Citation Nr: A25035573 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240116-408494 DATE: April 17, 2025 ORDER Entitlement to service connection for bronchitis is denied. Entitlement to service connection for a respiratory or pulmonary disability to account for shortness of breath is denied. Entitlement to service connection for sinusitis is denied. FINDINGS OF FACT 1. The Veteran was exposed to fine particulate matter during his service in Afghanistan. 2. There is no competent and credible evidence of a bronchitis disability diagnosed during the pendency of the appeal, nor are there objective indications of chronic disability such as would constitute an undiagnosed illness, to account for his stated symptoms. 3. There is no diagnosed respiratory or pulmonary disability, undiagnosed illness, or diagnosed but medically unexplained chronic multisymptom illness (MUCMI), nor any competent and credible evidence of recurrent symptoms. 4. While there was acute sinusitis in service, there is no diagnosed sinusitis condition during the pendency of the appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bronchitis disability have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317; 3.320. 2. The criteria for entitlement to service connection for a respiratory or pulmonary disability to account for shortness of breath have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.317; 3.320. 3. The criteria for entitlement to service connection for sinusitis have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.317; 3.320. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2006 to March 2010. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2023 rating decision from a Department of Veteran Affairs (VA) Regional Office (RO) under the modernized appeals system known as the Appeals Modernization Act (AMA). In January 2024, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal, and requested the AMA direct docket review. Under the rules of the AMA, the Board's review is limited to the evidence associated with the claims file as of the date of the December 2023 rating decision on appeal. 38 C.F.R. § 20.301. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. Generally, service connection requires three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Sheddon v. Principi, 381 F.3d. 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In deciding the Veteran's claim, the VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether the persuasive evidence is against the claim, in which case the claim is denied. 38 U.S.S. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for a bronchitis disability. The Veteran contends that he has a bronchitis disability due to military service. Specifically, the Veteran contends that while on a 15 month deployment in Afghanistan, he was stationed at 3 forward operating bases (FOBs), where he had to burn human feces mixed with diesel fuel on a weekly basis, and that it involved burning all trash in the burn pits, to include batteries and other toxic debris. See August 2023, VA Form 526EZ. The Veteran's exposure to such toxins is conceded. As to the first element required for service connection, the Veteran must show a current disability. The Veteran was afforded a VA medical examination in October 2023 for respiratory disabilities. The examiner noted that the Veteran's medical records support an episode of acute bronchitis that has since resolved. Upon review of the Veteran's medical treatment records, a primary care note on March 22, 2018 shows the Veteran was assessed with acute bronchitis; viral versus bacterial, and that prescriptions for bactrim and prednisone were given. The comment to this primary care note was that the Veteran has bronchitis today (emphasis added). See VBMS, document labeled CAPRI, receipt date 12/13/2023, pages 118-119 of 134. The remainder of the treatment records, which span from 2010 to 2013 and from 2018 to 2023, are negative for treatment for bronchitis. As the timeline shows the Veteran's diagnosis of acute bronchitis in March 2018 and his claim for entitlement to service connection for bronchitis was submitted in August 2023, the Board finds that it is not proximate in time to the date of claim. The date of claim is too distant to the diagnosis of acute bronchitis to be a disability. In this case, the Board concludes that the Veteran does not have a current diagnosis of a bronchitis disability and has not had such a diagnosis at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303 (a), (d). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability exists. Derwinski, 3 Vet. App. 223, 225 (1992). With regard to the Persian Gulf presumption and toxic exposure related activity (TERA), the Board notes that an October 2023 VA Gulf War examiner specifically noted the Veteran's sinus complaints but found that there were no additional signs and/or symptoms that may represent an "undiagnosed illness" or "diagnosed medically unexplained chronic multi symptom illness." Furthermore, neither the Veteran's service treatment records (STRs) nor his post-service medical records show chronic subjective complaints and are negative for objective indications of the claimed disability. While the Veteran believes he has a current bronchitis disability, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education/knowledge of the interaction between multiple organ systems in the body/the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Accordingly, for the reasons stated above, the Board finds that the persuasive evidence is against the claim for service connection for a bronchitis disability. As the evidence is not in relative equipoise, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for a respiratory or pulmonary disability to account for shortness of breath. The Veteran contends that he has a respiratory or breathing condition with shortness of breath due to exposure to burn pits and other environmental hazards during his Persian Gulf service. See August 2023, VA Form 526EZ. For Veterans who had Persian Gulf War service in the Southwest Asia theater of operations, a qualifying chronic disability resulting from symptoms of an undiagnosed illness or a diagnosed but medically unexplained chronic multisymptom illness (MUCMI) may be service-connected on a presumptive basis if they manifested after such service, even if there is no other link to service. 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317. An illness is a MUCMI where either the etiology or pathophysiology of the illness is inconclusive, but not where both the etiology and pathophysiology of the illness are partially understood. Stewart v. Wilkie, 30 Vet. App. 383, 389 (2020). Additionally, in August 2022, the President signed into law the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022, Pub. L. No. 117-168, 136 Stat. 1759 (2022) (commonly known as the "Honoring Our PACT Act of 2022" or "PACT Act"). In pertinent part, this Act added presumptions for toxic exposure, to include burn pits and other toxins, for veterans who served in specific locations (38 U.S.C. § 1119); added new presumptive conditions due to in-service exposure to burn pits and other toxins (38 U.S.C. § 1120 (b)); added locations associated with service in the Persian Gulf theater (38 U.S.C. §§ 1112 (c), 1116, 1117); and eliminated the manifestation period and the degree to which a qualifying chronic disability must manifest to be presumed as due to service in the Persian Gulf (38 U.S.C. § 1117). The Act also established a lower threshold to obtain examinations or medical opinions under VA's duty to assist for veterans with presumed toxic exposures or who participated in TERA in service. 38 U.S.C. § 1168. In this case, VA memos in December 2023 identified the Veteran's Persian Gulf and toxic exposure dates from May 31, 2007 through June 11, 2007, from February 7, 2008 through February 27, 2008, and March 3, 2008 through March 3, 2008 for service in the Southwest Asia theater of operations. The Veteran is presumed to have been exposed to environmental hazards, to include burn pits and other toxins, during such service under section 3.317 and the PACT Act. Furthermore, respiratory and cardiovascular signs or symptoms may be signs and symptoms of a qualifying undiagnosed illness or MUCMI. 38 C.F.R. § 3.317 (b). At his September 2023 VA medical examination, the Veteran reported burning in his chest, a chronic cough, and wheezing. The examiner noted that diagnostic testing was performed on September 15, 2023, where chest x-ray and pulmonary function testing (PFT) were normal, and there was no acute cardio pulmonary process. The examiner found no pulmonary condition, and no acute or chronic respiratory condition. Furthermore, the examiner noted that any respiratory condition the Veteran contends to have does not impact his ability to work. With regard to the Veteran's Persian Gulf service, when asked whether the Veteran's disability pattern is an undiagnosed illness, diagnosable but medically unexplained chronic multi-symptoms illness of unknown etiology, diagnosable chronic multi-symptom illness with a partially explained etiology, or a disease with a clear and specific etiology and diagnosis, the examiner opined there is no diagnosis rendered. Importantly, VA treatment records from 2010 to 2013 and from 2018 to 2023 do not reflect a respiratory or pulmonary disability, nor complaints such as those noted in the Veteran's compensation examination. There is a single documentation on March 22, 2018 of a primary care note documenting working in an appointment with respiratory tract infection complaints, including nasal and chest congestion, sore throat, cough, and some wheezing. See VBMS, document labeled CAPRI, receipt date 12/13/2023, page 116 of 134. Otherwise, there is a January 2018 preventative medicine note, indicating the lungs were clear to auscultation with no wheezing. See Id., at page 99. Primary care notes in August and September 2021 document that the Veteran had no shortness of breath or chest pain with exertion, and that he smoked 1.5 packs of cigarettes a day. See Id., at pages 52-53 of 134. The examiner's diagnostic opinion is adequate, probative, and persuasive, as she applied medical expertise