CHRONIC OBSTRUCTIVE PULMONARY DISEASE (COPD)

BRIAN J. ELWOOD · 2022 · Case ID: 22018534

MIXED

Summary

The Veteran served in the U.S. Army from March 1990 to August 1990 and November 1990 to June 1991, including service in the Southwest Asia theater of operations during the Persian Gulf War. The Veteran appealed the denial of service connection for a respiratory disability, claimed as due to an undiagnosed illness. The Board noted conflicting VA medical opinions regarding a current diagnosis of chronic bronchitis, with a later opinion finding no chronic respiratory injury related to Gulf War exposure. The Board found the August 2021 VA opinion to be most probative, concluding that the Veteran's acute bronchitis episodes were likely infectious and not linked to exposure. The Board also found the Veteran's lay opinion on nexus to be incompetent, as the issue required specialized medical knowledge. The evidence was found to persuasively weigh against service connection for the respiratory disability, making the benefit of the doubt doctrine inapplicable. The case was remanded for further development on claims for gastrointestinal disorder and fatigue, both claimed as due to undiagnosed illness. This included obtaining outstanding VA treatment records and providing new VA examinations to assess the nature and etiology of these conditions, specifically inquiring about their relationship to service, undiagnosed illness, or MUCMI, and whether they met the criteria for chronic disability.

Rationale

Conflicting VA medical opinions on current diagnosis of chronic bronchitis.; Later VA opinion found no chronic respiratory injury related to Gulf War exposure.; Veteran's lay opinion on nexus was deemed incompetent.; Evidence persuasively weighed against service connection.

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

17-01 050

Full Decision Text

Citation Nr: 22018534
Decision Date: 03/29/22 Archive Date: 03/29/22

DOCKET NO. 17-01 050
DATE: March 29, 2022

ORDER

Entitlement to service connection for respiratory disability (including chronic bronchitis), claimed as due to an undiagnosed illness, is denied.

REMANDED

Entitlement to service connection for a gastrointestinal disorder, claimed as due to an undiagnosed illness, is remanded.

Entitlement to service connection for disability manifested by fatigue (including chronic fatigue syndrome), claimed as due to an undiagnosed illness, is remanded.

FINDING OF FACT

The evidence persuasively weighs against a finding that the Veteran's current respiratory disability is related to his service.

CONCLUSION OF LAW

The criteria for service connection for respiratory disability (including chronic bronchitis) have not been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from March 1990 to August 1990 and from November 1990 to June 1991, which includes service in the Southwest Asia theater of operations.

These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In December 2018 and August 2021, the Board remanded these matters for further development.

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. §§ 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

For veterans with service in the Southwest Asia theater of operations during the Persian Gulf War, service connection may be established under 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Under this law and regulation, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of "a qualifying chronic disability" that became manifest 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. 38 C.F.R. § 3.317 (a)(1). For purposes of 38 C.F.R. § 3.317, qualifying chronic disabilities include, among other things, an undiagnosed illness and a medically unexplained chronic multisymptom illness (MUCMI). 38 C.F.R. § 3.317 (a)(2).

A MUCMI is a diagnosed 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. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 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. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. 38 C.F.R. § 3.317.

Signs or symptoms which may be manifestations of undiagnosed illness or MUCMI include, but are not limited to, fatigue, signs or symptoms involving skin, headaches, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317 (b).

Although entitlement to service connection on any of the presumptive bases noted above may not be
and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. 38 C.F.R. § 3.317.

Although entitlement to service connection on any of the presumptive bases noted above may not be established, a veteran is not precluded from establishing service connection on a direct basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Entitlement to service connection for respiratory disability (including chronic bronchitis), claimed as due to an undiagnosed illness

First, the Board notes that the Veteran was diagnosed with chronic bronchitis in an October 2015 VA respiratory conditions examination. The Board further notes that an October 2021 VA examiner found that the Veteran did not have a current diagnosis of chronic bronchitis and that the prior diagnosis was incorrect. See Oct. 2021 C&P Examination, p. 4. However, taking into account the six-year difference in time between the two examinations, the Board will resolve all reasonable doubt in favor of the Veteran and find that the evidence in favor of a current disability is at least in equipoise. Accordingly, the first element of service connection is met. See Shedden, supra.

