Citation Nr: 22019250 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 17-14 374 DATE: March 31, 2022 ORDER Service connection for a respiratory disorder, to include as due to Persian Gulf service, or secondary to service-connected posttraumatic stress disorder (PTSD) with traumatic brain injury (TBI), is denied. REMANDED Entitlement to service connection for bilateral carpal tunnel syndrome (CTS), to include the wrist and as secondary to service-connected right shoulder disability and/or radiculopathy of the right upper extremity, is remanded. FINDINGS OF FACT 1. The Veteran served in Kuwait/Iraq from February 2003 to February 2004, Iraq from October 2005 to September 2006 and October 2007 to November 2008, and Afghanistan from June 2010 to April 2011 during the Persian Gulf War and is presumed to have been exposed to exposed to fine, particulate matter during such service. 2. The Veteran's diagnosis of mild restrictive lung disease is not listed among the diseases presumptively associated with exposure to fine, particulate matter during such service. 3. The Veteran is a Persian Gulf Veteran. 4. The Veteran's diagnosis of mild restrictive lung disease is a diagnosable chronic multi symptom illness with partially explained etiology, thus not a qualifying chronic disability. 5. The Veteran's current respiratory disorder, diagnosed as mild restrictive lung disease, was not demonstrated in or directly related to an occurrence during active service, to include exposure to fine, particulate matter, and other exposures while in Southwest Asia, nor caused or aggravated by service-connected PTSD with TBI. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory disorder, to include as secondary to service-connected PTSD with TBI, have not been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from August 2002 to September 2011, to include service in Kuwait/Iraq from February 2003 to February 2004 and Iraq from October 2005 to September 2006 and October 2007 to November 2008. His awards and decorations include the Combat Action Badge. The Veteran requested a video conference hearing before the Board and was scheduled for September 2020. The Veteran's request to withdraw his hearing request was received in August 2020. In September 2021, the Board recharacterized the Veteran's claim for breathing problems more broadly to entitlement to service connection for a respiratory disorder, in order to clarify the nature of the benefit sought and ensure complete consideration of the claim, and pursuant to 38 C.F.R. § 3.156(b). See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). The Board also remanded the case for additional evidentiary development, and it has been returned to the Board for further appellate review. There was substantial compliance with the September 2021 remand directives for the issue decided below on the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the Veteran was provided a VA examination and VA medical opinion for respiratory disorder in November 2021 which are adequate because they were based upon consideration of the Veteran's pertinent medical history and current symptoms and described the claimed respiratory disorder in detail sufficient to allow the Board to make a fully informed determination. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). The examiner addressed whether the Veteran's respiratory disorder was due to his exposure to toxins in the Persian Gulf or the result of a medically unexplained chronic multi-symptom illness (MUCMI). It also addressed whether the respiratory disorder was caused or aggravated by the Veteran's service-connected PTSD. This issue was readjudicated in a January 2022 supplemental statement of the case (SSOC). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with regards to the issue discussed below on the merits. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to service connection for a respiratory disorder, to include as secondary to service-connected PTSD with TBI The Veteran served in the Southwest Asia theater of operations, specifically in Kuwait/Iraq from February 2003 to February 2004, Iraq from October 2005 to September 2006 and October 2007 to November 2008, and Afghanistan from June 2010 to April 2011, during the Persian Gulf War and is presumed to have been exposed to exposed to fine, particulate matter during such service. See 38 U.S.C. § 101(33); 38 C.F.R. § 3.317(e)(2). If a veteran was exposed to particulate matter during active service, a specific list of diseases, to include asthma, rhinitis, and sinusitis (including rhinosinusitis), shall be service connected if manifests within 10 years from the date of separation from military service that includes the qualifying period of service in the Southwest Asia theater of operations or in Afghanistan, Syria, Djibouti, or Uzbekistan on or after September 19, 2001 during the Persian Gulf War. See 38 C.F.R. § 3.320(a). In this case, the Veteran is currently diagnosed with mild restrictive lung disease which is not listed among the diseases presumptively associated with exposure to fine, particulate matter during such service under 38 C.F.R. § 3.320. As a result, the presumptive provisions of 38 C.F.R. § 3.320 do not apply. Next, service connection may be granted on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of qualifying chronic disability, including 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, 2026 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). A "qualifying chronic disability" for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multi symptom illness (such as chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that the 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). In this case, the Board finds that the Veteran is a Persian Gulf Veteran as his service personnel records reflect that he served in the Southwest Asia theater of operations, specifically Kuwait/Iraq from February 2003 to February 2004 and Iraq from October 2005 to September 2006 and October 2007 to November 2008. See 