Citation Nr: 18160614
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 10-38 977
DATE:	December 27, 2018
ORDER
Entitlement to service connection for reactive airway disease (RAD) is denied.
Entitlement to service connection for obstructive sleep apnea (OSA) is granted.
Entitlement to service connection for headaches is granted.
FINDINGS OF FACT
1. The preponderance of evidence is against a finding that the Veteran’s current service connection for reactive airway disease (RAD) is related to his period of active duty. 
2. The Veteran’s sleep apnea was incurred during active service. 
3. The Veteran’s headaches are attributable to service-connected sinusitis and hypertension.
CONCLUSIONS OF LAW
1. The criteria for service connection for reactive airway disease (RAD) have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304.
2. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 
3. The criteria for service connection for headaches have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310. 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from June 1979 to April 1992 and from February 2003 to January 2004. 
The Veteran testified before the undersigned Veterans Law Judge during an August 2014 videoconference hearing.  
Service Connection
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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).
Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b).

Undiagnosed Illness
VA is authorized to compensate any Persian Gulf Veteran with a chronic disability resulting from an undiagnosed illness, or combination of undiagnosed illnesses, which became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more within a presumptive period following service in the Southwest Asia theater of operations during the Persian Gulf War. 38 U.S.C. § 1117. The Veteran is a Persian Gulf Veteran. 
A qualifying chronic disability as that which results from an undiagnosed illness, a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), or any diagnosed illness that VA determines in regulations warrants a presumption of service connection for infectious diseases. 38 U.S.C. § 1117; 38 C.F.R. § 3.317.
An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of illness. Id.
A medically unexplained chronic multisymptom illness means 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. 38 C.F.R. § 3.317(a)(2)(ii).
A medically unexplained chronic multisymptom illness means 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. 38 C.F.R. § 3.317(a)(2)(ii).
For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4).
If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. VAOPGCPREC 8-98.
Here, the Veteran’s respiratory symptoms and sleep disturbances have been medically attributed to diagnoses of RAD and OSA. Furthermore, the Veteran’s headaches have been attributed to his service-connected hypertension and sinus disabilities. Therefore, they are not undiagnosed illnesses. Further, it is not a medically unexplained chronic multisymptom illness because it is not characterized by overlapping signs and symptoms. Therefore, presumptive service connection under 38 C.F.R. § 3.317 is not warranted.
Although the Veteran is not entitled to a regulatory presumption of service connection for his OSA, RAD, and headaches, the claims must be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994), rev’d in part, Combee v. Principi, 4 Vet. App. 78 (1993).

Combat Presumption
In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. The incurrence or aggravation may be rebutted by clear and convincing evidence to the contrary. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The standard used to determine whether a veteran engaged in combat with the enemy is reasonable doubt, which is to be resolved in a veteran’s favor. See VAOPGCPREC 12-99. The provisions of 38 U.S.C. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine, 9 Vet. App. at 522-23. The provisions of 38 U.S.C. § 1154(b) do not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999).
Lay evidence can be competent and sufficient to establish a diagnosis when a layperson: (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010).
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, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (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. RAD
Service treatment records (STRs) for the Veteran’s first period of service include examinations dated in August 1978, May 1988, November 1989, and February 1992 in which the lungs were marked normal. During a February 1992 separation medical history report, the Veteran denied asthma, shortness of breath, and chronic cough. There is a treatment for a cold in April 1991 in which the diagnosis was upper respiratory infection. STRs are limited for the Veteran’s second period of active service. In a December 2003 pulmonary function test (PFT) showed normal lung function values. 
In a February 2007 post-deployment health assessment, the Veteran indicated he left the theater of operations in January 2004 and he returned to reserve status since return from deployment. He complained of chronic cough and denied difficulty breathing. 
