Case 1725125

MICHELLE L. KANE · 2017 · Case ID: 1725125

DENIED

Summary

The Veteran, who served in the Persian Gulf from October 1990 to August 1991 and July 1992 to March 1993, appeals the denial of service connection for a respiratory condition, chest pains, and a joint disorder, all claimed as due to service in Southwest Asia and/or exposure to hazardous materials. The Board found that new and material evidence was submitted, reopening the claims. However, after reviewing the evidence, the Board concluded that the criteria for service connection were not met for any of the claimed conditions. For respiratory conditions, including obstructive sleep apnea and allergic rhinitis, the Board found the negative opinions of VA examiners more probative than favorable opinions, citing a lack of specific links to the Veteran's diagnosed conditions and the onset of symptoms years after service. Similarly, for chest pains (costochondritis and diaphragm strain), the Board found the VA examiner's negative opinion, based on literature review, more persuasive than favorable opinions that lacked specific rationale. For joint disorders, including right shoulder arthritis, right elbow olecranon spur, and bilateral knee conditions, the Board found the greater weight of the evidence against service connection, noting the lack of continuity of symptomatology for the shoulder, the absence of nexus for the elbow, and the limited probative value of favorable opinions for the knees due to lack of rationale and delayed onset. The Board denied service connection for all claimed conditions.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

12-30 658A

Full Decision Text

Citation Nr: 1725125
Decision Date: 06/30/17 Archive Date: 07/10/17

DOCKET NO. 12-30 658A ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUES

1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a respiratory condition, to include as due to service in Southwest Asia and/or exposure to hazardous materials.

2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for chest pains, to include as due to service in Southwest Asia and/or exposure to hazardous materials.

3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a joint disorder, to include as due to service in Southwest Asia and/or exposure to hazardous materials.

4. Entitlement to service connection for a respiratory condition, to include as due to service in Southwest Asia and/or exposure to hazardous materials.

5. Entitlement to service connection for chest pains, to include as due to service in Southwest Asia and/or exposure to hazardous materials.

6. Entitlement to service connection for a joint disorder, to include as due to service in Southwest Asia and/or exposure to hazardous materials.

REPRESENTATION

Appellant represented by: The American Legion

WITNESSES AT HEARINGS ON APPEAL

The Veteran and G.C.

ATTORNEY FOR THE BOARD

K. Hubers, Associate Counsel

INTRODUCTION

The Veteran served on active duty from October 1990 to August 1991 and from July 1992 to March 1993.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The Veteran testified before the undersigned at hearing held in January 2017 via videoconference. He also had a hearing before a Decision Review Officer in 2012. The record contains transcripts of the hearings.

The record was held open following the 2017 Board hearing to allow the Veteran to submit additional evidence, which he did in February 2017. Although evidence has been received subsequent to the final consideration of the claims by the RO, the Veteran waived RO consideration of that evidence. See February 2017 statement. The Board may consider the appeal. See 38 C.F.R. § 20.1304(c) (2016).

FINDINGS OF FACT

1. In January 1992, the RO denied entitlement to service connection for residuals of exposure to hazardous materials for failure to report for a VA examination. The Veteran did not appeal that determination or submit new and material evidence within one year.

2. In an April 1994 rating decision, the RO denied entitlement to service connection for residuals of exposure to hazardous materials, including chest pains and joint disorders. The Veteran did not appeal that determination or submit new and material evidence within one year.

3. In an April 2005 rating decision, the RO denied entitlement to service connection for a respiratory disorder and denied reopening of claims for chest pain and joint pain (all as due to exposure to hazardous elements during the Gulf War). The Veteran did not appeal those determinations or submit new and material evidence within one year.

4. Evidence received since the April 2005 rating decision is new and material with respect to each of the claims on appeal because the evidence had not previously been submitted, is not cumulative or redundant of the evidence of record at the time of the prior rating decisions, and raises a reasonable possibility of substantiating the Veteran's claims.

5. The Veteran's currently diagnosed respiratory disorders, which include obstructive sleep apnea and allergic rhinitis, did not begin during, and were not otherwise caused by, his active service, to include exposure to hazardous materials.

6. The Veteran's current chest pains (diagnosed as costochondritis and diaphragm strain) did not begin during, or were otherwise caused by, his active service, to include exposure to hazardous materials.

7. The Veteran's currently diagnosed joint disorders, which include the separate and distinct conditions of arthritis of the right shoulder, right elbow olecranon spur, left knee sprain, patellofemoral syndrome of the left knee, chondromalacia of the left patella, and right knee patellofemoral syndrome, did not begin during, and were not otherwise caused by, his active service, to include exposure to hazardous materials.

CONCLUSIONS OF LAW

1. The April 1994 rating decision denying the Veteran's claim of entitlement to service connection for residuals of exposure to hazardous materials, including
) did not begin during, or were otherwise caused by, his active service, to include exposure to hazardous materials.

CONCLUSIONS OF LAW

1. The April 1994 rating decision denying the Veteran's claim of entitlement to service connection for residuals of exposure to hazardous materials, including chest pains and joint disorders, is final. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2016).

2. The April 2005 rating decision denying the Veteran's claim of entitlement to service connection for a respiratory disorder and denying reopening of claims of entitlement to service connection for chest pains and joint disorders is final. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2016).