38 U.S.C. § 101(33); 38 C.F.R. § 3.317(e)(2). Nevertheless, the Veteran is currently diagnosed with mild restrictive lung disease which is described by the November 2021 VA examiner as a diagnosable chronic multi symptom illness with a partially explained etiology and pathophysiology. Therefore, it is not a qualifying chronic disability. See Stewart v. Wilkie, 30 Vet. App. 383 (2018). "Pathophysiology" is defined as "the physiology of abnormal states; spec[ifically]: the functional changes that accompany a particular syndrome or disease." Webster's Third New International Dictionary of the English Language Unabridged 1655 (1966). Id. at Note 5. The examiner explained the pathophysiology of the Veteran's restrictive lung disease as the following: reduced lung volumes "either because of an alteration in lung parenchyma or because of a disease of the pleura, chest wall, or neuromuscular apparatus." The examiner then explained the etiology of these changes as pleural causes ("trapped lung, pleural scarring, large pleural effusions, chronic empyema, asbestosis"), alveolar causes ("[e]dema, hemorrhage"), interstitial causes ("interstitial lung disease including IPH ([i]diopathy pulmonary fibrosis)... NISP (Non-specific [i]nterstital [p]neumonia), COP (Cryptic Organizing Pneumonia"), neuromuscular causes ("myasthenia gravis, ALS, myopathy") and thoracic/extrathoracic causes ("obesity, kyphoscoliosis, ascites"). The evidence does not show that the Veteran has these conditions, other than obesity. Obesity is documented in an April 2019 VA treatment record, for example. This is discussed in more detail below. VA regulations specifically state that chronic multi symptom illnesses of partially understood etiology and pathophysiology "will not be considered medically unexplained." 38 C.F.R. § 3.317 (a)(2)(ii). As a result, the undiagnosed illness presumptive provisions of 38 U.S.C. § 1117 do not apply, other provisions of a qualifying chronic disability do not provide an exception, and the claim will be discussed on a direct basis below. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed Cir. 1994). Direct Basis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Review of the record shows the Veteran has a current respiratory disorder, diagnosed as mild restrictive lung disease during the appeal period, as noted in the November 2021 VA examination report for respiratory conditions. As a result, the Board finds the element of a current disability has been met in this case. Review of service treatment records shows that clinical evaluation of the lungs and chest was normal at the time entry to service and at the time of separation from service as noted in November 2001 and August 2011 examination reports. On the November 2001 and August 2010 Reports of Medical History, he also marked "no" for having or ever having had a history of ear, nose or throat trouble, shortness of breath, asthma, bronchitis, wheezing or problems with wheezing, been prescribed an inhaler, a chronic cough or cough at night, sinusitis, hay fever, or any breathing problems related to exercise, weather, or pollens, etc. Nevertheless, in light of the Veteran's documented foreign service in Afghanistan from June 2010 to April 2011 and in Southwest Asia from February 2003 to February 2004, October 2005 to September 2006, and October 2007 to November 2008 during his period of active service as well as documented in-service January 2007 post-deployment health reassessment noting complaint of a chronic cough with runny nose and his exposure to smoke from oil fires, smoke from burning trash or feces, vehicle or truck exhaust fumes, JP8 or other fuels, solvents, paints, industrial pollution, and sand/dust, the Board finds the element of an in-service occurrence has been met in this case. The Veteran contends that he has breathing problems due to hazardous environmental exposure during service, to include in Iraq and Afghanistan. Specifically, he contends that he was deployed to Iraq three different times and was "near/affiliated with burn pits on every single rotation" and "dealt with constant burning of feces, environmental hazards, oils, plastic, trash, paint cans and anything else that we could discard during every rotation." He asserts that he was stationed at Camp Victory and Camp Liberty which had one of the biggest burn pits in Iraq at the time. In July 2016, VA received the Veteran's submission of three articles that link military service in Iraq and Afghanistan with respiratory illnesses, to include as due to exposure to burn pits and titanium and other metals found in dust at Camp Victory in Iraq. The Veteran asserts that he was exposed to such dust at Camp Victory, that he was a burn pit attendant and burnt everything on a daily basis for 11+ months, and that he quit smoking after only two to three years so his lungs should be clean of any and all tobacco usage. The Veteran contends that, after his military career, he has suffered from shortness of breath, tightness, and overall difficulty in breathing. Additionally, the Veteran submitted three buddy statements, received in April 2017, from a friend and family members who generally attest to the Veteran having no breathing problems prior to service and then having breathing problems, including coughing fits and coughing up "stuff" or "gunk," after service. In June 2014, the Veteran was afforded a VA examination for respiratory conditions and VA medical opinion. As noted in the September 2021 Board remand, this June 2014 VA medical opinion is inadequate and the claim was remanded for the AOJ to obtain an additional VA examination and medical opinion for the Veteran's respiratory disorder. Pursuant to the September 2021 Board remand, the Veteran was provided an additional VA examination for respiratory conditions and VA medical opinion on a direct basis for respiratory disorder in November 2021. The Board finds that the most probative evidence of record demonstrates that the Veteran's current respiratory disorder is less likely than not related to active service, to include exposure to fine, particulate matter, and other exposures while in Southwest Asia. Such conclusion was provided in the November 2021 VA medical opinion based on review of the claims file and accurate factual history. The VA examiner's opinion is well-reasoned and highly persuasive evidence against the Veteran's claim because provided alternative causes for the current respiratory disorder and specifically conceded the November 2011 entrance examination report was positive for seasonal allergy with nasal congestion during spring and fall period for about 2-3 days and the Veteran's stated exposures on the in January 2007 post-deployment health assessment fir paint, industrial pollutants, sand/dust, DEET insect repellant applied to skin, pesticide treated uniforms, smoke from oil fire, smoke from burning trash or feces, vehicle, or truck exhaust fumes, JP8 or other fuel, and solvents. The VA examiner further explained the following: Veteran states in his statements on that during his deployment, he had an exposure events that led to his respiratory condition. In my own medical opinion, there is no medical reason to accept the contentions because restrictive lung diseases are a heterogeneous set of pulmonary disorders defined by restrictive patterns of spirometry. Restrictive lung diseases are characterized by reduced lung volumes, either because of an alteration in lung parenchyma or because of a disease of the pleura, chest wall, or neuromuscular apparatus. The Board acknowledges the previously cited news and internet articles submitted by the Veteran and received by VA in July 2016 that link military service in Iraq and Afghanistan with respiratory illnesses, to include as due to exposure to burn pits and titanium and other metals found in dust at Camp Victory in Iraq. Nevertheless, none of these articles are accompanied by any corresponding clinical evidence specific to the Veteran, and does not suggest a generic relationship between his mild restrictive lung disease and his in-service exposure to fine, particulate matter, and other exposures while in Southwest Asia with a degree of certainty such that, under the facts of this specific case, reflects plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Consequently, such articles are afforded no probative weight. Wallin v. West, 11 Vet. App. 509, 514 (1998); Sacks v. West, 11 Vet. App. 314, 317 (1998). In sum, the Board gives more weight to the November 2021 VA examiner's opinion rendered by a trained physician who addressed the Veteran's lay contentions and explained why his current respiratory disorder is not due to service. The VA examiner's explanation is highly persuasive. The Board finds that the third criterion to establish service connection on a direct basis has not been met. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Secondary Basis Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). As previously noted, the element of a current disability has been met in this case. Additionally, service connection for PTSD with depressive disorder and anxiety disorder was granted in in the July 2014 VA rating decision. This service-connected disability was recharacterized as PTSD in the May 2015 VA rating decision, as PTSD with associated alcohol abuse disorder and TBI in the November 2016 VA rating decision, and as PTSD with TBI in the August 2020 VA rating decision. As a result, the element of a service-connected disability has also been met in this case. Review of the June 2014 VA medical opinion reflects the VA examiner associated the Veteran's complaints of shortness of breath and mild Pulmonary Function Test (PFT) findings on "other" causes, such as PTSD and anxiety disorder. As a result, the Board remanded this claim for additional evidentiary development on a secondary basis. Pursuant to the September 2021 Board remand, the Veteran was provided an additional VA examination for respiratory conditions and VA medical opinion on a secondary basis for respiratory disorder in November 2021. The Board finds that the most probative evidence of record demonstrates that the Veteran's current respiratory disorder is less likely than not caused or aggravated by his service-connected PTSD with TBI. Such conclusion was provided in the November 2021 VA medical opinion based on review of the claims file and accurate factual history. The VA examiner's opinion is well-reasoned and highly persuasive evidence against the Veteran's claim because provided alternative causes for the current respiratory disorder, as discussed above, and alternative reason for the progression of his respiratory disorder. The VA examiner explained the following regarding causation: Restrictive lung diseases are a heterogeneous set of pulmonary disorders defined by restrictive patterns on spirometry. Restrictive lung diseases are characterized by reduced lung volumes, either because of an alteration in lung parenchyma or because of a disease of the pleura, chest wall, or neuromuscular apparatus. The examiner explained the following regarding aggravation: [The V]eteran is currently experiencing mild restrictive lung condition with shortness of breath, mild pleuritic chest pain, [and] these signs and symptoms are consistent with natural progression of the condition. In sum, the Board gives more weight to the November 2021 VA examiner's opinion rendered by a trained physician who addressed the Veteran's contentions and explained why the Veteran's current respiratory disorder is not caused or aggravated by the service-connected PTSD with TBI. The VA examiner's explanation is highly persuasive. The Board finds that the third criterion to establish service connection on a secondary basis has not been met. See 38 C.F.R. § 3.310. Secondary Service Connection Via Obesity Obesity is not a condition that can be service-connected. However, secondary service connection can be established via obesity as an intermediate step between a service-connected disability and the claimed disability. In this