Post-service VA treatment records show the Veteran enrolled in VA care in May 2004. At that time, his breathing was assessed using the Borg breathing scale. The assessment was zero. In a June 2004 note, he reported a cough since his return from the Middle East in December 2003. He denied any shortness of breath or history of asthma. The diagnosis was allergic rhinitis and he was prescribed Claritin and triamcinolone nasal spray. 
In an April 2006 reserve service examination, the examiner noted the lungs as normal. 
In a June 2009 VA progress note, the examiner noted the Veteran’s  reports of dyspnea on exertion with restrictive PFTs which were likely secondary to his morbid obesity. The physician stated that the Veteran has a known history of exposure to chemical irritants, but those were unlikely to be related to the Veteran’s reactive airway disease (RAD) given clinical presentation. Typically, acute on presentation and PFTs with obstructive patterns; however, if the Veteran’s develops fibrosis he could develop mixed pattern with restriction. However, his DLCO was within normal limits and is not consistent with ILD. Other etiologies could include pulmonary hypertension, diastolic/systolic dysfunction and Sarcoid. Restrictive pattern could to be secondary to obesity and well as symptoms secondary to OSA.
During a February 2009 VA respiratory examination, the Veteran reported he gets “winded easily,” and he has history of coughing and wheezing since 2004. He reported dyspnea on moderated and severe exertion. He also reported a history of abdominal swelling. He denied a history of asthma. The examiner referred to a January 2009 PFT which showed moderate restrictive impairment with no bronchodilator response. Lung volumes were reduced revealing restrictive ventilatory impairment. The diagnosis was reactive airway disease of unknown etiology. 
In an April 2009 VA opinion, the examiner reviewed the claims file and determined the Veteran’s RAD, found in the February 2009 VA examination, is less likely as not due to his in-service complaints. The examiner noted that review of his STRs was absent for any documentation for reactive airway disease. Although he had bronchitis in 1999 after discharge from service, bronchitis is an obstructive airway disease. RAD is related to asthma and there was no documentation in his STRs for either asthma or reactive airway disease. 
During a May 2010 Decision Review Officer hearing, the Veteran stated that he did not seek treatment in service for his respiratory problems. 
In an August 2011 substantive appeal, the Veteran asserted his RAD was due to the chemical and environmental exposures in Kuwait. 
In a letter dated in August 2013, A. Z., also stated that the environment in Kuwait was dusty and included dust from a concrete plant with an overhead conveyer system that ran over head of the pier area where they frequently worked in. Additionally, surrounding petroleum plans had occasional releases of hydrogen dioxide resulting from the hydrocarbon cracking process. 
During an August 2014 Board hearing, the Veteran asserted his breathing problems began in service. He stated that when he got back, he reported his problems to the VA and he underwent a PFT. He takes two medications and he was recently diagnosed with pulmonary hypertension. The Veteran asserted this is all due to Gulf War illness. 
The Veteran provided a Respiratory Disability Benefits Questionnaire (DBQ) dated in December 2014. The examiner noted diagnoses of pulmonary hypertension, restrictive lung disease, and lung nodule solitary, all with the date of diagnosis in July 2014. The examiner stated the Veteran’s respiratory system disorder started in 2007. 
During a September 2017 Respiratory DBQ, the Veteran claimed his respiratory condition started on or about 2003 while in Iraq. The Veteran claimed that the dust and chemicals he was exposed to caused breathing problems while in Iraq. The examiner noted a diagnosis of restrictive lung disease since 2009. The examiner noted the Veteran has been diagnosed with restrictive lung disease and currently doctors have not been able to determine the cause. 
In an August 2018 addendum, the examiner noted that RAD is due to reaction to certain triggers specific to the individual; that is not known to be aggravated beyond is natural progression by any of the Veteran’s service-connected disabilities, including rhinitis and sinusitis. Rhinitis and sinusitis may episodically make nasal breathing more difficult, but there would be no permanent aggravation beyond the natural progression. 
