Citation Nr: 21023765 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-03 888 DATE: April 21, 2021 ORDER Service connection for asthma is denied. Service connection for a condition manifested by sleeplessness and fatigue is denied. FINDING OF FACT The preponderance of the evidence is against finding that asthma and a condition, claimed to manifest with symptoms of sleeplessness and fatigue, began during active service, or is otherwise related to an in-service injury or disease, to include reported exposure to herbicide agents and trichloroethylene. CONCLUSIONS OF LAW 1. The criteria for service connection for asthma have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 2. The criteria for service connection for a condition manifested by sleeplessness and fatigue have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1964 to April 1969 and August 1971 to June 1992. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is associated with the claims folder. The Board remanded the issues on appeal in October 2019. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 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). 1. Service connection for asthma is denied. 2. Service connection for a condition manifested by sleeplessness and fatigue is denied. The Veteran seeks service connection for asthma, and a condition manifested by sleeplessness and fatigue based on multiple theories of entitlement. See October 2012 VA Form 21-4138; October 2011 VA Form 21-526. At the June 2019 Board hearing, the Veteran testified symptoms of asthma, sleeplessness and fatigue had onset during his active service, but were not consistent. See also October 2012 VA Form 21-4138. However, the Veteran also testified that asthma symptoms became chronic in 1995/1996 (after service). In addition, the Veteran testified that sleepless had onset during the last two years of active service with periodic symptoms. Alternatively, the Veteran contends that his claimed disabilities are due to exposures in service. Of note, the Veteran testified that he was exposed to herbicide agents in Guam and Thailand. In this regard, the Veteran testified that he worked on B-52s as a maintenance man in U-Tapao Airfield, Thailand. In addition, the Veteran relates his conditions to environmental hazards throughout service, including in the Gulf War and exposure to trichloroethylene. The Veteran testified that he was exposed to trichloroethylene as a cleaning/degreasing agent for machine guns on B-52s aircraft on a daily basis during the first 10 years of service. The Veteran also alleged exposure to trichloroethylene through groundwater contamination at Wurthsmith and Mather Air Force Bases, where he was stationed. Gulf War Service connection may also be established for a chronic disability manifested by certain signs or symptoms which 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, and which, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117 ; 38 C.F.R. § 3.317 (a)(1). Military personnel records indicate that the Veteran had service in in Saudi Arabia from January 1991 to March 1991 during the Persian Gulf War. See citation to accompany award of meritorious service medal; DD 214. A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): an undiagnosed illness; the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) functional gastrointestinal disorders; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service-connection. 38 C.F.R. § 3.317 (a). The term medically-unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a). “Objective indications of 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. 38 C.F.R. § 3.317 (a). As noted, the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War. However, the competent and probative evidence, including the December 2019 VA examinations for respiratory conditions and chronic fatigue syndrome (CFS), show that the claimed conditions are related to known clinical diagnoses. Specifically, the December 2019 VA examinations noted that the Veteran had asthma. Likewise, the December 2019 VA examinations attributed the Veteran’s sleeplessness and fatigue to his insomnia, hypogonadism, alcohol abuse, hypertension medication, and asthma. The VA examiner is competent to make these findings and supported the opinions with an adequate rationale. Comparatively, there is no competent opinion which attributes the Veteran’s symptoms to a medically-unexplained chronic multisymptom illness. Thus, the conditions at issue in this appeal have been attributed to known clinical diagnoses. Accordingly, service connection under the provisions of 38 C.F.R. § 3.317, for an undiagnosed illness, is not appropriate. Nonetheless, consideration of a Veteran’s claim under this regulation does not preclude consideration of entitlement to service connection on a direct basis. Herbicide Agent Exposure VA regulations provide that a Veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 C.F.R. § 3.307 (a)(6)(iii). In the present case, the Veteran’s service personnel records reflect no service in Vietnam, but do confirm service in Thailand, at the U-Tapao RTAFB. While there is no presumption of exposure to herbicide agents in Thailand, herbicide exposure may be conceded if a veteran served at U-Tapao RTAFB and he or she was involved with perimeter security duty or otherwise had official duty along the perimeter of the base. See Overton v. Wilkie, 30 Vet. App. 257, 264 (2018). The Board notes that U-Tapao RTAFB is recognized as a military base in which herbicide exposure should be acknowledged on a facts-found or direct basis if a veteran served near the air base perimeter, as shown by MOS, performance, evaluations, or other credible evidence during the Vietnam era. Moreover, where a veteran was exposed to an herbicide agent during service, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309 (e). Neither asthma or sleepless and fatigue are among the diseases listed in § 3.309 for which presumptive service connection is available based on in-service herbicide exposure. Notwithstanding the foregoing, the Veteran is not precluded from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Turning