Citation Nr: 1234967	
Decision Date: 10/09/12    Archive Date: 10/17/12

DOCKET NO.  09-31 046	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for a disability manifested by chest pain.

2.  Entitlement to service connection for a respiratory disability, claimed as asthma.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

J. M. Kirby, Counsel





INTRODUCTION

The Veteran served on active duty from June 1995 to September 2000 and from August 2002 to December 2003.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  

The above-captioned issues on appeal were remanded for the second time in the March 2012 Board decision so that a Supplemental Statement of the Case, readjudicating the issues on appeal in light of newly-submitted evidence, could be sent to the Veteran; this was accomplished in August 2012.  Accordingly, there has been substantial compliance with the March 2012 Remand, such that an additional remand is not required.  See Stegall v. West, 11 Vet. App. 268 (1998).  

The Veteran submitted additional evidence with his August 2012 statement in support of claim in the form of work-related evaluation reports and VA records of March 2012 pulmonary function testing, review of this evidence reveals that it is not pertinent to the issue adjudicated in the decision below, as it does not concern the Veteran's claim for service connection for chest pain.  Accordingly, review of that evidence prior to the Board's adjudication on the Veteran's appeal is not required.  

The issue of entitlement to service connection for a respiratory disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, D.C.


FINDINGS OF FACT

1.  The Veteran's service treatment records show that the Veteran first reported experiencing chest pain in March 1997, which was ultimately diagnosed as muscle strain, and later reported chest pain in his November 2003 report of medical assessment, but clarified that it had been only one episode and then resolved.

2.  A disability manifested by chest pain is not currently diagnosed.


CONCLUSION OF LAW

The criteria for service connection for a disability manifested by chest pain have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011).  A January 2008 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010).  Although a VA examination was not conducted with respect to the Veteran's claim for entitlement to service connection for a disability manifested by chest pain, the record did not present questions of medical fact requiring resolution such that a VA examination was warranted.  See 38 C.F.R. § 3.159(c); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

There is no indication in the record that any additional evidence, relevant to the issue adjudicated in this decision, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  

Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The Veteran has stated that he experiences chest pain that he asserts is related to his military service.  In his December 2007 claim, he asserted chronic chest pain as a disability, but did not indicated when it began or that he had received treatment for it.  His service treatment records show that he first reported experiencing chest pain in March 1997, describing it as sharp and noting that it began after lifting/moving heavy objects; muscle strain was diagnosed.  On a May 2000 report of medical history, the Veteran denied experiencing chest pain; the May 2000 service separation examination found no respiratory or cardiologic abnormalities.  A November 2003 report of medical assessment noted that the Veteran experienced chest pain but had not sought treatment for it; the examining physician noted that the had only one episode of chest pain which had since resolved.  In the November 2003 post-deployment questionnaire, the Veteran denied having chest pain during the deployment or afterwards.

After service, private treatment records dated from May 2004 to March 2007, in January 2008, from November 2009 to March 2010, and in May 2010 document treatment for migraine headaches and medications for a respiratory condition, specifically an albuterol inhaler.  These records do not reflect that the Veteran reported chest pain, or that chronic chest pain or a cardiovascular disability was diagnosed at any time during the appeal period.

Although the Veteran has asserted that he has experienced chest pain during the appeal period, the post-service evidence contradicts his assertions.  He repeatedly denied experiencing chest pain when asked during his treatment for migraine headaches, as noted in private treatment records dated in May 2004, March 2005, March 2007, November 2009 and March 2010.  For that reason, even though chest pain is a symptom that is observable by lay persons such as the Veteran, his allegations as to having that symptom are not credible.  This inconsistency calls into question the credibility of the Veteran's statements.  Compare Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) to Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (concluding that the Board may reject statements of a veteran if rebutted by the overall weight of the evidence).  For these reasons, the Veteran's claim for connection for a disability manifested by chest pain must be denied.