The Veteran served in combat, and his account of what occurred during this service is presumed credible. However, assuming the credibility of the Veteran’s account of the in-service events, there is no competent medical evidence linking his respiratory disorder to service or complaints in service.
As noted, the reduced evidentiary burden of 1154(b) only applies to the question of service incurrence, and not to the question of either current disability or nexus to service, both of which generally require competent medical evidence. See Brock v. Brown, 10 Vet. App. 155 (1997); Beausoleil v. Brown, 8 Vet. App. 459 (1996).
No competent medical examiner has provided a nexus between the Veteran’s in-service environmental exposures and his existing RAD. In fact, multiple VA examiners have found the Veteran’s RAD was not incurred in or caused by active service or service-connected disability. The Veteran is not competent to offer an opinion as to the etiology of this type of medical condition due to the medical complexity of the matter involved. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Therefore, service connection is not warranted and the claim is denied.
2. OSA
The Veteran asserts that his obstructive sleep apnea (OSA) had its onset in service, and that his condition was diagnosed shortly after separation from active duty.
The record reflects a current diagnosis of OSA in May 2009. As such, the Board finds that a current disability has been established for purposes of determining service connection. Thus, the question becomes whether the disability is related to service.
While the Veteran’s service treatment records do not reflect a diagnosis of OSA, in a VA treatment record dated in June 2004, the Veteran reported his wife claims that he snores a night. 
During a May 2010 DRO hearing, the Veteran stated that when he got back from the war in 2004, he was not sleeping. He stated his wife said he would stop breathing at night. He never had that problem before, so he went to the VA and was diagnosed with sleep apnea. 
In April 2010, the Veteran’s wife submitted a statement that the since he returned from the war, the Veteran would snore loudly and a few times during the night he would stop sleeping for a few seconds. She stated she would stay awake most of the night to make sure he was breathing, and because the snoring was so loud he could not sleep anyway. 
During an August 2014 Board hearing, the Veteran testified that it was noted by some of his friends that had a breathing problem and that he started breathing like a tractor. He stated he did not have any medical facilities at the time to address this. In 2009, he was given a sleep study and they determined he had sleep apnea. The Veteran stated people had to shake him to wake him up because he would cough and would stop breathing. This has been happening since before he came back from the war. 
The Veteran submitted an OSA DBQ dated in December 2014. The examiner noted a diagnosis of obstructive sleep apnea and hypersomnia wince 2009. The examiner noted the Veteran also has sleep disturbance because of generalized anxiety. The Veteran’s history was reported as difficulty breathing at night, waking up gasping for air, and snoring loud since 2003. 
The Veteran was afforded a VA examination in September 2017. The Veteran stated his sleep apnea started on or about 2003. He stated that during the war he had trouble sleeping. He asserted that the chemicals he was exposed to along with the dust exposure caused a lot of breathing problems and congestion. He stated he started snoring loud in Iraq and his wife noticed when he returned that he would stop breathing while sleeping.  He stated he gained weight with the use of steroids for his breathing problems and feels that could have contributed to his sleep apnea. The examiner noted the Veteran’s STRs are silent for sleep apnea. The Veteran has become more obese since leaving service in 2009 when he had the sleep study done. Obesity and large neck are the biggest causes of sleep apnea. It is not likely the Veteran has sleep apnea due to exposure in Kuwait in 2003 to sand, dust or other particulates. The examiner’s research found it is unlikely to have a chronic change in health due to high levels of particulates in Kuwait in 2003. 
The Board finds the Veteran’s statements highly probative. Specifically, the Board notes the Veteran and his wife are competent to describe to describe the observable symptoms of sleep difficulties, including when they began, and they are competent to report the Veteran’s snoring and intermittent breathing. See Layno v. Brown, 6 Vet. App. 465 (1994). Further, the Board has no reason to doubt the veracity of such statements, particularly considering the medical evidence of record supports such statements. Thus, their statements regarding the onset of his symptoms are highly probative.
The Board notes the only medical opinion as to the etiology of the Veteran’s OSA is the September 2017 VA examination. However, the Board affords this opinion to be of limited probative value as the examiner rested the negative nexus opinion on the lack of medical evidence in the Veteran’s service treatment records and weight gain before the 2009 sleep study. However, VA treatment records show there is only a weight difference of 15lbs between the July 2004 VA progress note and a June 2009 VA progress note. Furthermore, the examiner failed to take into consideration the competent lay statements of the Veteran and his spouse regarding the onset of the Veteran’s symptoms. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). 
Consequently, resolving all doubt in the Veteran’s favor, the Board finds that the Veteran’s OSA had its onset in active service. Accordingly, service connection is warranted. 
3. Headaches
The Veteran asserts that his headaches are secondary to his service-connected hypertension and/or sinusitis, or environmental exposures in Iraq. 
STRs for his first period of service include a single complaint of headaches in May 1991. As noted above, there are no relevant records from his second period of service. 
Post-service treatment records do not show complaints of headaches until the June 2009 VA examinations. In a June 2004 VA progress note, the Veteran denied recurrent headaches. In October 2009, the Veteran reported headache due to stress at work. In a September 2010 note, the Veteran complained of headaches with occipital tension. In an August 2015 note, the Veteran complained of frequent headaches.
In a May 2007 post-deployment health assessment, the Veteran denied headaches. 
The Veteran underwent VA examinations in February 2009. In a hypertension examination, the examiner noted the Veteran has a history of headaches related to hypertension. During a neurological examination, the Veteran reported he started having headaches at the ethmoid and frontal sinuses since 2004. He stated he gets the headache at least once a week for the past two years. The examiner reported a diagnosis of headaches secondary to perennial allergic rhinitis and opined the Veteran’s headaches were less likely as not due to service as he had no documentation of headaches or headache symptoms. 
During a June 2012 VA examination, the examiner noted the Veteran has headaches attributable to chronic sinusitis. 
In a July 2013 private neuropsychological assessment report, the Veteran reported headaches since an injury in Iraq. 
During an August 2014 Board hearing, the Veteran testified that he believes his service-connected hypertension, sinusitis, PTSD, and sleep apnea exacerbate his headaches. 
The Veteran underwent a VA examination in September 2017. The Veteran claimed his headache condition started on or about 2003. He noticed that after an explosion, he started getting headaches. The Veteran reported his headache is daily and he was diagnosed with migraines. The examiner reported a diagnosis of tension headaches. The examiner opined the condition is less likely than not incurred in or caused by service. The examiner noted that the Veteran had no complaints in the STRs as to headaches. Therefore, there can be no determination that he has headaches due to service. It is also not likely that the Veteran has headaches due to exposure in Kuwait in 2003 due to sand, dust or other particulates. The examiner referred to research showing it is unlikely to have a chronic change in health due to high levels of particulates in this region. 
In an August 2018 addendum, the examiner also reported that tension headaches are not known to be aggravated beyond its natural progression by any of the Veteran’s service-connected disabilities including rhinitis and sinusitis. Tension headaches may episodically make the headache feel worse, but there would be no permanent aggravation of tension headaches beyond its natural progression. 
The February 2009 VA examiner opined the Veteran’s headaches were not incurred during service as there were no complaints of headaches in service. Even if this were accurate, the February VA examiner also found the Veteran’s headaches were related to his hypertension and sinusitis. The September 2017 VA examiner indicated his headaches were not due to service-connected sinusitis or rhinitis, but failed to address whether his headaches are secondary to service-connected hypertension. In this case, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s headaches are proximately due to, or the result of, a service-connected disease or injury. Consequently, resolving all doubt in the Veteran’s favor, the Board finds that the Veteran’s headaches are secondary to service-connected disability. Accordingly, service connection is warranted.
 
Matthew Tenner
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Diane M. Donahue Boushehri, Counsel 

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