Citation Nr: 21027468 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 14-31 705A DATE: May 5, 2021 ORDER Entitlement to service connection for a respiratory disability, to include as a result from hazardous material exposure, is denied. REMANDED Entitlement to an initial evaluation in excess of 20 percent for residuals of a neck injury with surgery with mild degenerative spondylosis with mild marginal osteophyte formation at C5-C7, slight loss of lordotic curve; lower back condition with degenerative endplate changes and disk protrusion at C6-7, is remanded. FINDING OF FACT A respiratory disability of service origin has not been demonstrated. CONCLUSION OF LAW The criteria for a respiratory disability, to include as a result from hazmat exposure, have not been met. 38 U.S.C. §§ 1110, 1117, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from June 2001 to December 2010. The Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge in February 2016. A transcript of the hearing is of record. This matter was remanded for further development in April 2018 and October 2020. The requested development has been completed and the matter is now ready for appellate review. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). As it relates to a qualifying chronic disability, service connection may be established on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness 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, 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). In claims based on undiagnosed illness, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Notably, laypersons are competent to report objective signs of illness. Id. A "qualifying chronic disability" for purposes of 38 U.S.C. § 1117 is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (C), any diagnosed illness that the VA Secretary determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2),(3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). Effective July 13, 2010, VA has amended its adjudication regulations governing presumptions for certain Persian Gulf War Veterans. Such revisions amend § 3.317(a)(2)(i)(B) to clarify that chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome are examples of medically unexplained chronic multi-symptom illnesses and are not an exclusive list of such illnesses. Additionally, the amendment removes § 3.317(a)(2)(i)(B)(4) which reserves to the VA Secretary the authority to determine whether additional illnesses are "medically unexplained chronic multi-symptom illnesses" as defined in paragraph (a)(2)(ii) so that VA adjudicators will have the authority to determine on a case-by-case basis whether additional diseases meet the criteria of paragraph (a)(2)(ii). These amendments are applicable to claims pending before VA on October 7, 2010, as well as claims filed with or remanded to VA after that date. See 75 Fed. Reg. 1,997 (Oct. 7, 2010). Compensation under 38 U.S.C. § 1117 shall not be paid if: (1) there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). The term "Persian Gulf Veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317 (d)(1). The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(d)(2). The Persian Gulf War period runs from August 2, 1990 to a date not later than December 31, 2021. 38 U.S.C. § 101(33). Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). When there is an approximate balance in the 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. The Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Veteran maintains that he currently has a respiratory disability, and/or might develop one in the future, as a result of exposure to hazardous materials in service. Service treatment records reveal that the Veteran was diagnosed with acute bronchitis on one occasion while in service. On a November 2010 report of medical history, it was noted that the Veteran had been prescribed an inhaler for exercise when needed, and that he was having trouble breathing when exposed to grass, pollen, dust, cats, and dogs. At the time of a December 2010 VA examination, physical examination revealed normal gross inspection of the chest and lungs. Palpation revealed no tenderness. Breath sounds were symmetric. There were no rhonchi rales or wheezes. Expiratory phase was within normal limits. VA treatment records reveal no findings or diagnoses of respiratory problems. At the time of his February 2016 hearing, the Veteran testified that he did not have a disability at that moment. In its April 2018 remand, the Board requested that the Veteran be scheduled for a VA respiratory examination to determine the nature and etiology of any current respiratory disorder, to include asthma/acute bronchitis. The examiner was requested to identify any current respiratory disorders, including, but not limited to, asthma and acute bronchitis, and indicate whether it was as likely as not (50 percent probability or greater) that any current respiratory disorder had its onset in service or was otherwise related to service, to include by way of hazardous material exposure. The Veteran was afforded the requested examination in January 2020. At that time, the examiner found that the Veteran did not have a respiratory disorder and rendered no diagnosis. The examiner specifically indicated that for the Veteran's claimed condition of respiratory disorder, to include as a result from hazmat exposure, there was no diagnosis because there were no findings, signs and or symptoms to support a diagnosis. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed inservice injury, event, or illness. He indicated that there was no diagnosis for a respiratory condition due to lack of pathology and exam findings and that the chest x-ray was negative. After reviewing all the evidence both lay and medical, service connection for a respiratory disability, to include as a result of hazmat exposure, is not warranted. To date, there has been no medical evidence submitted or received demonstrating that the Veteran has a respiratory disability, to include as a result of hazmat exposure or had a respiratory disability at any time throughout the appeal period. The Veteran was afforded the opportunity to submit evidence demonstrating a relationship between any current respiratory disability, to include as a result of hazmat exposure, and his period of service and has not done so. Moreover, the VA examiner indicated that the Veteran did not have a respiratory disorder and had not been diagnosed as having a respiratory disorder when reviewing the file. Congress, as a general rule, limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110; and see Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C.§ 1110, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders. The Federal Circuit observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme. Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.§ 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability). Simply put, the general rule is that in the absence of proof of present disability there can be no valid claim. Based on the above, to the extent that the medical evidence addresses whether the Veteran has a respiratory disability, to include as a result of hazmat exposure, it indicates that he does not. The Veteran is competent to report his current symptoms, but his reports must be weighed against the medical evidence of record. See Grover v. West, 12 Vet. App. 109, 112 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent that the Veteran has indicated that he currently has a respiratory disability, to include as a result of hazmat exposure, the competent (medical) evidence does not reflect objective findings by an examining physician, or non-medical indicators capable of independent verification supporting that he has a chronic respiratory disability. The medical evidence showing an absence of such a disability is of greater probative weight than the Veteran's reports made during the course of his claim for VA benefits. The weight of the evidence is against a finding that the Veteran currently has a respiratory disability, to include as a result of hazmat exposure. A necessary element for establishing service connection-evidence of a current disability-has not been shown. For the foregoing reasons, the claim for service connection for a respiratory disability, to include as a result of hazmat exposure, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. REASONS FOR REMAND As it relates to the claim for an increased evaluation for service-connected residuals of a neck injury with surgery with mild degenerative spondylosis with mild marginal osteophyte formation at C5-C7, slight loss of lordotic curve; lower back condition with degenerative endplate changes and disk protrusion at C6-7, the Board notes that in conjunction with the April 2018 Board remand, the Veteran was afforded an examination of his cervical spine in January 2020. The examiner did not address the Veteran's lumbar spine at that time. The Veteran's representative, in his April 2021 written argument, indicated that the recent VA examination of the neck did not include any subjective complaints from the Veteran, or objective findings by the examiner, for the aspect of the service-connected disability that related specifically to the lumbar spine. He indicated that the Board should return this aspect of the claim in order to obtain current information to ascertain whether the lumbar spine impairments were sufficient to support a separate compensable rating at the present time and for the duration of the appeal period. The Veteran has also indicated that he would like an examination performed on his lumbar spine. Given the foregoing, an additional VA examination is warranted. The Board further observes that the codes relating to the cervical and lumbar spine have recently been revised. The matter is REMANDED for the following action: 1. Undertake appropriate development to obtain all outstanding VA and/or private treatment records related to the Veteran's outstanding claim. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified. 2. The Veteran should be scheduled for an appropriate VA examination so as to determine the current level of severity of his service-connected neck injury with mild degenerative spondylosis and osteophyte formation C5-C7and lower back degenerative endplate changes disability. The entire record must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the entire record has been reviewed. All necessary tests should be conducted. The examiner should describe the nature and severity of all manifestations of the Veteran's neck injury with mild degenerative spondylosis and osteophyte formation C5-C7 and lower back degenerative endplate changes disability. In this regard, the examiner should record the ranges of motion of the cervical and lumbar spine observed on clinical evaluation in terms of degrees. If there is clinical evidence of pain on motion, the examiner should indicate the degree at which such pain begins. Then, after reviewing the Veteran's complaints and medical history, the examiner should render an opinion, based upon his or her best medical judgment, as to the extent to which the Veteran experiences functional impairments such as weakness, excess fatigability, incoordination, or pain due to repeated use or flare-ups, and should portray these factors in terms of degrees of additional loss in range of motion (beyond that which is demonstrated clinically), if feasible. In order to comply with the Court's precedential decision in Correia, the examiner must test and record range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, if applicable. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. If range of motion is not possible, the examiner should indicate whether the Veteran has favorable or unfavorable ankyloses of the cervical spine or the lumbar spine or unfavorable ankylosis of the entire spine. The examiner should also state whether the Veteran's service-connected neck injury with mild degenerative spondylosis and osteophyte formation C5-C7 and lower back degenerative endplate changes disability is manifested by any neurological impairment, and, if so, which nerves are involved, and the extent of the impairment (mild, moderate, moderately severe, or severe incomplete, or complete, paralysis of the affected nerve). The examiner should also state whether the Veteran has intervertebral disc syndrome (IVDS). If so, state whether IVDS results in incapacitating episodes, and if so, the duration of the episodes over the past 12 months. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. S. Kelly, 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.