Thus, review of the evidence of record does not reflect a currently diagnosed disability manifested by chest pain.  As noted, the private treatment records do not reflect diagnoses of chest pain or a cardiovascular disability.  Further, pain alone (absent underlying diagnosed pathology) does not in and of itself constitute a disability for which service connection may be granted.  See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999).  Without competent evidence of a chronic disability, service connection for a claimed condition cannot be awarded.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed).

The preponderance of the evidence is against the claim.  There is no doubt to be resolved, and service connection is not warranted.  See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



ORDER

Entitlement to service connection for a disability manifested by chest pain is denied.


REMAND

The Veteran's service treatment records show that he denied a history of asthma on his November 1994 pre-service report of medical history and the November 1994 medical prescreening form, but in the May 2000 report of medical history at the end of his first period of service, reported a history of asthma as a teenager which had not reoccurred since.  The examining physician clarified that it had occurred during childhood but that that the Veteran had no problems at present, and the May 2000 service separation examination found no respiratory abnormalities.  In September 2002 and October 2002, the Veteran was seen for reported wheezing and shortness of breath during exercise, with a two month history of asthmatic-type symptoms; the assessment was exercise-induced bronchospasm.  A June 2003 service treatment record reflects a prescription for albuterol.  In his November 2003 post-deployment questionnaire, the Veteran reported having had difficulty breathing during his recent deployment, but not after; the examining physician noted that the Veteran had a history of asthma with occasional use of inhalers.

In the postservice period, the Veteran has alleged shortness of breath and other asthmatic symptoms.  A May 2010 work-related report notes that the Veteran's need to take breaks at work due to trouble breathing was being discussed; an undated VA treatment record, which appears to have been created at the time of the Veteran's April 2012 pulmonary function tests, reflects that he was prescribed an albuterol inhaler by VA medical professionals for respiratory symptoms.

The threshold for finding a link between current disability and service is low for the purposes of providing a medical examination.  Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  McLendon held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an in-service event, injury or disease, or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case.  McLendon, supra.

Because the record reflects treatment for asthma in service and prescriptions for medication to treat a respiratory disability after service, but no opinion stated as to the relationship between them, VA's duty to assist by providing a VA examination is triggered.  To the extent that the Veteran was scheduled for a VA respiratory examination in April 2012 and did not report for it, the Veteran's assertion that he did not receive notice of the examination due to a change of address appears to be confirmed by the documentation of record, especially as he did report for the April 2012 pulmonary function tests scheduled at a VA facility.

Additionally, a June 2003 service personnel record indicated that the Veteran's unit had been stationed at the White Sands Missile Range between August 2002 and June 2003, during which the radiation levels at the facility where he was stationed were measured.  All months in which the levels were monitored reflected normal levels of radiation, with one exception of November 2002 to December 2002 during which it was recorded as 0.007 mREM per hour, as compared to the normal level of the area as 0.03-0.05 mREM per hour and the limit for safe exposure as being 2 mREM per hour for civilian personnel (higher for personnel who are occupationally exposed).  During the examination on remand, this information should be considered and commented on.

Accordingly, the issue of entitlement to service connection for a respiratory disability is REMANDED for the following actions:

1.  Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any respiratory disorder found.  The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination.  All necessary tests should be conducted, including new pulmonary function tests (PFTs) if the PFTs from March 2012 are considered outdated or otherwise insufficient.  The examiner should describe and diagnose all current respiratory disabilities found to be present, then provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any respiratory disability is related to any inservice disease, event, or injury, including exposure to radiation as documented in the June 2003 memorandum discussed above.  The examiner must fully explain any opinions expressed, referencing current clinical findings and/or claims file documents as appropriate. 

2.  Notify the Veteran that he must report for the examination and cooperate in the development of the claim.  If a claimant does not report for a scheduled VA examination without good cause, it may result in denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2011).

3.  Readjudicate the issue on appeal.  If any benefit sought on appeal remains denied, issue an additional Supplemental Statement of the Case.  After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board.

No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  All claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).




______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs