Citation Nr: A25001237 Decision Date: 01/07/25 Archive Date: 01/07/25 DOCKET NO. 230502-344314 DATE: January 7, 2025 ORDER Entitlement to service connection for a respiratory disorder as a manifestation of an undiagnosed illness due to service in the Persian Gulf is granted. FINDING OF FACT The Veteran's respiratory disorder is a chronic undiagnosed illness manifested by respiratory symptoms associated with his qualifying service in the Southwest Asia theater of operations during the Persian Gulf War. CONCLUSION OF LAW The criteria for service connection for a respiratory disorder as a chronic undiagnosed illness manifested by respiratory symptoms associated with qualifying service in the Southwest Asia theater of operations during the Persian Gulf War have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from August 1990 to May 1994, May 1997 to May 2005, and January 2011 to March 2015. The Veteran also served in the United States Army Reserve and Army National Guard. The matter is on appeal to the Board of Veterans' Appeals (Board) from an April 2023 rating decision issued by a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). Thus, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the May 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the April 2023 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Entitlement to service connection for a respiratory disorder as a manifestation of an undiagnosed illness due to service in the Persian Gulf is granted. The Veteran contends that he has interstitial pulmonary fibrosis due to his service in Iraq and Afghanistan. See February 2023 VA 21-526EZ. Specifically, the Veteran contends that his service in Iraq in 2003 with the "101st Airborne Division at an airfield in close proximity to a large [sulfur] mine fire that ignited in June of that year at the Mishraq State Sulfur Mine Plant near Mosul, Iraq," expelled large amounts of sulfur dioxide in the air which was "immediately dangerous to health and life." Id. As a preliminary matter, the Board notes that it has re-characterized the Veteran's claim of entitlement to service connection for interstitial pulmonary fibrosis to a claim of entitlement to service connection for a chronic undiagnosed illness. This is based on the private medical evidence submitted by the Veteran indicating symptoms of a respiratory condition, such as an obstructive lung defect and mild bilateral dependent subsegmental atelectasis, and the lack of a specific diagnosis in the record evidence of interstitial pulmonary fibrosis. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (holding that when a claimant makes a claim, the claimant is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially 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). Additionally, VA shall pay compensation to a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in § 3.317(b) (except as provided in § 3.317(c)), provided that such disability: (i) became manifest either during active military, naval, or air 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 (ii) 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 Persian Gulf veteran is defined as 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(e)(1). The Southwest Asia theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. Id. § 3.317(e)(2). The period of the Persian Gulf War is from August 2, 1990, through the present. See 38 C.F.R. § 3.2(i). Additionally, for veterans diagnosed with an infectious disease as defined in 38 C.F.R. § 3.317(c)(2), the qualifying period of service also includes active military, naval, or air service in Afghanistan on or after September 19, 2001. 38 C.F.R. § 3.317(c)(3)(ii). Signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: (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). 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)(3). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-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). Here, the AOJ conceded that the Veteran "performed service in [the] Southwest Asia theater of operations." April 2023 Rating Decision. This included "service in Iraq and Afghanistan," wherein the Veteran was "exposed to environmental hazards during military service" such as "burn pits and other toxins, including fine particulate matter." The AOJ's determinations in this regard are favorable findings. See 38 C.F.R. § 20.801. Under the AMA, the Board is bound by favorable findings made by the AOJ. 38 C.F.R. § 3.104 (c). Thus, the Board turns now to an examination of the relevant evidence. In evaluating that evidence, the Board has been charged with the duty to assess its credibility and weight. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for a medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008). Looking first at service treatment records, a February 1994 examination noted the Veteran's lungs as clear with "no hilar or mediastinal masses." February 1994 Radiologic Examination Report. However, after a deployment to the Southwest Asia theater of operations, the Veteran reported burning of throat, sinuses, and a skin rash after sulfur smoke exposure. See February 2004 DD Form 2796 Post Deployment. In that same report, the Veteran noted no current breathing difficulty. Id. Subsequently, the Veteran reported a respiratory infection in January 2005. See January 2005 Chronological Record of Medical Care. In an examination the following year, the Veteran noted that he "had bronchitis 3 or 4 times" during service, with the most recent being in February 2005. See January 2006 Report of Medical History. The Veteran's service treatment records subsequently provide additional context and further corroboration of the 2005 bronchitis diagnosis and treatment. Specifically, the Veteran reported that the diagnosis occurred while he was deployed to Ft. Polk, Louisiana. See May 2006 Report of Medical History. The Veteran again referenced his bronchitis diagnosis in February 2005, which he reported was treated by a battalion flight surgeon. See July 2010 Report of Medical History. Moreover, the Veteran reported again that he suffered "[b]ronchitis during JRTC Rotation" in 2005 and was prescribed antibiotics and subsequently returned to duty. See August 2011 Report of Medical History. In March 2014, the Veteran was provided a radiology examination that produced "unenhanced axial 3 mm imaging," in which the examiner remarked, "the visualized lung fields are clear without nodules, pneumothoraxor effusion," but noted that "[t]here is mild bilateral dependent subsegmental atelectasis." March 2014 Radiology Report. Subsequently, in a private medical opinion, the Veteran's physician opined that the Veteran had a "minimal obstructive lung defect," wherein the "airway obstruction is confirmed by the decrease in flow rate at peak flow and flow at 25% and 75% of the flow volume curve." December 2014 Private Respiratory Therapist Report. The Veteran was then provided a VA examination in December 2014. In the examination, the examiner noted that while the Veteran had a clear auscultation of the lungs, it was noted that there was "a 6mm nodular opacity in the right mid lung, and 2 small clusters of nodular opacity in the left lung." December 2014 Respiratory Conditions C&P Examination. The examiner noted the Veteran's contention that he suffered from "bronchitis in 2005," as well as his "reports that he was stationed in Iraq a year prior, and he was exposed to fumes from a sulfur mine fire" and that he subsequently is "winded more so than . . . prior to" deployment, as well as the Veteran's "reports of chest tightness" since the deployment and bronchitis diagnosis and a lack of "wheezing." Id. Nevertheless, the examiner opined that "[t]here is no objective evidence to support the [Veteran's] claimed condition at this time." Id. In a radiology report that same month, a "6mm nodular opacity in the right middle lung [was] noted on routine chest xray at VA," as well as "2 small clusters of nodular opacities in the left lung." December 2014 Radiology Report. The Veteran was noted as having a history of "[n]odular density in the right middle lung" and the examiner noted the presence of "coronal and sagittal reconstruction 3 mm images . . . and several small calcified lymph nodes or granulomas . . . at the right hilus," as well as "[a] 5 mm calcified granuloma . . . at the pleura of the right midlung field" which "indicates the structure is benign, and it is well-defined with no adjacent inflammatory process." Id. The Veteran's lungs were noted as "otherwise clear of nodularity or fibronodular interstitial disease as was previously discussed in the left lung," his upper abdomen was deemed "essentially unremarkable" with a "[b]enign right midlung field peripheral calcified nodule." Id. The examiner then recommended the Veteran undergo a CT scan. See id. In February 2015, the Veteran underwent a private examination, in which his physician opined that the Veteran had a "complete calcified sub-centimeter nodule most likely from prior granulomatous infection such as MTB [mycobacterium tuberculosis] from military deployment with borderline reactive ppd in 2004 or Histo infection from growing up on a farm in Maryland." February 2015 Private Medical Opinion. The Veteran was further noted as having a "partially calcified right hilar LN," a history of bronchitis, and a "mild bilateral dependent subsegmental atelectasis." Id. Moreover, subsequent VA-provided examinations were roughly consistent with this history, though they did not opine as to etiology. Specifically, in a May 2017 annual examination the Veteran was noted as having "[n]o dyspnea, no paroxysmal nocturnal dyspnea, no orthopnea, no cough, no pink and frothy sputum which is not clear/white and frothy." May 2017 Annual Health Screen. An October 2018 VA examination further noted that the Veteran's "visualized lung fields are clear without nodules, pneumothorax or effusion," but noted "mild bilateral dependent subsegmental atelectasis." See October 2018 C&P Liver Conditions Examination. However, in a March 2023 VA examination, the examiner noted that the Veteran did not currently, nor had he ever been diagnosed with a respiratory condition. March 2023 C&P Examination. The examiner noted the Veteran's contentions that he "noticed over the years he's had bronchitis and shortness of breath" as well as "issues with running and becoming short of breath" which "started after being in Iraq in 2003-2004" where he was "stationed near burn pits." Id. The examiner further noted the Veteran's contention that he "noticed [a] large sulfur mine near base in Iraq" and that the "Veteran had xray and ct scan in March 2014 and pulmonary nodules were found" and that the "Veteran claims he continues to have intermittent shortness of breath" and that he "notices he has to take deep breath." Id. The examiner further noted that the Veteran had "a 6 mm nodular opacity in [the] right mid lung" and "2 small clusters of nodular [opacities] in the . . . lung." Id. The examiner then opined that no diagnosis of a pulmonary condition was warranted as the Veteran's pulmonary function test results were normal. See id. Nonetheless, the examiner opined that a further chest CT was recommended. See id. Thus, on the question of service-connection, there are probative medical opinions in favor of and against the claim. Accordingly, upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current respiratory disorder is a manifestation of a chronic undiagnosed illness due to service in the Persian Gulf. The respiratory symptoms detailed above, inclusive of repeated bouts of bronchitis, nodular opacities of the lungs, intermittent shortness of breath, mild bilateral dependent subsegmental atelectasis, calcified nodules, calcified granuloma, reports of chest tightness, and a minimal obstructive lung defect, as well as a lack of a diagnosed respiratory condition, is indicative of a chronic undiagnosed illness manifested by respiratory symptoms associated with his qualifying service in the Southwest Asia theater of operations during the Persian Gulf War. As such, the Veteran is entitled to a presumption of service connection. The Board notes that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that the Veteran's respiratory condition is a chronic undiagnosed illness manifested by respiratory symptoms associated with his qualifying service in the Southwest Asia theater of operations during the Persian Gulf War. (Continued on the next page) ? Consequently, entitlement to service connection for the Veteran's respiratory disorder is granted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C.W. Hall, 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.