case, the record simply reflects references to obesity, documentation of his weight, and notations that he was offered weight management counseling, without indicating that it is caused or aggravated by any service-connected disability. This is insufficient to reasonably raise the theory of secondary service connection as an intermediate step. Garner v. Tran, 33 Vet. App. 241 (2021). The VA treatment records show that he was advised to exercise, but does not show that any disabilities interfere with his ability to engage in physical activity. Additionally, the Veteran has not asserted that any of his service-connected disabilities caused or aggravated his obesity. Secondary service connection via obesity as an intermediate step between a service-connected disability and his restrictive lung disease is not warranted. Conclusion For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for respiratory disorder is warranted on direct or secondary bases. Rather, the evidence persuasively weighs against the findings of a nexus between the current respiratory disorder and in-service occurrences, to include exposure to fine, particulate matter, and other exposures while in Southwest Asia, as well as a nexus between the current respiratory disorder and service-connected PTSD with TBI. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, F.4th, No. 2020-2067, 2021 U.S. App. LEXIS 37312 (Fed. Cir. Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). REASONS FOR REMAND Entitlement to service connection for bilateral carpal tunnel syndrome (CTS), to include the wrist and as secondary to service-connected right shoulder disability and/or radiculopathy of the right upper extremity The Veteran is entitled to substantial compliance with the Board's remand directives. Stegall, 11 Vet. App. at 268. Second, service connection can also be established through application of statutory presumptions, including for "chronic diseases," such as other organic diseases of the nervous system including CTS, when manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). As noted in the September 2021 Board remand, the Veteran asserted in the July 2016 notice of disagreement that his CTS pain stated during active service in 2009-2010 and gets worse on a daily basis since service, and review of service treatment records shows complaints of intermittent right wrist pain after push-ups in August 2011 Report of Medical History and concerns of left wrist hurting in July 2011 Report of Medical Assessment. Review of the claims file also shows the Veteran informed the May 2016 VA examiner that he had left hand numbness and tingling in 2012 and was given a brace to wear, which is approximately within one year after separation from active service. He also informed the November 2021 VA examiner that his bilateral CTS started during active service in 2010. Pursuant to the September 2021 Board remand, the Veteran was afforded an additional VA examination for peripheral nerves conditions and VA medical opinion on direct and secondary bases in November 2021. Following the clinical evaluation and review of the claims file, the VA examiner's opinions failed to take into consideration the Veteran's competent assertions regarding the onset of his pain in the wrists/hands during and since separation from active service. When VA undertakes to provide a VA medical opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, the Board finds that an additional VA medical opinion is needed to clarify the etiology of the Veteran's current bilateral CTS pursuant to VA regulations regarding chronic diseases. Also, as previously mentioned, the Veteran reported at the May 2016 VA examination for peripheral nerves conditions that he had left hand numbness and tingling in 2012 and was given a brace to wear, which is approximately within one year after separation from active service. As of this date, the Veteran has not submitted any private treatment records relevant to his bilateral CTS dated in 2012 nor has any attempt been made by VA to obtain any outstanding private treatment records from this identified facility and/or provider. As such, a remand is also needed to obtain these identified records in order to properly adjudicate this claim on appeal. The matter is REMANDED for the following actions: 1. Obtain and associate with the claims file all outstanding VA treatment records dated since May 2020. If these records cannot be located, it must specifically document the attempts that were made to locate them and the Veteran must be notified. 2. Contact the Veteran and request that he identify any private treatment facilities or providers relevant to his bilateral CTS, including who issued the brace for his left hand numbness and tingling in 2012 as noted in the May 2016 VA examination report, and provide him with the appropriate release forms. Then, make appropriate efforts to obtain any outstanding records so authorized for release from any facility and/or provider identified by the Veteran. If these records cannot be located, the AOJ must specifically document the attempts that were made to locate them and the Veteran must be notified. 3. Then, return the Veteran's claims file to the VA examiner that conducted the November 2021 VA examination for peripheral nerves conditions and provided the November 2021 VA medical opinion in order to obtain a supplemental opinion. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. A new examination is only required if deemed necessary by the examiner. The examiner must provide an opinion as to whether the Veteran's bilateral CTS began during active service or if symptoms of CTS began within one year after discharge from active service in September 2011. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Then, review all examination reports and medical opinions provided to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures. 5. Then, readjudicate the claim. If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Carter, 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.