Next, the board notes that the Veteran has contended that the disability is related to exposure to contaminants during his service in the Gulf War. The Veteran's BIRLS Military History indicates that he served in the Gulf War from January 9, 1991 to May 11, 1991. See Oct. 2015 Service Record, p. 3.

With regard to nexus, the Board notes that the Veteran has undergone multiple VA examinations as to his claim of service connection for respiratory disability. In July 2013, a VA examiner stated that the Veteran reported one episode of bronchitis during service for which he was treated with antibiotics. See Jul. 2013 VA Examination, pp. 90-91. The examiner reasoned that acute bronchitis with appropriate antibiotics will resolve and that there was no documentation in the claims file of recurrent episodes of respiratory disease. Id. at 91.

In November 2015, another VA examiner stated that chronic bronchitis is a long-term condition that requires a cough with mucus on most days for at least three months. The examiner further noted that the Veteran's service treatment records were silent for any breathing complaints or diagnosis. The examiner therefore concluded that it is less likely than not that the Veteran's lung conditions were related to Gulf War exposure.

In August 2021, as noted above, the VA examiner issued an opinion finding that the Veteran does not have a current diagnosis of chronic bronchitis. The examiner found that the Veteran has had instances of acute bronchitis caused by viral or bacterial infection and that there is no evidence that he sustained chronic respiratory injury or damage due to exposure in Southwest Asia during the Gulf War. The examiner did not find any objective imaging or spirometry to support a diagnosis of chronic bronchitis. The examiner concluded that the Veteran's acute episodes of bronchitis were likely infections in nature and could not speculatively be linked to exposure.

The Board assigns significant probative value to the August 2021 VA opinion as it reflects a thorough review of the claims file and a well-reasoned and well-supported medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).

Additionally, lay evidence may be competent on a variety of matters concerning the nature and cause of disability. However, the dispositive question presented in this case (i.e., whether any relationship exists between the Veteran's respiratory disability and service, to include exposure to environmental exposures in Southwest Asia) is a question as to internal medical processes which extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). An opinion as to whether there is a link between the Veteran's claimed respiratory disability and service (where there is no evidence of any respiratory problems for years following service) is one requiring specialized knowledge and testing to understand the complex nature of the body systems. The Veteran has not indicated that he has such experience. His opinion on the question of nexus is therefore not competent evidence in this instance.

Moreover, as the Veteran's claimed respiratory disability was specifically diagnosed as bronchitis, it is not an undiagnosed illness. Also, the Veteran has not experienced any overlapping signs and symptoms associated with his claimed respiratory disability. In this regard, he has only reported shortness of breath associated with his claimed disability and there is otherwise no evidence of multiple symptoms associated with his disability. Therefore, his claimed respiratory disability is also not a MUCMI.

There is no other evidence of a relationship between the Veteran's current respiratory disability and service, and neither he nor his representative have alluded to the existence of any such evidence. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for respiratory disability is warranted. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

REASONS FOR REMAND

1. Entitlement to service connection for disability manifested by fatigue (including chronic fatigue syndrome), claimed as due to an undiagnosed illness

The Veteran contends that he has current disability manifested by fatigue, to include chronic fatigue syndrome, that is related to his active service. He has undergone three separate VA examinations for his fatigue, but he has not been found to meet the criteria for a diagnosis of chronic fatigue syndrome. However, no adequate opinion has been obtained as to whether any of the Veteran's fatigue is due to an undiagnosed illness or a MUCMI associated with his service in Southwest Asia.

In light of the above, a remand is necessary to afford the Veteran an appropriate examination and obtain a new opinion as to the nature and etiology of his claimed disability manifested by fatigue.

Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Atlanta Vista electronic records system (dated to October 2015) and the Muskogee Vista electronic records system (dated to January 2016). Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them.

2. Entitlement to service connection for a gastrointestinal disorder, claimed as due to an undiagnosed illness, is remanded.