3. The criteria for reopening the claim of entitlement to service connection for a respiratory disorder have been met. 38 U.S.C.A. §§ 5103A, 5108 (West 2014); 38 C.F.R. § 3.156 (2016).

4. The criteria for reopening the claim of entitlement to service connection for chest pains have been met. 38 U.S.C.A. §§ 5103A, 5108 (West 2014); 38 C.F.R. § 3.156 (2016).

5. The criteria for reopening the claim of entitlement to service connection for joint disorders have been met. 38 U.S.C.A. §§ 5103A, 5108 (West 2014); 38 C.F.R. § 3.156 (2016).

6. The criteria for service connection for a respiratory disorder, including obstructive sleep apnea and allergic rhinitis, have not been met. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.317 (2016).

7. The criteria for service connection for chest pains, diagnosed as costochondritis and diaphragm strain, have not been met. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.317 (2016).

8. The criteria for service connection for a joint disorder, including right shoulder, right elbow, and bilateral knee disabilities, have not been met. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.317 (2016).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. General Legal Standards and Duties to Notify and Assist

The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The points below focus on the most salient
Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The points below focus on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra.
Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. 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). Thus, the Board need not discuss any potential issues in this regard.

Further, the Veteran has not alleged any deficiency with the conduct of his hearing before the undersigned as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board.

The regulations pertinent to this decision (38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.317) were initially provided to the Veteran in the September 2012 Statement of the Case. Since he has had adequate notice of the pertinent laws, they will not be repeated in detail here.

II. New and Material Evidence

The Veteran first claimed entitlement to service connection for residuals of exposure to hazardous materials in November 1991. The RO denied the claim in January 1992 based on a failure to report for a scheduled examination and the lack of evidence to support the claim. The Veteran did not file a Notice of Disagreement or take any further steps to perfect an appeal of that decision. Also, no new and material evidence was received within the year following the decision. Therefore, the January 1992 decision became final. 38 U.S.C. §§ 7104, 7105 (West 2014); 38 C.F.R. § 20.1103 (2016).

In June 1993, the Veteran filed a new claim again seeking entitlement to service connection for the residuals of exposure to hazardous materials, including for chest pains and joint disorders (as well as other conditions). The RO denied claims of entitlement to service connection for joint disorders, chest pains, night sweats, acquired psychiatric conditions, general malaise, and headaches in an April 1994 rating decision. The Veteran did not file a Notice of Disagreement or take any further steps to perfect an appeal of that rating decision. Also, no new and material evidence was received within the year following the rating decision. Therefore, the April 1994 rating decision became final. 38 U.S.C. §§ 7104, 7105 (West 2014); 38 C.F.R. § 20.1103 (2016).

In January 2005, the Veteran filed a new claim again seeking entitlement to service connection for chest pain, respiratory problems, and joint pain, all due to the Gulf War. In an April 2005 rating decision, the RO denied claim of entitlement to service connection for a respiratory condition and denied reopening of the claims of entitlement to service connection for a joint disorder and for chest pains. The Veteran did not file a Notice of Disagreement or take any further steps to perfect an
. Therefore, the April 1994 rating decision became final. 38 U.S.C. §§ 7104, 7105 (West 2014); 38 C.F.R. § 20.1103 (2016).

In January 2005, the Veteran filed a new claim again seeking entitlement to service connection for chest pain, respiratory problems, and joint pain, all due to the Gulf War. In an April 2005 rating decision, the RO denied claim of entitlement to service connection for a respiratory condition and denied reopening of the claims of entitlement to service connection for a joint disorder and for chest pains. The Veteran did not file a Notice of Disagreement or take any further steps to perfect an appeal of that rating decision. Also, no new and material evidence was received within the year following the rating decision. Therefore, the April 2005 decision became final. 38 U.S.C. §§ 7104, 7105 (West 2014); 38 C.F.R. § 20.1103 (2016).

The Veteran filed an August 2009 request to reopen the previously denied claims relating to chest pain, respiratory problems, and joint pains. The RO reopened the claims based on new and material evidence, but denied them. The Veteran has appealed and those claims are now before the Board. Notwithstanding that the claims were reopened by the RO, the Board has an independent duty to assess whether a previously denied claim should be reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) ("the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened").

A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. See Shade v. Shinseki, 24 Vet. App. 110, 113 (2010). Evidence is "new and material" if it (1) has not been previously submitted to agency decision makers; (2) relates to an unestablished fact necessary to substantiate the claim; (3) is neither cumulative nor redundant of evidence already of record at the time of the last prior final denial of the claim sought to be opened; and (4) raises a reasonably possibility of substantiating the claim. 38 C.F.R. § 3.156(a).

The record now contains additional allegations by the Veteran and his friends and, more importantly, the reports of multiple VA examinations to assess the Veteran's conditions, as well as letters from a VA physician, all of which constitute new and material evidence. The claims are reopened.

III. Service Connection: General Principles

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

Further, where the veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service or diagnosis within the presumptive period after service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). The Veteran's diagnosed respiratory conditions (e.g., allergic rhinitis and obstructive sleep apnea), his diagnosed bilateral knee conditions (e.g., strain, patellofemoral pain syndrome, chondromalacia of the patella), and right elbow olecranon spur are not included in the list of chronic diseases under 38 C.F.R. § 3.309(a), so the Board will not apply the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology
.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). The Veteran's diagnosed respiratory conditions (e.g., allergic rhinitis and obstructive sleep apnea), his diagnosed bilateral knee conditions (e.g., strain, patellofemoral pain syndrome, chondromalacia of the patella), and right elbow olecranon spur are not included in the list of chronic diseases under 38 C.F.R. § 3.309(a), so the Board will not apply the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology to those claims.

The Veteran's diagnosed arthritis of the right shoulder, however, is included in the list of chronic diseases under 38 C.F.R. § 3.309(a), so the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology are potentially applicable and their applicability in this case will be discussed below.

Generally, the Veteran's own etiological opinions with respect to his diagnosed disabilities are not competent evidence in this case, where diagnosis of the conditions (e.g., obstructive sleep apnea, allergic rhinitis, costochondritis, chondromalacia, and arthritis) requires diagnostic imaging, physical testing, and/or specialized medical skill (including ruling out other potential diagnoses of subjectively observable symptoms), and determination of the cause of the conditions requires specialized knowledge, training, and experience. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012); Jandreau, 492 F.3d at 1377. His statements regarding the injury, observable symptoms, and reports of prior medical treatment have been considered in the context of the competent medical opinions.

Likewise, the other lay witnesses' reports of observable symptoms and their etiological opinions are not competent evidence with respect to the appropriate diagnosis of the Veteran's conditions or of their etiology. Davidson, 581 F.3d at 1316; King, 700 F.3d at 1344-45; Jandreau, 492 F.3d at 1377.

The Veteran has submitted an article that discusses the health concerns of Gulf War veterans and information about the activities of his unit, the 325th Maintenance Company. See information received in 2012 and 2017. To the extent these articles concern activities and exposures, generally, that individuals in his company experienced, such as exposure to CARC paint, that has been established and conceded. The question here is whether any of those activities or exposures caused this particular Veteran's health concerns.

IV. Presumptive Service Connection as Persian Gulf War Veteran

The Veteran served in the Persian Gulf and alleges disabilities and symptoms that raise the issue of entitlement to presumptive service connection for his claimed disabilities under the provisions of 38 U.S.C. § 1117. Section 1117 provides presumptive service for veterans who served in the Persian Gulf war with a qualifying chronic disability which are defined to include one of the following: (a) an undiagnosed illness; (b) a medically unexplained chronic multisymptom illness ("MUCMI"); or (c) any diagnosed illness as determined by the Secretary. The regulations implementing the statute define a MUCMI as "an undiagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities." 38 C.F.R. § 3.317(a)(2)(ii). The regulations further explain that chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. Id.; see also M21-1 Manual, Section IV.ii.2.D (providing, in part, that sleep apnea cannot be presumptively service-connected under section 3.317 because it is a diagnosable condition).

As will be discussed more fully below, the Veteran has been diagnosed with disabilities related to his claimed symptoms. With respect to respiratory conditions, he has been diagnosed with allergic rhinitis and obstructive sleep apnea. See, e.g., July 2012 VA Examination. With respect to chest pains, he has been diagnosed with costochondritis and a diaphragm strain. See April 2012 VA Treating Physician Statement (Dr. D.F.); March 2010 VA Examination. Finally, with respect to joint pains, he has been diagnosed with arthritis of the right shoulder, right elbow olecranon spur, left knee conditions (sprain, patellofemoral syndrome, chondromalacia of the patella), and right knee patellofemoral syndrome. See July 2012 VA Examination; March 2010 VA Examination; April 2012 VA Treating Physician Statement (left knee chondromalacia and right knee patellofemoral pain syndrome); January 2017 VA Treating Physician Statement (chronic bilateral knee pain); see also February 2017 VA Radiology Report (noting degenerative changes in the left knee).

Moreover, the Veteran underwent a VA examination for the express purpose of determining whether he had an undiagnosed illness or a MUCMI. See July 2012 VA Examination; see also March 2010 VA Examination ("There is no undiagnosed Gulf War illnesses."). The examiner indicated that, other than the specific conditions addressed in the completed disability benefits questionnaires (DBQs), the Veteran had no other abnormal findings or complaints. The examiner opined that there were not any diagnosed illnesses for which no etiology was established. The examiner noted the report of chest pains, which were not addressed in the DBQs, but which, as discussed above, had previously been diagnosed as costochondritis. The examiner further opined that the Veteran did not report any additional signs and/or symptoms not addressed in the DBQs.

No physician or other competent medical professional has opined that the Veteran suffers from an undiagnosed illness or from a MUCMI. For example, the Veteran's VA treating physician listed a number of diagnosed conditions, but gave no indication that the Veteran had any undiagnosed illness or MUCMI. See April 2012 and January 2017 VA Treating Physician Statements.

On this record, presumptive service connection under 38 U.S.C. § 1117 is not warranted for any of the conditions on appeal.

V. Service Connection: Respiratory Disorders

The Veteran has claimed entitlement to service connection for respiratory disorders.

The Veteran has been diagnosed with disabilities relating to his respiratory system that include allergic rhinitis and obstructive sleep apnea. See, e.g., July 2012 VA Examination; April 2012 VA Treating Physician Statement (Dr. D.F.); March 2010 VA Examination. The VA examiners had available the results of respiratory system testing which revealed spirometry readings within normal limits. See, e.g., March 2010 VA Final PFT Report (also noting absence of bronchodilator response and lung volumes that reveal "an isolated decreased ERV [consistent with] obesity, decreased effort or musculoskeletal abnormality"); July 2012 VA Final PFT Report ("Spirometry is within normal limits. Lung volumes are within normal limits. Diffusing capacity is moderately reduced."). The 2012 VA examiner specifically noted that, though he had not received the results when he wrote his report, that he would review the results and amend his report if warranted. The examiner did not amend the report, so the Board concludes that the examiner's diagnoses and conclusions were not changed by the July 2012 testing results. The examiner's determination of the significance of these reports is more probative than any lay interpretation by the Board. (The reports were also available to the VA treating physician who concurred in the diagnoses rendered by the VA examiners.)

The service treatment records do not document any occurrence of the diagnosed conditions or other respiratory disorders during the Veteran's service, though the onset of a cough was documented. See, e.g., June 1991 Report of Medical Examination (normal mouth, throat, lungs, and chest); June 1991 Report of Medical History (self-reporting "chronic cough"); June 1991 Service Treatment Record ("Reports cough. While in Saudi given meds. 24 hr. away from duty."). Importantly
examiner's determination of the significance of these reports is more probative than any lay interpretation by the Board. (The reports were also available to the VA treating physician who concurred in the diagnoses rendered by the VA examiners.)

The service treatment records do not document any occurrence of the diagnosed conditions or other respiratory disorders during the Veteran's service, though the onset of a cough was documented. See, e.g., June 1991 Report of Medical Examination (normal mouth, throat, lungs, and chest); June 1991 Report of Medical History (self-reporting "chronic cough"); June 1991 Service Treatment Record ("Reports cough. While in Saudi given meds. 24 hr. away from duty."). Importantly, the VA examiners did not identify the reported cough as a separately diagnosable condition, though the VA treating physician listed "allergic rhinitis-cough" in his April 2012 report. The Board finds that the greater weight of the evidence is against finding that the Veteran has a current respiratory disability consisting of or characterized by a cough.

In addition, although the diagnostic codes do include coughing, usually productive and/or requiring antibiotic treatment, in several diagnostic codes, the type of cough described by the Veteran and/or as documented in the medical records would not warrant any compensable rating under any diagnostic code. The Board finds that it does not constitute a disability for VA purposes at any point during the appeal period. 38 C.F.R. §§ 3.303, 4.97, see e.g. DC 6601 and General Rating Formula for Mycotic Lung Disease); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("In the absence of proof of a present disability there can be no valid claim."); see also Gilpin v. West, 155 F.3d 1353, 1355 (Fed. Cir. 1998).

To be clear, the in-service cough was an event or injury during service which the Board has considered in connection with the Veteran's claims, but the Veteran does not have a current disability for VA purposes consisting of or characterized by a cough.

The Veteran's in-service exposure to paint fumes and potentially other toxins, however, is well-documented. See, e.g., June 1991 Service Treatment Record (discussing involvement in painting with use of respirator and work with solvents); see also Military Personnel Records (documenting service in Southeast Asia). In summary, the Veteran has a current disability and there was an in-service event or injury. The first two elements of a service connection claim have been met.

The determinative issue whether there is a causal nexus between the in-service exposures and one or both of the current respiratory disabilities.

1. Non-Specific Favorable Nexus Opinions.

The record includes a December 1997 statement from Dr. R. B. Pettyjohn indicating "it is far more likely than not that the majority of diagnoses made during the CCEP process for this solder can be attributed to his service during the Persian Gulf War." The physician discussed the Veteran's likely exposure to toxins and discussed the evidence of onset of "subtle symptoms such as weakness, difficulty concentrating, extreme fatigue, memory deficits, and various musculoskeletal complaints." The letter also describes some of the medical and scientific evidence indicating that it is biologically plausible for various toxins to which the Veteran was or may have been exposed to cause a variety of health problems. Nowhere in the letter, however, does the physician discuss this Veteran's specific health problems other than his initial assertion regarding "a majority of diagnoses".

Dr. Pettyjohn's statement does not warrant any probative weight in favor of (or against) the Veteran's respiratory claim as it is not clear which diagnoses are encompassed in the nexus opinion. The opinion fails to link the general scientific and medical information provided to any of this Veteran's current disabilities (to include, for example, any generic link of these exposures to obstructive sleep apnea). Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); accord Sacks v. West, 11 Vet.App. 314, 316-17 (1998) (holding that information contained within treatises is generally too abstract to prove the nexus element of a service-connection claim, although it is possible that a treatise might "discuss generic relationships with a degree of certainty" that would allow a finding of "plausible causality based upon objective facts.").

The record contains another letter from the same physician written for a different Veteran. Again, the letter has some probative value in establishing that the types of chemicals/toxins to which the Veteran was exposed could cause some illnesses, but does not provide
, 22 Vet. App. 295, 304 (2008); accord Sacks v. West, 11 Vet.App. 314, 316-17 (1998) (holding that information contained within treatises is generally too abstract to prove the nexus element of a service-connection claim, although it is possible that a treatise might "discuss generic relationships with a degree of certainty" that would allow a finding of "plausible causality based upon objective facts.").

The record contains another letter from the same physician written for a different Veteran. Again, the letter has some probative value in establishing that the types of chemicals/toxins to which the Veteran was exposed could cause some illnesses, but does not provide either specific or generic links between the exposure and any of the Veteran's current disabilities. See June 1997 Dr. Pettyjohn Letter (discussing possible symptoms and plausibility of causation of general illness, but with the other patient's name and his/her particular diagnoses redacted). This letter has no probative value on the determinative issue in this case, specifically whether there is a causal nexus between the in-service exposures and this Veteran's current respiratory disabilities. Nieves-Rodriguez, 22 Vet.App. at 304.

The record also includes a Materials Data Sheet discussing the risks associated with exposure to the CARC paint and various articles discussing general medical principles and possible associations between exposure to toxins and various symptoms and/or conditions. While these materials indicate that the Veteran's in-service exposures (actual and potential) could be associated with various respiratory disorders, the materials are too abstract and discuss generic relationships without sufficient certainty or particularity to warrant probative weight with respect to the Veteran's respiratory disorders. Sacks, 11 Vet.App. at 316-17.

In reaching these conclusions, the Board notes that, as discussed above, the greater weight of the medical evidence is against finding that the Veteran has any undiagnosed illness or MUCMI with symptoms such as fatigue, weakness, memory deficits, etc.. Consequently, the opinion that the exposures could cause such an illness is not relevant in this particular case.

2. Allergic Rhinitis.

With respect to the diagnosed allergic rhinitis, the record includes a favorable opinion from the Veteran's private physician. See April 2012 Physician's Opinion (identified at the hearing as the opinion of the Veteran's treating VA physician, Dr. D.F., and the signature matches that of Dr. D.F.'s February 2017 statement). The April 2012 opinion notes the diagnosis of allergic rhinitis and explains: "His breathing problems started only after he returned from the Gulf. It had been very common among our veterans who have been exposed to the dust in the fields." This opinion does not link the condition to exposure to toxins, but generally to "dust in the fields." This opinion is entitled to little weight as it contains very little rationale linking the Veteran's actual condition (rhinitis, rather than general "breathing problems") to any in-service exposure to dust (and does not discuss at all other exposures). Nieves-Rodriguez, 22 Vet.App. at 304.

Dr. D.F.'s January 2017 opinion letter contains no reference to the Veteran's diagnosed allergic rhinitis, but only discusses the listed respiratory condition of "obstructive sleep apnea." That letter has no probative weight with respect to the claimed condition of allergic rhinitis.

The record also contains the opinion of the July 2012 VA examiner who noted an initial diagnosis of allergic rhinitis in 2012 (many years after the Veteran's active service). The examiner opined that it was less likely than not that the Veteran's allergic rhinitis was "incurred in or caused by exposure to toxic (CARC) paints as claimed." The examiner explained that he conducted a medical literature review and that the current literature does not support that exposure to toxic (CARC) paints can cause allergic rhinitis. The opinion is entitled to probative value as given the lack of any link in the medical literature between the toxins and the Veteran's particular condition (allergic rhinitis). Nieves-Rodriguez, 22 Vet.App. at 304.

Here, the Board finds that the negative opinion of the VA examiner has more probative value than the more favorable opinions. This finding is based on the specificity of the opinion, the fact that it is explicitly based on literature relating to this particular toxin and this particular diagnosed condition, and the medical evidence indicates that this particular respiratory disability had onset in 2012 (whereas the favorable 2012 opinion discusses onset of more general "breathing problems" during active service). See Owens v. Brown, 7 Vet. App
given the lack of any link in the medical literature between the toxins and the Veteran's particular condition (allergic rhinitis). Nieves-Rodriguez, 22 Vet.App. at 304.

Here, the Board finds that the negative opinion of the VA examiner has more probative value than the more favorable opinions. This finding is based on the specificity of the opinion, the fact that it is explicitly based on literature relating to this particular toxin and this particular diagnosed condition, and the medical evidence indicates that this particular respiratory disability had onset in 2012 (whereas the favorable 2012 opinion discusses onset of more general "breathing problems" during active service). See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Nieves-Rodriguez, 22 Vet.App. at 304; see also January 1994 VA Examination (indicating respiratory system was normal).

The greater weight of the evidence is against granting entitlement to service connection for the Veteran's allergic rhinitis.

3. Obstructive Sleep Apnea.

With respect to the diagnosed obstructive sleep apnea, the record includes a favorable opinion from the Veteran's treating physician. See January 2017 VA Treating Physician Opinion. The January 2017 opinion letter states, in conclusory fashion, that "I believe it is more likely than not, that his...respiratory condition [was] caused by the result of, or aggravated by his military service." The examiner's rationale consists of the statement: "Given his personal history, rigors of military service in the field and during physical training and its resulting chest pains and respiratory condition....it's more likely than not related to his military tour of duty and from his days of service in the military." The treating physician does not mention the exposure to toxic paints or other environmental hazards. The Veteran's service treatment records do not document any respiratory condition, particularly including obstructive sleep apnea, as the physician appears to suggest. In making this finding, the Board acknowledges that the Veteran did report having had "any nightmares or trouble sleeping." The nature of this report, whether the issue was nightmares or some other trouble sleeping, is not identified in the Southwest Asia Demobilization / Redeployment Medical Evaluation or in any other service records. The Board does not interpret this record as a reference to any in-service respiratory issues.

Importantly, the January 2017 opinion from Dr. D.F. does not indicate that the Veteran's obstructive sleep apnea is at least as likely as not related to exposure to toxins, the in-service event identified by the Veteran and supported by the record. In fact, Dr. D.F. does not identify what, if any, in-service event is related to the currently diagnosed obstructive sleep apnea. The physician discusses the Veteran's in-service knee problems and his reported chest pains, but provides no explanation of how either of these in-service events (or generic "rigors of military service in the field and during physical training") would or could be related to his current obstructive sleep apnea. Given the lack of any rationale linking the current obstructive sleep apnea to any in-service injury or event, the opinion does not warrant probative weight. Nieves-Rodriguez, 22 Vet.App. at 304.

Dr. D.F.'s April 2012 opinion letter contains no reference to the Veteran's diagnosed obstructive sleep apnea, so has no probative weight with respect to that issue.

The record also contains the opinion of the July 2012 VA examiner who noted an initial diagnosis of obstructive sleep apnea in 2005 (years after the Veteran's active service). The examiner opined that it was less likely than not that the Veteran's obstructive sleep apnea was "incurred in or caused by exposure to toxic (CARC) paints as claimed." The examiner explained that he conducted a medical literature review and that the current literature does not support that exposure to toxic (CARC) paints can cause obstructive sleep apnea. The opinion is entitled to probative value as it is based on accurate facts, provides medical information, and links the facts and medical principles to the conclusion. Nieves-Rodriguez, 22 Vet.App. at 304.

Here, the Board finds that the negative opinion of the VA examiner has more probative value than the more favorable opinions. This finding is based on the specificity of the opinion, the fact that it is explicitly based on literature relating to this particular toxin and this particular diagnosed condition, and the medical evidence indicates that this particular respiratory disability had onset in 2005 (whereas the favorable 2017 opinion from Dr. D.F. fails to connect the condition to any particular event or injury during service other than "the rigors of
to probative value as it is based on accurate facts, provides medical information, and links the facts and medical principles to the conclusion. Nieves-Rodriguez, 22 Vet.App. at 304.

Here, the Board finds that the negative opinion of the VA examiner has more probative value than the more favorable opinions. This finding is based on the specificity of the opinion, the fact that it is explicitly based on literature relating to this particular toxin and this particular diagnosed condition, and the medical evidence indicates that this particular respiratory disability had onset in 2005 (whereas the favorable 2017 opinion from Dr. D.F. fails to connect the condition to any particular event or injury during service other than "the rigors of military service" and "physical training"). See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Nieves-Rodriguez, 22 Vet.App. at 304; see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may consider failure to report symptoms for many years); see also January 1994 VA Examination (indicating respiratory system was normal).

The greater weight of the evidence is against granting entitlement to service connection for the Veteran's obstructive sleep apnea.

4. Conclusion

The VA examiner's negative opinions regarding the relationship between the Veteran's active service and his current respiratory disabilities have more probative weight than the generic favorable opinion of Dr. Pettyjohn and the 2012 and 2017 nexus opinions of the Veteran's treating physician (Dr. D.F.), including because the negative opinion provides a more thorough and convincing rationale which addresses the alleged in-service event and discusses the reason the event does not have a relationship to the current disabilities. Moreover, the evidence is against finding that the Veteran has respiratory symptoms that are due to or related to an undiagnosed illness or MUCMI. The evidence is not in equipoise, rather the greater weight of it is against the claim. Gilbert, 1 Vet.App. at 53-56. Accordingly, entitlement to service connection for a respiratory condition is denied.

VI. Service Connection: Chest Pains

The Veteran claims entitlement to service connection for chest pains, to include as due to service in Southwest Asia and/or exposure to hazardous materials.

A March 2010 VA examination resulted in a diagnosis of costochondritis (inflammation of cartilage in the chest) and diaphragm sprain. See also April 2012 VA Treating Physician Opinion (referencing costochondritis diagnosis). Again, the evidence establishes the in-service exposure to toxins, so the first two elements of a service connection claim (current disability and in-service event) are met. The dispositive issue is whether there is a causal nexus between the in-service event and the current disability.

As discussed above, the opinions of Dr. Pettyjohn are favorable, but are not specific regarding which disabilities are or may be related to the toxic exposures. The opinions, therefore, have no probative weight on the issue of the cause of the Veteran's diagnosed costochondritis. See Nieves-Rodriguez, 22 Vet. App. at 304; accord Sacks, 11 Vet.App. at 316-17.

The March 2010 VA examiner who diagnosed costochondritis and diaphragm sprain opined that the Veteran did not have an undiagnosed Gulf War illness, but did not otherwise provide a nexus opinion specifically addressing any relationship between the Veteran's in-service exposure to toxins and his active service. Therefore, the opinion has minimal probative value against the Veteran's claim that his chest pains are due to in-service events.

The April 2012 opinion letter from the Veteran's treating VA physician, Dr. D.F., provides a positive nexus opinion, but fails to provide any rationale beyond "breathing problems started only after he returned from the Gulf" and that such complaints were "very common among our veterans who have been exposed to the dust in the fields." The Board does not interpret the rationale as being directly related to the costochondritis (pain in the chest, rather than breathing problems), so the opinion has minimal probative value in favor of the claim.

The July 2012 VA examiner noted the Veteran's report of intermittent chest pains (with lack of treatment), but opined that it was less likely than not that the Veteran's costochondritis was "incurred in or caused by exposure to toxic (CARC) paints as claimed." The examiner explained that he conducted a medical literature review and that the current literature does not support that exposure to toxic (CARC) paints can cause costochondritis. The opinion is entitled to probative value as it is based
the fields." The Board does not interpret the rationale as being directly related to the costochondritis (pain in the chest, rather than breathing problems), so the opinion has minimal probative value in favor of the claim.

