Citation Nr: 1337657 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 07-36 635 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE 1. Entitlement to service connection for a disability manifested by shortness of breath as secondary to service-connected anxiety disorder. 2. Entitlement to service connection for a disability manifested by chest pain as secondary to service-connected anxiety disorder. 3. Entitlement to service connection for posttraumatic stress disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION This appeal was processed using the VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The Veteran, who is the appellant, served on active duty from September 2001 to June 2005. These matters are before the Board of Veterans' Appeals (Board) on appeal of a rating decision in May 2006 of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In April 2009, September 2010, and May 2013, the Board remanded the claims for further development. The September 2010 Board decision adjudicated the claims for direct service connection claims for disabilities manifested by chest pain and shortness of breath; the claims on appeal address a theory of secondary service connection. As the development with regard to the service connection claim for posttraumatic stress disorder has not been completed, this issue is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. A permanent physical disability manifested by chest pain, other than chest pain that is attributable to service-connected anxiety disorder or to service-connected gastroesophageal reflux disease is not shown. 2. A permanent physical disability manifested by shortness of breath, other than shortness of breath that is attributable to service-connected anxiety disorder, is not shown. CONCLUSIONS OF LAW 1. The criteria for service connection for a separate disability manifested by chest pain, except for the symptom of chest pain attributable to service-connected anxiety disorder or service-connected gastroesophageal reflux disease, have not been met. 38 USCA §§ 1110, 5107(b) (West 2002), 38 C.F.R. § 3 303 (2013). 2. The criteria for service connection for a separate disability manifested by shortness of breath, except for the symptom of shortness of breath attributable to service-connected anxiety disorder, have not been met. 38 USCA §§ 1110, 5107(b) (West 2002), 38 C.F.R. § 3 303 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim provide. Duty to Notify Under 38 USCA § 5103 a) and 38 C F R § 3 159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are (1) veteran status, (2) existence of a disability, (3) a connection between the veteran's service and the disability, 4) degree of disability and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the R.O. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre- and post- adjudication VCAA notice by a letters dated in July 2005 and June 2013. The Veteran was notified of the evidence needed to substantiate the claims of secondary service connection, namely evidence of current disability and evidence of a relationship between the current disability and a service-connected disability. The Veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies and that he could submit other records not in the custody of a Federal agency such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf. The VCAA notice included the general provisions for the effective date of a claim and for the degree of disability assignable. As for the content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim). As for the timing of the VCAA notice, to the extent there was pre-adjudication VCAA notice, the timing complied with Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication VCAA notice). To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured as after the RO provided content-complying VCAA notice, the claim of service connection was readjudicated as evidenced by the supplemental statement of the case in September 2013. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained the service treatment records and VA medical records. The Veteran was afforded a VA examination in October 2012 to determine whether the Veteran has separate, nonservice-connected disabilities manifested by chest pain and shortness of breath, attributable to service-connected anxiety disorder. As the opinion of the VA examiner is based on a review of the Veteran's history and as medical analysis was applied to the facts of the case to reach the conclusions rendered in the opinion, the opinion is adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding a medical opinion is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Principles and Theories of Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1110 (wartime service). Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, also referred to as the "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology after discharge is required where the condition noted during service is not in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). 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). Secondary service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disorder, or for increased in disability caused by a service connected disorder. 38 C.F.R. § 3.310(a). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). The Veteran does not argue and the record does not show that the claimed disabilities were the result of participation in combat with the enemy, and the combat provisions of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and from the weight of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curium, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the weight or probative value of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Evidence The service records show that the Veteran was assigned to a Navy fighter squadron as a maintenance technician, and the squadron was deployed to Southwest Asia from April 2003 to September 2003 aboard the U.S.S. Nimitz, which served in the Persian Gulf and the Arabian Sea. The Veteran's service medals and ribbons include the Navy Unit Commendation Medal, Global War on Terrorism Service Medal, Global War on Terrorism Expeditionary Medal, and Sea Service Deployment Ribbon. The service treatment records show that in October 2001 the Veteran complained of chest pain, shortness of breath, and a cough. After two weeks, the final assessment viral syndrome. In March and April 2002, the Veteran was evaluated of chest pain and shortness of breath. An electrocardiogram (EKG) showed a nondescript T-wave abnormality; otherwise the EKG was normal. Chest x-rays were also normal. No obvious etiology of the chest pain and of shortness of breath was found. The final assessment was anxiety with panic attacks. In July 2002, the Veteran complained of shortness of breath with aerobic exercise. There were no signs of respiratory distress, and chest x-rays showed no obvious signs of bronchitis or pneumonia. A pulmonary function testing was read as normal. From April to September 2003, the Veteran's squadron was deployed to Southwest Asia on the U.S.S. Nimitz. In a post-deployment health assessment in October 2003, the Veteran denied chest pain and breathing difficulty during the deployment. In May 2004, the Veteran complained of left-sided chest side discomfort, which appeared respiratory in nature. An EKG showed no acute changes. In January 2005, the Veteran denied having heart problems or shortness of breath. He indicated that he had exposure to respiratory irritants, namely, smoke, jet fuel, solvents, hydraulic fluid, and isocyanate. A chest x-ray was negative. A pulmonary function test was unremarkable. On separation examination, the Veteran gave a history of shortness of breath, but denied chest pain. Evaluation of the lungs, chest, and heart were normal. No chest or breathing abnormality was listed in the summary of defects and diagnoses. After service, private records show that in August 2005, in April 2006, in October 2006, in November 2006, in December 2006, in March 2007 and in August 2007 the Veteran was evaluated for chest pain or chest tightness, and on several occasions for shortness of breath. No cardiac or pulmonary cause for the symptoms was found. On several occasions, the symptoms were associated with anxiety or panic attacks. VA records show that in October 2005 the Veteran complained of panic attacks, during which he experienced chest tightness. X-rays showed that the lung fields were clear and that there was no cardiac enlargement. In October 2007, the Veteran complained of chest pressure. Chest x-rays revealed the lungs to be clear and the heart normal. In a September 2007 rating decision, the RO granted service connection for anxiety disorder, claimed as panic attacks. On VA examination in October 2012, the VA examiner stated that the Veteran's shortness of breath and chest pain were at least as likely as not due to or caused by the service-connected anxiety disorder, but noting that the Veteran's service-connected gastroesophageal reflux disease could also cause chest pain. The VA examiner stated that other potential etiologies for chest pain and shortness of breath, including cardiac or respiratory disorders, chest wall pain, and shingles, had been investigated and ruled out. Analysis On the basis of the service treatment records, in October 2001, the Veteran initially complained of chest pain and shortness of breath and the final assessment was viral syndrome. In March and April 2002, the Veteran was evaluated for chest pain and shortness of breath. An EKG and chest x-ray were normal. No obvious etiology of the chest pain and of shortness of breath was found. The final assessment was anxiety with panic attacks. In July 2002, the Veteran complained of shortness of breath with aerobic exercise. There were no signs of respiratory distress. Chest x-rays showed no pulmonary abnormality and a pulmonary function testing was read as normal. After deployment to Southwest Asia, the Veteran denied experiencing chest pain and breathing difficulty during the deployment. In May 2004, the Veteran complained of left-sided chest discomfort, which appeared respiratory in nature. An EKG showed no acute changes. In January 2005, the Veteran denied having heart problems or shortness of breath. On separation examination, the Veteran gave a history of shortness of breath, but denied chest pain. While the Veteran did complain of chest pain and shortness of breath on several occasions during service, there is no factual showing that the either chest pain or shortness of breath was derived from an in service injury or disease. Sanchez-Benitez v. Principi, 259 F. 3d 1356 (Fed. Cir. 2001) (pain alone fails as a claim for service connection without evidence of an in-service injury or disease to which the pain is connected). For this reasons, a permanent physical disability manifested either by chest pain or by shortness of breath was not affirmatively shown to be present during service, and service connection under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) is not established. Chest pain and shortness of breath alone without evidence of an underlying chronic disease is not a chronic disease listed under 38 C.F.R. § 3.309(a) and the theory of service connection based on chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply and service connection under 38 U.S.C.A. § 1110 as implemented by 38 C.F.R. § 3.303(b) (chronicity and continuity of symptomatology) is not warranted. See Walker v. Shinseki, 708 F.3d (Fed. Cir. 2013) (presumption of service connection for a chronic disease manifested during service applies only to enumerated chronic diseases under 38 C.F.R. § 3.309(a) and continuity of symptomatology avenue to service connection is available only for enumerated chronic diseases, 38 C.F.R. § 3.309(a)). As chest pain and shortness of breath alone without evidence of an underlying chronic disease is not a chronic disease under 38 C.F.R. § 3.309(a), there is no legal basis for presumptive service connection for chest pain or shortness of breathe as a chronic disease under 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307 and 3.309. As for service connection based on an initial diagnosis after service under 38 C.F.R. § 3.303(d), the Veteran as a lay person is competent to identify symptoms of chest pain and shortness of breath, which are in the realm of his personal experience and the Veteran as a lay person is competent to identify a simple medical condition. Jandreau v Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). A simple medical condition is one capable of lay observation. 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person). See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). While chest pain and shortness of breath are capable of lay observation, the question of the etiology of the symptoms is not a question that can be competently answered by the Veteran as a lay person based on mere personal observation, as the diagnosis of the underlying pathology falls outside the realm of common knowledge of a lay person, that is, not capable of lay observation, without specialized education, training, or experience. 38 C.F.R. § 3.159; Jandreau, at 1377. As the etiology of chest pain and shortness of breath is not capable of lay observation, the claimed disabilities are not simple medical conditions. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to diagnose the etiology of chest pain and shortness of breath. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (the Board may find that lay evidence to diagnose a disability is not competent evidence). Where, as here, there is a question of the etiology of chest pain and shortness of breath, which is not capable of lay observation, to the extent the Veteran's lay statements are offered as proof of the presence of an underlying disease, the Veteran's lay statements are not competent evidence and the Veteran's lay statements are not admissible as evidence. The Veteran as a lay person is also competent to report a contemporaneous medical diagnosis or to describe symptoms that later support a diagnosis by a medical professional. Jandreau, at 1377. Whereas here, the determinative questions involve a medical diagnosis not capable of lay observation or the claimed disabilities are not simple medical conditions, as here, competent medical evidence is required to substantiate the claims. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis or medical opinion. 38 C.F.R. § 3.159. And there is no competent medical evidence of a current diagnosis of a permanent disability manifested by chest pain or tightness or by shortness of breath. Also, there is no evidence of a contemporaneous diagnosis of a permanent physical disability manifested by chest pain or by shortness of breath since service. And there is no evidence that a health care professional has expressed the opinion that the Veteran has a permanent physical disability manifested by either chest pain or by shortness of breath derived from an in service injury or disease. As a permanent physical disability manifested by chest pain or by shortness of breath has not been diagnosed since service or currently, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To the extent that the Veteran has expressed the opinion that chest pain or shortness of breath are due to occupational and environmental exposure to irritants in the Persian Gulf, aboard ship, and around aircraft, which involves a question of causation, under certain circumstances a lay person is competent to offer an opinion on a simple medical condition. Davidson v.Shinseki, 581 F.3d 1313, 1316 Fed. Cir. (2009). Whether the chest pain or shortness of breath is caused by occupational or environmental factors cannot be determined by one's own personal observation without having specialized education, training or experience. 38 C.F.R. § 3.159. And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on whether the chest pain or shortness of breath is due to occupational or environmental factors is service. For this reason, the Board rejects the Veteran's opinion as competent evidence to substantiate the claims on the question of causation, that is, whether the symptoms were due to occupational and environmental factors in the Persian Gulf, aboard ship, and around aircraft. Since the Veteran served in the Persian Gulf the Board will address whether the Veteran has a qualifying chronic disability, which cannot be attributed to any known clinical diagnosis. 38 C F R § 3.317. The Veteran's symptoms began before his deployment to the Persian Gulf. Moreover, the evidence shows that although no physical cardiac or pulmonary injury or disease has been identified to explain the Veteran s symptoms, both Navy, private, and VA physicians have attributed the Veteran s symptoms to anxiety, panic attacks, or gastroesophageal reflux disease, and the Veteran is already service-connected for both anxiety disorder and gastroesophageal reflux diseases, known clinical diagnoses. The VA examiner expressed the opinion that the symptoms of chest pain and shortness of breath were related to the service-connected anxiety disorder, and could be a manifestation of service-connected gastroesophageal reflux disease. The Veteran himself attributes the symptoms to his service-connected anxiety disorder. Ands there is no separate, disability to which the symptoms are attributable. As the preponderance of the evidence is against the claims of service connection for a permanent disability manifested either by chest pain or by shortness of breath, and as the evidence reflects that the Veteran's symptoms of chest pain and shortness of breath are attributable to known service-connected disabilities, the benefit of the doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). (The Order follows on the next page.). ORDER Service connection for a permanent physical disability manifested by chest pain, other than s attributable to service-connected anxiety disorder and service-connected gastroesophageal reflux disease, is denied. Service connection for a permanent physical disability manifested by shortness of breath, other than symptoms attributable to service-connected anxiety disorder, is denied. REMAND On the claim of service connection for posttraumatic stress disorder, in September 2009, the Board directed development of the non-combat stressor, which has not been accomplished. Accordingly, the claim is REMANDED for the following action: 1. Ask the proper Federal custodian to search the logs of the U.S.S. Nimitz from May 6 to 12, 2003, and from July 3 to 9, 2003, while the ship was in the port of Jebel Ali, U.A.E., for the noncombat death of a sailor, who was a member of the ship's crew. If the records do not exist, or that further efforts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 2. If the non-combat stressor is corroborated, afford the Veteran a VA psychiatric examination by a VA examiner, who has not previously examined the Veteran. The examination should include the Clinician-Administered PTSD Scale (CAPS) test by a VA psychiatrist or psychologist. The VA examiner is asked to determine: a). Whether the Veteran has posttraumatic stress disorder, and, if so, b). Whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability of less than 50 percent) that posttraumatic stress disorder is related to the verified non-combat stressor. The Veteran's file must be made available for review. 3. After the above development is completed, adjudicate the claim of service connection posttraumatic stress disorder. If the benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case, and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs