Citation Nr: 22019563 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 19-35 930 DATE: April 1, 2022 ORDER Entitlement to service connection for acquired psychiatric disorder, diagnosed as depressive disorder, is granted. Entitlement to service connection for a disability manifested by fatigue, due to an undiagnosed illness, is granted. Entitlement to service connection for a disability manifested by headaches, due to an undiagnosed illness, is granted. Entitlement to service connection for asthma on a presumptive basis as due to exposure to particulate matter is granted. Entitlement to service connection for upper respiratory disability is denied. REMANDED Entitlement to service connection for sleep apnea. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's depressive disorder is related to active duty service. 2. The Veteran served in Southwest Asia during the Persian Gulf War. 3. The evidence is at least evenly balanced as to whether the Veteran's fatigue is due to an undiagnosed illness and manifested during active duty in the Southwest Asia Theater of Operations during the Persian Gulf War. 4. The evidence is at least evenly balanced as to whether the Veteran's headaches are due to an undiagnosed illness and manifested during active duty in the Southwest Asia Theater of Operations during the Persian Gulf War. 5. The Veteran is presumed exposed to fine, particulate matter during service in Southwest Asia during the Persian Gulf War. 6. The Veteran's asthma became manifest to a degree within 10 years from his date of separation from active duty service in Southwest Asia. 7. The evidence of record indicates that the Veteran has not had upper respiratory disability or related symptoms causing impairment in earning capacity during the pendency of his claim and does not have signs or symptoms involving the upper respiratory system due to undiagnosed illness or medically unexplained chronic multisymptom illness. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for acquired psychiatric disorder, diagnosed as depressive disorder, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for disability manifested by fatigue, due to an undiagnosed illness, are met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for disability manifested by headaches, due to an undiagnosed illness, are met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. 4. The criteria for service connection for asthma are met on a presumptive basis as due to exposure to particulate matter in Southwest Asia during the Persian Gulf War. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.2(i), 3.102, 3.303, 3.317(e)(2), 3.320. 5. The criteria for service connection for upper respiratory disability are not 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 July 1989 to July 1993. His DD Form 214 noted that he received the Southwest Asia Service Medal, and his military personnel record reflects that he served on active duty on the USS Gridley from October 1990 to July 1993 and served during Operation Desert Storm. This is sufficient evidence of record to conclude that the Veteran qualifies as a Persian Gulf veteran within the meaning of the applicable statute and regulation. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. These matters come before the Board of Veterans' Appeals (Board) from a March 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claims of service connection for asthma (also claimed as lower respiratory condition), depression (also claimed as anxiety and nightmares), fatigue, migraines, and upper respiratory condition. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a December 2021 videoconference hearing. A transcript of that hearing is of record. In Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009), the Court held that a claim should not be limited to the disorder as characterized by the veteran but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim. In other words, the Board will broaden the Veteran's claim and consider all psychiatric diagnoses raised by the record. Service connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space 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 injury or disease; and (3) a relationship between the two. 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 service when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). Entitlement to service connection for acquired psychiatric disorder The Veteran contends his acquired psychiatric disorder is due to incidents in service where he landed in a safety net after being thrown overboard by helicopters attempting to land onboard his ship. In a June 2019 VA treatment note, a VA psychiatrist diagnosed the Veteran with depressive disorder. The VA psychiatrist noted that the Veteran reported struggling with depression and anxiety since separating from the military. He indicated that the Veteran served in Operation Desert Storm and experienced a history of severe mood swings, anger outbursts, road rage, and punching the wall in anger. During his September 2021 Board testimony, the Veteran testified that his depression symptoms began shortly after separation from service. For the following reasons, entitlement to service connection for acquired psychiatric disorder, diagnosed as depressive disorder, is warranted. In June 2019, a VA psychiatrist diagnosed the Veteran with depressive disorder. Given the above noted diagnosis, the Veteran has met the current disability element of the claim. Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020); Cohen v. Brown, 10 Vet. App. 128, 139, 140 (1997) (mental health professionals "are presumed to know the DSM requirements applicable to their practice and to have taken them into account in providing" a psychiatric diagnosis). The Board gives some probative weight to the June 2019 VA treatment note from the VA psychiatrist diagnosing the Veteran with depressive disorder and noting the Veteran's report that his acquired psychiatric disorder symptoms began after his separation from the military. The VA psychiatrist who diagnosed the Veteran's depressive disorder listed the reported history of the Veteran, his history of continuous symptoms, and implicitly based the diagnosis on the aforementioned history, which is credible and consistent with the Veteran's circumstances of service and his lay statements throughout the appeal period. The Board considers this an implicit nexus opinion based on the context of the Veteran's evidence of record. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). This is the only nexus opinion of record. Furthermore, given that there is nothing to explicitly contradict the Veteran's consistent reports of continuous psychiatric symptoms since separation from service, they are competent and credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a veteran is competent to testify regarding continuous pain since service, and lay evidence, when credible, is competent to establish the presence of continuous symptoms for a claimed disability during and since separation from military service); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). At this point, the Board could remand the claim for a VA examination or opinion. However, a request for an opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216, 225 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's current depressive disorder is related to active duty service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for an acquired psychiatric disorder, diagnosed as depressive disorder, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Given that there is no indication that there are psychiatric symptoms clearly attributable to psychiatric disorders other than depressive disorder, for which service connection is being granted, further discussion of any other psychiatric disorder is unnecessary. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when it is not possible to separate the effects of the service-connected and non-service-connected disabilities, the benefit of the doubt doctrine described in 38 C.F.R. § 3.102 dictates that such signs and symptoms be attributed to the service-connected disability or disabilities). Entitlement to service connection for disabilities manifested by fatigue and headaches, as due to an undiagnosed illness The Veteran contends that his fatigue and headaches began shortly after separation. Under 38 U.S.C. § 1117(a)(1), compensation is warranted for a Persian Gulf veteran who exhibits objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. The presumptive period was most recently extended to December 31, 2026. Interim Final Rule, Extension of the Presumptive Period for Compensation for Persian Gulf War Veterans, 86 Fed. Reg. 51000 (Sept. 14, 2021). Furthermore, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. 38 C.F.R. § 3.317(a)(ii). Congress revised 38 U.S.C. § 1117, effective March 1, 2002. In the revised statute, the term "chronic disability" was changed to "qualifying chronic disability," and the definition of "qualifying chronic disability" was expanded to include (a) undiagnosed illness; (b) a medically unexplained chronic multi-symptom illness (including, but not limited to, chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders) that is defined by a cluster of signs or symptoms; or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. Effective June 10, 2003, VA promulgated revised regulations to, in part, implement these statutory changes. 38 C.F.R. § 3.317(a)(2). For purposes of Gulf War undiagnosed illness claims, 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. 38 C.F.R. § 3.317(a)(2)(5). To determine whether the qualifying chronic disability is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location, or symptomatology are similar. 38 C.F.R. § 3.317(a)(5); Stankevich v. Nicholson, 19 Vet. App. 470 (2006). In the case of claims based on undiagnosed illness or a medically unexplained chronic multi-symptom 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. 38 U.S.C. § 1117; 38 C.F.R. § 3.317; Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). The Veteran credibly testified at his Board hearing in December 2021 that he did not have issues with fatigue or headaches prior to his deployment to Southwest Asia but began to manifest symptoms of fatigue and headaches shortly after he separated from service and has experienced those symptoms since separation from service. For the following reasons, service connection for disabilities manifested by fatigue and headaches, due to undiagnosed illness, is warranted. First, the Veteran qualifies as a Persian Gulf veteran and currently experiences fatigue and headaches, which are both specifically listed as a sign or symptom of undiagnosed illness. 38 C.F.R. § 3.317(b)(1). The Veteran's fatigue is different than the chronic fatigue syndrome referenced as an example of a medically explained chronic multisymptom illness. While the Veteran reported during his December 2021 hearing that he was diagnosed with migraines, the evidence of record, specifically multiple VA treatment records, indicated that he reported headaches and did not note a diagnosis of migraines. In addition, the Veteran has consistently indicated that such fatigue and headaches have persisted since service, and therefore, have persisted more than six months. Gutierrez, 19 Vet. App. at 8-9 (lay persons are competent to report objective signs of illness). Moreover, the evidence of record shows that the Veteran's fatigue and headaches have not been attributed to known clinical diagnoses and became manifest during the Veteran's service in the Persian Gulf War. Specifically, the Veteran credibly testified before the Board in December 2021 that his symptoms of fatigue and headaches began shortly after his separation from service. Therefore, it is reasonable to conclude that his fatigue and headaches manifested during his service in Southwest Asia. For the above reasons, the evidence is at least evenly balanced as to whether the Veteran's disabilities manifested by fatigue and headache are due to an undiagnosed illness. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for disabilities manifested by fatigue and headaches, due to undiagnosed illness, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for asthma Pursuant to 38 C.F.R. § 3.320(a)(1), service connection is warranted for asthma for veterans who served in the Southwest Theater of Operations during the Persian Gulf War if it becomes manifest to any degree within 10 years from separation from service. As noted previously, the Veteran is a Persian Gulf veteran within the meaning of the applicable statute and regulation. The Veteran is therefore presumed exposed to fine, particulate matter during such service, and there is no affirmative evidence reflecting that he was not exposed to fine, particulate matter during such service. In March 2018, a VA examiner found that the Veteran's asthma was less likely than not related to service as his asthma diagnosis was given 20 years after separation from service. The examiner reasoned that service treatment records did not show treatment for or diagnosis of asthma while on active duty, and the Veteran was not diagnosed with asthma within one year of discharge. Moreover, there was no record of chronicity of respiratory complaints or diagnoses in the 20 years following separation from service. During his December 2021 Board hearing, the Veteran testified credibly that his breathing difficulties began a few years after separation from service. For the following reasons, entitlement to service connection for asthma on a presumptive basis due to exposure to particulate matter is warranted. The Veteran is competent to report his history of breathing problems since separation from service. Jandreau, 492 F.3d at 1377 n.4. There is no evidence conflicting with the Veteran's report that he experienced respiratory symptoms shortly after his separation from service. Therefore, the Veteran's reports are competent and credible in showing continuous respiratory symptoms since separation from service. VA treatment records show the Veteran was diagnosed with asthma in December 2017. While this diagnosis was more than 10 years after service, the date of diagnosis is not dispositive. The issue here is whether the Veteran's asthma manifested to any degree within 10 years after separation from service, and symptoms within 10 years after separation from service that were subsequently determined to be early manifestations of asthma would warrant the conclusion that the Veteran's asthma manifested within 10 years after separation from service. Traut v. Brown, 6 Vet. App. 495 (1994) (establishing service connection on a presumptive basis does not require that a chronic disease be diagnosed within the applicable time period; rather, symptoms that manifest within this time period may subsequently be determined to have been early manifestations of a chronic disease). The diagnosis of asthma was based in part on symptoms of shortness of breath, as noted in a November 2017 VA treatment record, and there is competent, credible evidence that the Veteran had this symptom since service. Therefore, the Veteran's asthma manifested within 10 years after separation from service. A qualifying disease will not be presumed service-connected if there is affirmative evidence that (1) the disease was not incurred during or aggravated by a qualifying period of service; or (2) the disease was caused by a supervening condition or event that occurred between the veteran's most recent departure from a qualifying period of service and the onset of the disease; or (3) the disease is the result of the veteran's own willful misconduct. Willful misconduct means an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of, or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n)(1). There is no affirmative evidence that the disease was not incurred in service. Moreover, the March 2018 negative nexus opinion was made without knowledge of the presumption and the studies underlying it and therefore is not probative and cannot overcome the presumption. There is also no affirmative evidence that the disease was caused by a supervening condition or event or is the result of the Veteran's willful misconduct. The Board could remand the claim for another medical opinion, but a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews, 34 Vet. App. at 225. As the Veteran's asthma manifested to a degree within 10 years of his qualifying period of service in Southwest Asia during the Persian Gulf War, and he is presumed to have been exposed to particulate matter based on his service in Southwest Asia during the Persian Gulf War, entitlement to service connection for asthma is warranted on a presumptive basis due to exposure to particulate matter. Entitlement to service connection for upper respiratory disability The Veteran's service treatment records do not note any diagnosis, treatment for, or complaints of upper respiratory disability. The Veteran's September 1996 separation examination noted a finding of rales (rattling sound heard when examining the lungs) that the military physician noted as viral bronchitis. Otherwise, the Veteran's clinical evaluation of the lungs and chest during separation was normal. Post-service treatment records do not note any diagnosis, treatment for, or complaints of upper respiratory disability at any time during the pendency of the claim, and the evidence of record does not indicate the Veteran is currently suffering from upper respiratory disability, or any related disabilities or symptoms. In particular, in March 2018, a VA examiner found that the Veteran did not have a current upper respiratory disability and that the viral bronchitis noted at separation was self-limiting. The examiner additionally reasoned that the Veteran's asthma is a lower respiratory disease, and there was no upper respiratory diagnosis. For the following reasons, considering the evidence of record under the laws and regulations as set forth above, the Veteran is not entitled to service connection for upper respiratory disability. In determining whether the current disability requirement has been met, the Board must consider the entire claim period and the period preceding it. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim) and whether there have been symptoms causing impairment in earning capacity or a different but related disorder diagnosed during this period. Saunders, 886 F.3d at 1364-65 (pain alone can constitute disability under 38 U.S.C. § 1131); Clemons, 23 Vet. App. at 4-5. The evidence of record reflects that the Veteran does not have and has not had at any time during the pendency of the claim or approximate thereto, upper respiratory disability or any related disabilities or symptoms that cause impairment in earning capacity. There is no evidence in the Veteran's service treatment records, other than the September 1996 separation examination noting viral bronchitis, or post-service treatment records of any signs, notations, or diagnosis of upper respiratory disability or related disabilities or symptoms. Moreover, the evidence of record does not reflect upper respiratory disability, or related disabilities or symptoms that cause impairment in earning capacity, or that are related to or may be associated with service, to include the viral bronchitis in September 1996. The March 2018 VA opinion that there was the Veteran did not have an upper respiratory disability has some probative weight as the examiner explained the reasons for the conclusions based on an accurate characterization of the evidence of record. Nieves-Rodriguez, 22 Vet. App. at 304; Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Signs or symptoms involving the upper respiratory system due to undiagnosed illness or medically unexplained chronic multisymptom illness may be compensated under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 for a veteran who served in the Southwest Asia theater of operations during the Persian Gulf War. As noted previously, for Persian Gulf war veterans who exhibit objective manifestations of a qualifying chronic disability, 38 U.S.C. § 1117 provides for presumptive service connection when the disability manifests "during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War" or to a degree of 10 percent or more before December 31, 2021, and which, "[b]y history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnoses." 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1)(i), (ii). A "qualifying chronic disability" may be one that results from an "undiagnosed illness" or a "medically unexplained chronic multisymptom illness." 38 U.S.C. § 1117(a)(2)(A), (B); 38 C.F.R. § 3.317(a)(2)(ii). The term "medically unexplained chronic multisymptom illness" means "a diagnosed illness without conclusive pathology or etiology that is characterized by overlapping symptoms and signs." 38 C.F.R. § 3.317(a)(2)(ii). Neither the medical nor lay evidence reflects that the Veteran had upper respiratory signs or symptoms that existed for six months or more or exhibited intermittent episodes of improvement and worsening over a six-month period. Thus, the evidence does not reflect the existence of objective indications of a qualifying chronic disability. 38 C.F.R. § 3.317(a)(4). Thus, there is no evidence during the claim period or approximate thereto of any other upper respiratory disorder or upper respiratory symptoms causing impairment in earning capacity. Consequently, the Veteran has not met the requirement of showing a current disability and the claim must be denied because of the lack of this essential element. Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (38 U.S.C. § 1131 requires "a presently existing disability" to warrant compensation). For the foregoing reasons, the evidence is neither evenly balanced nor approximately so with regard to whether the Veteran has a current disability. Rather, the evidence at this time weighs persuasively against the claim of service connection for upper respiratory disability. The benefit of the doubt doctrine, 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, is therefore not for application as to the claim. Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 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 sleep apnea While the Veteran has not filed a claim of service connection for sleep apnea, the Court has indicated that such a claim can be adjudicated by the Board in somce circumstances, even in the absence of an explicit Agency of Original Jurisdiction (AOJ) adjudication. During the December 2021 Board hearing, the Veteran testified that he was diagnosed with sleep apnea and was told by a doctor that his sleep apnea and his fatigue may be related. Jandreau, 492 F.3d at 1377 (a layperson is competent to report a contemporaneous medical diagnosis). Where the disability for which a veteran seeks service connection is not directly associated with service, but information obtained during the processing of the claim reasonably indicates that the cause of the disability is a disease that may be associated with service, VA must investigate whether the causal disability is related to service to determine whether the claimed disability is related secondarily to service. DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011). If VA determines that the causal disability is, in fact, related to service, then the claim for service connection for this disability "reasonably encompasses" a claim for that causal disability, such that no additional filing is necessary to initiate a claim for service connection for the causal disability. Id. Similarly, 38 C.F.R. § 3.155(d)(2) requires that, when entitlement to secondary service connection is raised, a formal claim for secondary service connection need not be filed, rather, VA must consider those "complications" in connection with the claim on appeal). Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021). In this case, the evidence indicates that sleep apnea may be related to the now service-connected fatigue, and a remand is warranted for an opinion addressing this potential relationship. Accordingly, the matter is REMANDED for the following action: Request an opinion from an appropriate clinician to address the relationship between sleep apnea and service and sleep apnea and fatigue. The clinician should indicate whether sleep apnea is either related to or had its onset in service and whether it is caused by or aggravated by the now service-connected fatigue. If aggravation is found, the clinician should identify the baseline level of severity prior to the onset of aggravation. The claims file should be provided to and reviewed by the clinician. A complete rationale should accompany any opinion provided. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.