The July 2012 VA examiner noted the Veteran's report of intermittent chest pains (with lack of treatment), but opined that it was less likely than not that the Veteran's costochondritis was "incurred in or caused by exposure to toxic (CARC) paints as claimed." The examiner explained that he conducted a medical literature review and that the current literature does not support that exposure to toxic (CARC) paints can cause costochondritis. The opinion is entitled to probative value as it is based on accurate facts, provides medical information, and links the facts and medical principles to the conclusion. Nieves-Rodriguez, 22 Vet.App. at 304.

Finally, the January 2017 opinion by the Veteran's treating VA physician, Dr. D.F., notes a diagnosis of "intermittent chest pain", but, as with the other conditions, fails to link that condition (or symptom) to any particular in-service event other than "rigors of military service" and "physical training." More importantly, the opinion provides no rationale explaining how the physical exertions identified as related to the condition could have produced a chronic disability consisting of chest pains. The opinion lacks a thorough or convincing rationale and the Board assigns the opinion no probative weight. Nieves-Rodriguez, 22 Vet.App. at 304.

The evidence is not in equipoise, rather the greater weight of it is against the claim. Gilbert, 1 Vet.App. at 53-56. Accordingly, entitlement to service connection for chest pains is denied.

VII. Service Connection: Joints

The Veteran claims entitlement to service connection for a joint disorder, to include as due to service in Southwest Asia and/or exposure to hazardous materials.

With respect to joint pains, he has been diagnosed with arthritis of the right shoulder, right elbow olecranon spur, left knee conditions (sprain, patellofemoral syndrome, chondromalacia of the patella), and right knee patellofemoral syndrome. See July 2012 VA Examination; March 2010 VA Examination; April 2012 VA Treating Physician Statement (left knee chondromalacia and right knee patellofemoral pain syndrome); January 2017 VA Treating Physician Statement (chronic bilateral knee pain).

The service treatment records indicate the toxic exposures already discussed, as well as an in-service left knee injury. An in-service event or injury and current disabilities are established, so the remaining element of the claim is a nexus.

The Board has previously discussed the evidence against finding that there is an undiagnosed illness or MUCMI characterized by or consisting of joint pain. Moreover, the evidence is against finding that there is a general joint disorder, but instead establishes the above, separate and distinct diagnoses relating to the right shoulder, right elbow, left knee, and right knee. The Board will discuss each joint separately.

Shoulder

As noted above, the Veteran's diagnosed arthritis of the right shoulder is included in the list of chronic diseases under 38 C.F.R. § 3.309(a), so the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology are potentially applicable. The medical evidence indicates that the right shoulder arthritis was first diagnosed in 2010, many years after his discharge from active service. See July 2012 VA Examination. Moreover, the Veteran's exit examination and the VA examination performed shortly after service do not document any diagnosis or complaints of a shoulder condition, to include arthritis. See January 1994 VA Examination (musculoskeletal was noted as normal with no abnormalities or complaints); Service Treatment Records, generally. At his July 2012 VA Examination, the Veteran reported onset of shoulder pain in approximately 1991; however, the medical evidence does not document any complaints or treatment during that time and a VA examination (general medical) subsequent to his active service did not include any diagnosis of a shoulder injury and did not document any complaints of shoulder symptoms. See January 1994 VA Examination (indicating no musculoskeletal abnormalities, to include swelling, atrophy, tenderness or limitation of flexion or extension).

The greater weight of
document any diagnosis or complaints of a shoulder condition, to include arthritis. See January 1994 VA Examination (musculoskeletal was noted as normal with no abnormalities or complaints); Service Treatment Records, generally. At his July 2012 VA Examination, the Veteran reported onset of shoulder pain in approximately 1991; however, the medical evidence does not document any complaints or treatment during that time and a VA examination (general medical) subsequent to his active service did not include any diagnosis of a shoulder injury and did not document any complaints of shoulder symptoms. See January 1994 VA Examination (indicating no musculoskeletal abnormalities, to include swelling, atrophy, tenderness or limitation of flexion or extension).

The greater weight of the evidence indicates that there has not been a continuity of symptomatology of right shoulder arthritis.

The only competent evidence specifically addressing whether there is a causal nexus between the right shoulder disability and the Veteran's service is the negative opinion of the July 2012 VA examiner. The Veteran's VA treating physician, Dr. D.F., did not include it in the list of diagnoses that he opined were related to the Veteran's service. For the reasons discussed above, the generic literature and the opinions of Dr. Pettyjohn have no probative value with respect to the etiology of this specific disability. Likewise, the Veteran's and his lay witnesses' opinions are not competent evidence on this issue.

The evidence is not in equipoise, rather the greater weight of it is against any claim that the right shoulder condition is related to service. Gilbert, 1 Vet.App. at 53-56. Accordingly, entitlement to service connection for a right shoulder disability is denied.

Right Elbow

As with the shoulder, a current right elbow diagnosis (olecranon spur) and an in-service event (exposure to toxic materials) have been established, so the dispositive issue is an etiological relationship between the two. The only competent evidence of record on that issue is the negative opinion of the July 2012 VA examiner. Again, the medical literature and Dr. Pettyjohn's opinion are too generic to constitute probative evidence with respect to this particular condition and the lay opinions of record are not competent evidence.

Knees

Current knee diagnoses (patellofemoral syndrome of the right; chondromalacia and strain of the left) and an in-service event (exposure to toxic materials, in-service left knee strain/sprain) have been established, so the dispositive issue is an etiological relationship between the current disabilities and at least one of the in-service events or injuries.

The medical literature of record and Dr. Pettyjohn's opinion are too generic to constitute probative evidence with respect to this particular condition and the lay opinions of record are not competent evidence.

The Veteran's VA treating physician, Dr. D.F., opined both in April 2012 and in January 2017 that the Veteran's bilateral knee conditions were related to his active service. In the April 2012 opinion, Dr. D.F. discussed the onset of knee pain during service. The service treatment records only document left knee pain. Therefore, the facts presumed by the VA physician in his April 2012 opinion are not accurate and reduce the probative value of his opinion. The January 2017 opinion letter from Dr. D.F. discusses the left knee injury and, impliedly, relates this injury to his current bilateral knee pain. Given that the in-service injury only involved the left knee, the failure to explain why an injury to one knee would cause a later disability in both knees reduces the probative value of the opinion. Moreover, the January 2017 opinion from Dr. D.F. does not discuss several key facts noted by the July 2012 VA examiner, specifically, the normal in-service x-rays and the indications in the record that the left knee condition was resolving, then fully resolved. Neither opinion provides any discussion indicating that the in-service exposure to toxins contributed to the knee conditions. Due to the lack of a thorough or convincing rationale, the April 2012 and January 2017 opinions of the VA treating physician (Dr. D.F.) are entitled to little probative weight in favor of the Veteran's claim.

The July 2012 VA examiner provided a convincing rationale for the negative opinion regarding any connection between the in-service injury and the current knee disabilities, including that the treatment records reveal conservative treatment of a transient left knee strain with no documented residuals, that in-service x-rays were negative and that the follow-up visits after
-rays and the indications in the record that the left knee condition was resolving, then fully resolved. Neither opinion provides any discussion indicating that the in-service exposure to toxins contributed to the knee conditions. Due to the lack of a thorough or convincing rationale, the April 2012 and January 2017 opinions of the VA treating physician (Dr. D.F.) are entitled to little probative weight in favor of the Veteran's claim.

The July 2012 VA examiner provided a convincing rationale for the negative opinion regarding any connection between the in-service injury and the current knee disabilities, including that the treatment records reveal conservative treatment of a transient left knee strain with no documented residuals, that in-service x-rays were negative and that the follow-up visits after the initial injury indicated that "the left knee problem [was] 'resolving' --> 'resolved.'" The examiner also noted that lack of any support in the medical literature that would support finding that the exposure to toxins would cause the Veteran's diagnosed knee problems.

The negative opinion of the VA examiner has more probative value than the more favorable opinions. The unfavorable opinion is more fully explained, has a more explicit and reliable basis in fact and medical principles, and is more convincingly reasoned. See Owens, 7 Vet. App. at 433; Nieves-Rodriguez, 22 Vet.App. at 304. In addition, the medical evidence suggests a delay between discharge from service and the onset of the current knee conditions which provides some additional, albeit slight, probative weight against the Veteran's claim. See January 1994 VA Examination (indicating no musculoskeletal abnormalities, to include swelling, atrophy, tenderness or limitation of flexion or extension); Maxson, 230 F.3d at 1333.

The evidence is not in equipoise, rather the greater weight of it is against the claim. Gilbert, 1 Vet.App. at 53-56. Accordingly, entitlement to service connection for right and left knee disabilities is denied.

Summary: Joints

The greater weight of the evidence is against finding that the Veteran has any general joint disability or any disability (to include an undiagnosed illness or MUCMI) characterized by pain of multiple joints. Instead, the greater weight of the evidence indicates that the Veteran has several separate and distinct diagnoses of joint disabilities. The greater weight of the evidence is against finding that any of the diagnosed joint disabilities is related to any in-service event, to include as due to service in Southwest Asia and/or exposure to hazardous materials.

The evidence is not in equipoise, rather the greater weight of it is against the claim. Gilbert, 1 Vet.App. at 53-56. Accordingly, entitlement to service connection for a joint disorder is denied.

ORDER

As new and material evidence has been received to reopen a claim of entitlement to service connection for a respiratory condition, the claim is reopened. To that extent only, the appeal is granted.

As new and material evidence has been received to reopen a claim of entitlement to service connection for chest pains, the claim is reopened. To that extent only, the appeal is granted.

As new and material evidence has been received to reopen a claim of entitlement to service connection for a joint disorder, the claim is reopened. To that extent only, the appeal is granted.

Entitlement to service connection for a respiratory condition, including obstructive sleep apnea and allergic rhinitis, to include as due to service in Southwest Asia and/or exposure to hazardous materials, is denied.

Entitlement to service connection for chest pains, diagnosed as costochondritis and diaphragm strain, to include as due to service in Southwest Asia and/or exposure to hazardous materials, is denied.

Entitlement to service connection for a joint disorder (including right shoulder, right elbow, and bilateral knee disabilities), to include as due to service in Southwest Asia and/or exposure to hazardous materials, is denied.

______________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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