Citation Nr: 18140448 Decision Date: 10/04/18 Archive Date: 10/03/18 DOCKET NO. 15-37 181 DATE: October 4, 2018 ORDER Entitlement to service connection for lung cancer is denied. REMANDED Entitlement to service connection for an acquired psychiatric condition (claimed as a mental health condition) to include post-traumatic stress disorder (PTSD) is remanded. Entitlement to service connection for a sleep disorder is remanded. FINDING OF FACT The Veteran does not have a current diagnosis of lung cancer. CONCLUSION OF LAW The criteria for service connection for lung cancer have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1978 to July 1987. In a letter dated December 2016, the Board granted the Veteran’s former attorney representative’s motion to withdraw pursuant to 38 C.F.R. § 20.608. In a pro se election form dated January 2017, the Veteran elected to proceed with his appeal pro se. The Veteran was not afforded a medical examination or opinion in regard to his claim for service connection for lung cancer. The Board finds that the absence of such an evaluation is not prejudicial to the Veteran’s claim, as he has not met the legal criteria to warrant an examination or opinion, and the present record provides sufficient evidence to decide the issue. VA’s duty to provide a medical examination or opinion is triggered when the record contains (1) competent evidence that the claimant has a current disability or persistent or recurrent symptoms of disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 C.F.R § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). With regard to the Veteran’s service connection claim for lung cancer, the only evidence of record is the Veteran’s lay assertion that he has lung cancer. Since the first McLendon element is not satisfied, VA does not have a duty to provide a VA examination in this case. See McLendon, 20 Vet. App. at 83.   II. Service Connection In this appeal, the Veteran seeks service connection for a lung cancer. For reasons set forth below, the Board finds that the Veteran’s claim of entitlement to service connection for lung cancer must be denied. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases will be presumed if the diseases manifest to a compensable degree within one year following active military service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). Regulations provide that service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as “chronic diseases” in 38 C.F.R. § 3.309(a). When considering evidence supporting a service connection claim, the Board must consider, on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (reiterating that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.”) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). 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 Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the veteran. See Masors v. Derwinski, 2 Vet. App. 181 (1992). In this case, the Veteran’s sole evidence that he has lung cancer is his initial May 2014 claim where he lists “lung cancer” as a claimed disability and a subsequent July 2014 correspondence where the Veteran states that he was recently diagnosed with a “terminal illness” without further elaboration. In order to be granted service connection, the evidence of record must show that a current disability exists. Service connection on either a direct or secondary basis cannot be granted without evidence of a current disability. 38 U.S.C. § 1102; 38 C.F.R. § 3.304. In this case, a review of the evidence in the claims file reveals a complete lack of documentation indicating that the Veteran has ever been diagnosed with lung cancer. Nor is there evidence in the claims file indicating symptomatology that could be associated with possible lung cancer. In light of the evidence set forth above, the Board finds that the preponderance of the evidence is against the Veteran’s claim. There is no evidence of record supporting a finding that the Veteran has, or ever has had, a diagnosis of lung cancer. Given the lack of a current diagnosis upon which service connection can be based, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for lung cancer, and the claim must be denied. Accordingly, as the preponderance of the evidence is against the claim for service connection, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Veteran provides lay statements in his July 2014 correspondence detailing possible symptoms of PTSD to include depression, anger, and flashbacks relating to an in service stressor of performing emergency repairs on a helicopter while in flight. See May 1986 Award; See also September 1986 Evaluation. And while the Veteran does not provide any more information regarding his claim for a sleep disorder, the Veteran’s sleep problems may be related to PTSD or other possible psychiatric disabilities. Since the Veteran is competent to provide evidence of these symptoms and there is an indication that they relate to an in-service event, the lack of competent medical evidence triggers the VA’s duty to provide a medical examination. 38 C.F.R § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. Please associate with the claims file any outstanding pertinent treatment records, including additional VA treatment records such as those that may have been created since the last such update of the virtual claims-file. 2. Thereafter, please arrange for a psychiatric examination of the Veteran to determine the nature and likely etiology of his psychiatric disabilities. The entire record (to include this remand) must be reviewed by the examiner in conjunction with the examination. Based on such review of the record and examination of the Veteran, the examiner should respond to the following: a) Please identify (by medical diagnosis) each psychiatric disability found, to include whether the Veteran has a diagnosis of PTSD; and b) Please identify (by medical diagnosis) each sleep disorder found (if separate from any psychiatric diagnosis); and c) As to each psychiatric disability and sleep disorder diagnosed, please opine as to whether it is at least as likely as not (a 50% or greater probability) related to the Veteran’s active service. The examiner should take as fact that while in service the Veteran performed emergency repairs on a helicopter while in flight, “in spite of extreme circumstances which might have led to catastrophic results” and “sav[ing] an eight-million-dollar aircraft and associated platoon equipment from total disaster.” See May 1986 Award and September 1986 Evaluation in STRs.   The examiner must explain the rationale for all opinions, citing to supporting clinical data as appropriate M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Herdliska