The Board notes that a VA medical opinion for the Veteran's claimed gastrointestinal disorder was most recently obtained in August 2021. The clinician provided a medical opinion only as to the Veteran's gastroesophageal reflux disease (GERD). However, the Board notes that the Veteran was also diagnosed with diarrhea in a July 2013 VA examination, potentially due to stomach irritation. See Jul. 2013 VA examination, p. 31. The Board finds the August 2021 VA opinion to be inadequate for adjudication purposes, as it does not address the Veteran's diarrhea diagnosis, which would qualify as a gastrointestinal disorder. Also, no adequate opinion has been obtained as to whether any of the Veteran's gastrointestinal symptoms are due to an undiagnosed illness or a MUCMI associated with his service in Southwest Asia. Accordingly, the claim must be remanded in order to obtain an adequate examination and opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

Also, all outstanding VA treatment records should be secured upon remand.

The matters are REMANDED for the following action:

1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for fatigue and gastrointestinal disability, to include the dates of any such treatment.

Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for fatigue and gastrointestinal disability from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile.

2. Obtain the Veteran's outstanding VA treatment records from the Atlanta Vista electronic records system for the period since October 2015; the Muskogee Vista electronic records system for the period since January 2016; and all such relevant records from any other sufficiently identified VA facility.

3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA examination to determine the nature of any current gastrointestinal disorder (to include GERD and diarrhea) and to obtain a medical opinion as to whether any such disability is related to service. Any indicated evaluations, studies, or tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion and the examination report should include a discussion of the Veteran's documented medical history and assertions.

The examiner should determine all of the Veteran's current gastrointestinal disabilities and symptoms that he has experienced since approximately August 2012, and answer all of the following questions:

(a.) Has the Veteran experienced irritable bowel syndrome at any time since approximately August 2012?

(b.) For each identifiable gastrointestinal disability diagnosed (including, but not limited to, GERD) is there an approximately 50 percent chance that the disability (1) began during any period of active service; OR (2) is related to a disease or injury in service, to include as due to exposure to contaminants during the Veteran's service in Southwest Asia during the Persian Gulf War?

(c.) Is there an approximately 50 percent chance that any identifiable gastrointestinal disability experienced by the Veteran since approximately August 2012 has at least a partially understood pathophysiology AND etiology?

(d.) Does any gastrointestinal symptom experienced by the Veteran since approximately August 2012 represent an objective indication of chronic disability resulting from (1) an undiagnosed illness; OR (2) a medically unexplained chronic multisymptom illness without conclusive pathophysiology OR etiology?

The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries and that his reports must be taken into account in formulating the requested opinions.

The examiner must provide rationale for all proffered opinions.

4. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA examination to determine the nature of any current disability manifested by fatigue (to include chronic fatigue syndrome) and to obtain a medical opinion as to whether any such disability is related to service. Any indicated evaluations, studies, or tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should
conclusive pathophysiology OR etiology?

The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries and that his reports must be taken into account in formulating the requested opinions.

The examiner must provide rationale for all proffered opinions.

The examiner should answer all of the following questions:

(a.) Has the Veteran experienced chronic fatigue syndrome at any time since approximately August 2012?

(b.) For each identifiable disability manifested by fatigue diagnosed since approximately August 2012, is there an approximately 50 percent chance that the disability (1) began during any period of active service; OR (2) is related to a disease or injury in service, to include as due to exposure to contaminants during the Veteran's service in Southwest Asia during the Persian Gulf War?

(c.) Is there an approximately 50 percent chance that any identifiable disability manifested by fatigue experienced by the Veteran since approximately August 2012 has at least a partially understood pathophysiology AND etiology?

(d.) Does any fatigue experienced by the Veteran since approximately August 2012 represent an objective indication of chronic disability resulting from (1) an undiagnosed illness; OR (2) a medically unexplained chronic multisymptom illness without conclusive pathophysiology OR etiology?

The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries and that his reports must be taken into account in formulating the requested opinions.

The examiner must provide rationale for all proffered opinions.

Brian J. Elwood

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board R. Watkins, 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.

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