reached the level of scientific consensus to support a claim for veterans benefits.” Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). Instead, Congress adopted a “low standard of proof” for VA to employ to “resolve a scientific or medical question in the claimant’s favor so long as the evidence for and against that question is in ‘approximate balance.’” Id. The December 2017 evaluation and the June 2018 private treatment record are competent, credible and probative, and coupled with the other medical evidence and lay evidence of record supports a conclusion that service connection for a respiratory disease characterized as asthma and reactive airway disease is warranted. Therefore, the August 2018 VA opinion cannot be afforded greater probative value. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. Resolving all reasonable doubt in favor of the Veteran and based on the medical and lay evidence of record, the Board finds that the evidence of record supports a finding that service connection for a respiratory disability characterized as asthma and reactive airway disease is warranted. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for chronic fatigue is remanded. 2. Entitlement to service connection for a skin disorder to include dermatitis and psoriasis is remanded. 3. Entitlement to service connection for headaches is remanded. The Veteran seeks service connection for chronic fatigue, skin conditions, and headaches, which he asserts are related to service, including as due to exposure to toxic chemicals during service in the Persian Gulf. In this regard, the Board notes that post-service treatment records reflect a diagnosis of somatic symptom disorder, with symptoms of fatigue, rashes, and pain. See April 2018, June 2018 and October 2018 private treatment records. Post-service treatment records reflect that the Veteran’s private treatment providers have diagnosed him with chronic fatigue in April 2018, chronic fatigue and malaise in September 2018, and central sensitization disorder with chronic fatigue in October 2018. With respect to the claim for chronic fatigue, the Board notes that the private treatment records are inadequate to support a diagnosis of chronic fatigue syndrome for VA purposes, as they do not address the relevant criteria. See 38 C.F.R. § 4.88a. In addition, VA examinations do not address the criteria necessary to establish a diagnosis of chronic fatigue syndrome for VA purposes under 38 C.F.R. § 4.88a. See November 2014, January 2018, August 2018 VA examinations and September 2018 VA opinion. However, no VA examiner has considered whether the Veteran has chronic fatigue due to a somatic symptom disorder, and the relationship if any between that disorder manifested by chronic fatigue and the Veteran’s service or a service-connected disability. With respect to the skin condition claim, the Veteran has a current diagnosis of nummular eczema, psoriasis, balanitis and urticaria. See January 2018, August 2018 and October 2018 VA examinations. Most recently in October 2018, a VA examiner attributed the Veteran’s skin disabilities to psoriatic arthritis, and opined that it was a diagnosable, chronic multi-symptom illness with a partially unexplained etiology. However, no VA examiner has considered whether the Veteran’s skin disorders are related to a somatic symptom disorder as suggested by the evidence, and the relationship if any between that disorder manifested by skin conditions and the Veteran’s service or a service-connected disability. With respect to the headache claim, in October 2018, a VA examiner opined that the Veteran’s headaches did not meet the diagnostic criteria for migraine, tension or cluster headaches as defined by the International Headache Society (ICHD-3) in 2013. The Board notes that the examiner opined that the Veteran’s report that he had headaches approximately once a month were likely part and parcel of his service connected PTSD. However, again, no VA examiner has considered whether the Veteran’s headaches are related to a somatic symptom disorder as suggested by the evidence, and the relationship if any between that disorder manifested by headaches and the Veteran’s service or a service-connected disability. Thus, the Board finds that a VA examination is warranted to address these matters that are raised by the record in connection with the Veteran’s claims. 4. Entitlement to service connection for a gastrointestinal condition to include irritable bowel syndrome is remanded. Evidence indicates that there may be outstanding relevant Social Security Administration (SSA) records. See November 2019 lay statement. On remand, the AOJ should ensure that all outstanding SSA records are obtained and associated with the record on appeal. 5. Entitlement to a rating that is greater than 30 percent for PTSD is remanded. The issues of service connection for chronic fatigue, skin conditions and headaches are potentially associated with a somatic symptom disorder, and if so, it is unclear as to relationship between that disorder and the Veteran’s PTSD. As such, additional relevant evidence that might be obtained on remand could significantly impact a decision on the issue of entitlement to a rating that is greater than 30 percent for PTSD. Thus, the issues are inextricably intertwined and a remand of the claim for entitlement to a rating that is greater than 30 percent for PTSD is required. 6. Entitlement to a TDIU is remanded. The issue of entitlement to a TDIU has been raised by the record. See November 2019 lay statement. The AOJ should develop the issue. The matters are REMANDED for the following action: 1. The AOJ should obtain all outstanding SSA records relating to the Veteran’s claim of entitlement to service connection for a gastrointestinal disability, chronic fatigue, skin conditions, headaches, and an increased rating for his PTSD. 2. Request that the Veteran complete a current formal TDIU application form (VA Form 21-8940). Conduct all indicated development to adjudicate the Veteran’s raised TDIU claim. 3. Schedule the Veteran for a VA examination to ascertain the nature and etiology of the Veteran’s chronic fatigue, skin conditions to include dermatitis and psoriasis, and headaches. All necessary tests should be conducted. The AOJ should ensure that the examiner has access to the Veteran’s claims file, including a copy of this remand. Following a review of the Veteran’s record, the examiner should address the following issues. (a.) whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran’s chronic fatigue, skin conditions to include dermatitis and psoriasis, and/or headaches are proximately due to or aggravated by a somatic symptom disorder, and if so, whether the somatic symptom disorder is due to service, or proximately due to or aggravated by the Veteran’s service-connected PTSD. In rendering the opinions, the examiner should consider the statements of the Veteran regarding the symptoms of his somatic symptom disorder, chronic fatigue, dermatitis, psoriasis, and headaches to be competent. (Continued on the next page)   The examiner should provide a complete rationale for all opinions expressed and conclusions reached. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Johnson 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.