to the facts of the present case, the Veteran’s MOS was defensive FCS technician. See DD 214. In a performance evaluation for the period from March 1968 to October 1968, the Veteran was noted to have duties which included repairing and tracking machine guns, radar, and equipment associated with flight line maintenance of B-52D aircraft. At that time, the Veteran was assigned to U-Tapao RTAFB. In similar performance evaluations from October 1973 to October 1974, and from October 1974 to January 1975, the Veteran’s duties at U-Tapao RTAFB included repairing machine guns and associated equipment, and supervision of flight line maintenance assigned to the 307th strategic wing B-52D aircraft. In marked up maps of U-Tapao RTAFB, received by VA in December 2019, the Veteran indicated that the road he used to access the bomber revetment on a daily basis was within 500 meters of the base perimeter. Further, the Veteran indicated that he lived in the barracks within 500 meters of the base perimeter at U-Tapao RTAFB from October 1969 to April 1969, and from February 1974 to February 1975. On a similar map, the Veteran indicated he lived in a hootch nearby the main gate from April 1968 to September 1968, and worked on bomber aircraft on the west ramp, within 500 meters of the base perimeter. In an October 2020 administrative decision, VA determined that it lacks the information necessary for JSRRC to verify herbicide exposure in Guam and Thailand. The Veteran’s MOS does not fall under the enumerated list of occupational specialties with duties that would place him near the base perimeters of U-Tapao RTAFB. Nonetheless, the Veteran has consistently maintained that he was directly exposed to herbicide agents on the base from working, traveling and living near the flight line. Even if the Board were to determine that the evidence is at least in equipoise to find the Veteran was exposed to herbicide agents in service, the presumption for service connection applicable to diseases listed in 38 C.F.R. § 3.309 (e) does not apply to asthma or to symptoms of sleepless and fatigue. As such, the Board must evaluate whether service connection may be granted with proof of direct causation. Direct Service Connection for Asthma Based on the following, the Board concludes that the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of asthma began during service or is otherwise related to an in-service injury, event, or disease, to include exposure to herbicide agents, trichloroethylene. Service treatment records are silent for diagnosis or treatment for asthma. In fact, numerous in-service examinations show normal lungs and chest. See e.g. service treatment records from January 1968, March 1970, April 1975, May 1980, May 1983, October 1989, and May 1991. A July 1987 periodic evaluation noted normal lungs and chest, as well as the results of a pulmonary function test (PFT) with FVC 94%, FEV1 107%, FEV1/FVC 86%. In an October 1989, report of medical history, the Veteran denied asthma. A May 1991 annual physical examination noted no relevant complaints. Consistent with the Veteran’s hearing testimony that he started experiencing problems with asthma in 1996, the post-service treatment records and VA examinations show the Veteran was not diagnosed with asthma until many years after service. At an October 1992 VA general medical examination, there were no complaints of respiratory issues. In October 1996 private treatment records, the Veteran reported a 25 pack year smoking history, but denied fatigue, cough, shortness of breath, dyspnea on exertion, and asthma. See also undated private treatment records (noting 40 year pack history, tobacco use since 1991); October 1989 service treatment records (noting that the Veteran reported that he quit smoking two months prior). The physical examination was normal for chest/lungs. Similarly, the Veteran completed a health history in December 1997 and denied currently having or having had asthma in the past year. In the first discernible complaints for symptoms related to asthma, the Veteran was seen in March 2010 with complaints of shortness of breath and fatigue for the last one and a half months. The assessment was shortness of breath, fatigue, and insomnia. A restrictive pattern was shown in an April 2010 PFT. The evaluation noted an impression of shortness of breath and cough, likely related to reactive airway disease. Subsequently, in June 2010, the Veteran was given an impression of dyspnea related to GERD and indoor reactive airway disease. Further, an August 2017 VA respiratory examination shows a diagnosis of asthma; a nexus opinion was not provided. Pursuant to the Board’s remand, the Veteran was afforded an examination in December 2019. Following review of the claims file and physical examination, the examiner provided a diagnosis of asthma. The VA examiner opined that the Veteran’s asthma is not at least as likely as not related to an in-service injury, event, or disease, including reported in-service exposure to herbicide agents and to trichloroethylene. In providing the rationale for the opinion, the examiner noted that the treatment service records were negative for asthma and it first manifested many years after discharge. The examiner further explained that asthma is not associated with either Gulf War exposures or herbicide agent exposure. The examiner referenced medical literature in support of this finding. In brief summary, the literature indicated that medical studies show risk factors for asthma in adults are obesity, active and passive tobacco smoke exposure, certain occupational exposures, chronic rhinitis, and hormone replacement therapy. The examiner noted that the Veteran has an extensive smoking history. He also explained that the Veteran’s in-service military occupational specialty is not associated with an increased risk of asthma. With respect to the claimed trichloroethylene (TCE) exposure, the examiner discussed medical literature related to TCE and hydrocarbon exposure. He explained that according to the CDC toxicology profile, there is a relatively short half-life for the TCE compound and thus, is not considered a persistent atmospheric compound. The examiner also indicated that the systemic effects of hydrocarbon exposure include cardiac arrythmias and secondary to myocardial sensitization and central nervous system depression. He opined that given the short half-life of TCE and the absence of any in-service events consistent with TCE toxicity, it is highly unlikely that any in-service exposure to the TCE is etiologically related to the Veteran’s asthma. The Board finds the opinion highly probative because it is based on an accurate medical history, it is thorough, and provides a cogent explanation with clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran is competent to report having experienced respiratory symptoms, he is not competent to determine etiology of his currently diagnosed asthma. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). His lay assertion in this regard is not probative. Accordingly, the competent and probative evidence weighs against a nexus between the current disability and active service. There is no reasonable doubt to be resolved in this instance. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Service connection for asthma is not warranted. Direct Service Connection for a Disorder, claimed as Sleeplessness and Fatigue The preponderance of the evidence weighs against finding that a disorder, claimed as sleeplessness and fatigue, began during service or is otherwise related to an in-service injury, event, or disease, to include reported exposure to herbicide agents, trichloroethylene, or Gulf War exposures. In this regard, the Veteran’s service treatment records are silent for complaints, diagnosis, or treatment for sleepless and fatigue. In fact, numerous in-service examinations noted no abnormality related to sleepless and fatigue. See e.g. service treatment records from January 1968, March 1970, April 1975, May 1980, May 1983, October 1989, and May 1991. A June 1989 annual clinical evaluation showed no related abnormalities. In an October 1989, report of medical history, the Veteran denied frequent trouble sleeping. A May 1991 annual physical examination noted no complaints or abnormality. Consistent with the Veteran’s hearing testimony that he started experiencing problems with sleeplessness, fatigue, and listlessness in 1995, the post-service records show relevant complaints many years after service. March 2010 private treatment records show he reported experiencing shortness of breath and fatigue for the last one and a half month. At that time, clinical assessments of fatigue, insomnia, and shortness of breath were noted. In a follow-up March 2010 evaluation about two weeks later, the clinician noted there had been increased fatigue after the simvastatin medication was increased. The clinical assessment was “anemia of chronic disease, fatigue (statins?), and hyperlipidemia.” Pursuant to the October 2019 Board remand, a VA examination was conducted in December 2019 for sleep apnea and chronic fatigue syndrome (CFS). The VA examination was performed by the same examiner who evaluated the asthma disorder. The VA examiner reviewed the claims file and conducted a physical examination of the Veteran. The examiner indicated that a diagnosis of obstructive sleep apnea is not substantiated, and the Veteran does not have CFS and explained how he reached this conclusion. He determined that the Veteran’s subjective symptoms are best attributed to current diagnoses of insomnia, hypogonadism, asthma, his use of hypertension medication, and alcohol abuse. The examiner further explained that the attributable causes of fatigue and sleeplessness are not related to exposures from the Gulf War, trichloroethylene, or herbicide agent. In doing so, the explained that the conditions are not generally associated with exposure to herbicide agents or the Gulf War. In the respiratory VA examination report completed the same day, the examiner explained that the Veteran did not experience an event in service consistent with trichloroethylene toxicity. He explained that according to the CDC toxicology profile, there is a relatively short half-life for the TCE compound and thus, is not considered a persistent atmospheric compound. He also opined that he did not find evidence of any in-service events consistent with TCE toxicity. The examiner also noted that the Veteran’s service treatment records were negative for complaints and symptoms of fatigue and sleeplessness in service. For these reasons, the examiner opined that the claimed sleeplessness and fatigue were not related to military service. The December 2019 VA opinion is cogent, thorough, and persuasive. This opinion, particularly when considered with the respiratory examination opinion discussing TCE toxicity and exposure, is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). When reviewed in light of the entirety of the evidence, the opinion is highly probative evidence against the claim. In addition, there are no competent or probative opinions to the contrary. While the Veteran is competent to report having experienced sleepless and fatigue, the Board has noted that he is not competent to provide a diagnosis in this case or determine the etiology of these symptoms. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As such, the ability to link them to any later diagnosed conditions are outside the competent scope of lay testimony. As previously indicated, the symptoms at issue in this appeal have been attributed to known clinical diagnoses. Accordingly, service connection as an undiagnosed illness, under the relevant provisions in 38 C.F.R. § 3.317, is not appropriate. The competent and probative evidence does not show the claimed symptoms are otherwise clinically due to disabilities of service origin. In short, the competent and probative evidence weighs against causal nexus. There is no reasonable doubt to be resolved in this instance. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Service connection for a disorder, claimed as sleeplessness and fatigue is not warranted. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Vuong, 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.