to the correct facts in this Veteran's case, and the conclusion is supported by well-reasoned rationale. There is no contrary competent opinion, as the Veteran is not competent to offer an opinion as to the complex matter of a diagnosis for his observable symptoms without medical knowledge to interpret his history and relevant testing. Thus, there is no pulmonary or respiratory diagnosis. Furthermore, apart from the Veteran's claim and his compensation examination, treatment records spanning nearly a decade are negative for the respiratory symptoms that are not associated with a single acute episode of bronchitis. This is not a matter of the lack of treatment. Rather, the Veteran has denied such symptoms in his treatment. Statements made in conjunction with seeking treatment are very credible, given that they are made with the aim to better one's health and there is incentive to be clear about what symptoms one is experiencing. The claim for a pulmonary or respiratory disorder for shortness of breath must be denied due to no current disability (diagnosed or undiagnosable) at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321. Although the Persian Gulf presumptions and the PACT Act allow for service connection for conditions without a diagnosis or diagnosed conditions with unclear etiology under certain circumstances, the competent and credible evidence is against a finding of such symptoms in this case. In summary, the evidence is not in at least relative equipoise, and there is no reasonable doubt to be resolved in the Veteran's favor. The appeal must be denied. 3. Entitlement to service connection for sinusitis. The Veteran claims he has a sinusitis disability due to military service. The December 2023 rating decision made the favorable findings that evidence shows qualifying event, injury, or disease had its onset during service, that the Veteran's STRs show treatment for sinusitis; that he was exposed to fine particulate matter during military service; that military personnel records document service in Afghanistan during the period of service from May 22, 2007 to August 20, 2008, and; participation in TERA is conceded as the Veteran's military occupational specialty (MOS) as infantryman was exposed to solvents, lubricants and fumes, and dust during service. The Board is bound by these favorable findings. Review of the STRs demonstrates that on April 3, 2006, the Veteran "still has a headache and sinus congestion," which was assessed as acute sinusitis. See VBMS, document labeled STR- Medical- Photocopy, receipt date 2/15/2011, pages 46-47 of 106. The remainder of the records are silent for treatment of sinusitis. Notably, under 38 C.F.R. § 3.320, a Veteran is presumed to have been exposed to fine particulate matter based on their service in particular areas during particular times (e.g., as the Veteran is, based on his service in Afghanistan on or after September 19, 2001). In such circumstances, sinusitis shall be service connected even though there is no evidence of such disease during the period of military service. However, a diagnosis of the disability is required for a grant of service connection. In this case, the Veteran has not been found to have a current, on-going disability of sinusitis. The Veteran was afforded a VA medical examination in September 2023. At that time, the Veteran was noted to have previously had acute sinusitis that had resolved. He reported that twice a year, in October and March, he will have sinusitis flare ups requiring over the counter allergy medication use. The examiner found no active sinus problems. Pulmonary function testing was conducted in conjunction with the examination, and was found to be within normal limits. Review of the Veteran's post-service treatment records at VA, dated between 2010 to 2013, document no instances of sinusitis. A September 2010 primary care note catalogs the Veteran's prior medical history and found it was negative for ear, nose, and throat issues, to include chronic sinusitis. Surgical history was also negative for sinus issues. In a December 2010 general medical compensation examination for a different claim, it was noted that the Veteran's nose was normal, without obstruction, deviation, or polyps. Sinuses were nontender, with no crusting or purulent discharge. VA treatment records from January 2018 to December 2023 demonstrate no complaints or treatment for sinusitis. A September 2023 primary care note documents a review of symptoms, noting no persistent sinus conditions. On this evidence, the Board finds that the Veteran has not had sinusitis during the pendency of the appeal, such that the presumption for service connection may be applied. Likewise, without a current disability, the claim for service connection must fail. Although the Veteran asserts he has sinusitis, such a disability requires medical expertise to diagnose. The Board finds the medical evidence of record more probative. As such, service connection for sinusitis under any theory is not warranted. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Smith, 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.