Citation Nr: 19149062 Decision Date: 06/24/19 Archive Date: 06/24/19 DOCKET NO. 14-10 804 DATE: June 24, 2019 ORDER Service connection for a lung disability manifested by chest pain is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the evidence supports a finding that a currently diagnosed lung disability manifested by chest pain arose during active service and is etiologically related to active service. CONCLUSION OF LAW The criteria for service connection for a lung disability manifested by chest pain have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1117, 1131, 1137, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Air Force from November 1950 to November 1954. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an October 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In April 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is of record. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). As an initial matter, the Board notes the absence of some of the Veteran’s service medical records. They are thought to have been destroyed or damaged by a fire at the National Personnel Records Center (NPRC) facility in July 1973. In cases where records once in the hands of the government are lost or unavailable, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully resolving reasonable doubt in favor of the Veteran. O’Hare v. Derwinski, 1 Vet. App. 365 (1991). The Board recognizes that VA’s duty to assist, to provide reasons and bases for its findings and conclusions, and to consider resolving reasonable doubt in favor of the claimant is heightened. Milostan v. Brown, 4 Vet. App. 250 (1993); Moore v. Derwinski, 1 Vet. App. 401 (1991); O’Hare v. Derwinski, 1 Vet. App. 365 (1991). The Board’s consideration of the Veteran’s claim has been undertaken with that heightened duty in mind. The case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicholson, 19 Vet. App. 215 (2005) Service connection for a lung disability manifested by chest pain In general, service connection may be established for disability caused by disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be established for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d). To establish a service connection for a disability, a Veteran must show: (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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disability may be service-connected if the evidence of record shows that the Veteran currently has a disability that was chronic in service or that was chronic as defined by regulation with continuity of symptomatology demonstrated after service. 38 C.F.R. § 3.303(a), (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist 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. Furthermore, service incurrence will be presumed for certain chronic diseases if manifest to a compensable degree within the year after separation from active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the Veteran contends that a lung disability manifested by chest pain, is due to an injury incurred during active service. Specifically, the Veteran asserts that a current lung condition is the result of a July 1951 incident in-service where he incurred a spontaneous pneumothorax as a result of being in an aircraft that suddenly depressurized. The Board finds that a review of all competent evidence, to include service medical records, VA treatment records, and a VA examination, shows that when considering the claimed in-service injury, the current claimed disability is shown to be at least as likely as not the result of active service. Therefore, service connection is warranted for the claimed lung condition, to include chest pain, and the claim must be granted. The Veteran's service medical records show that the Veteran was hospitalized in 1951 for a spontaneous pneumothorax. The Veteran's separation examination from October 1954 shows that the Veteran had a history of hospitalization for spontaneous pneumothorax and occasional complaints of a pulling sensation in the right chest. On VA examination in February 2011, after review of the of the claims file and physical examination, the examiner opined that the likely cause for the Veteran's complaint of right chest wall pulling sensation was related to coronary artery bypass grafting which occurred after service in 1991 for a myocardial infarction. During the April 2019 Board hearing, the Veteran gave a detailed recount of the in-service event that caused the spontaneous pneumothorax. The Veteran also stated that, because of residuals from that injury, he avoided strenuous activity. The Veteran also acknowledged that he has increased pain and pulling in the right chest area when performing certain activities. The Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). However, the Board is required to assess the credibility and weight to be given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (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, (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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board acknowledges the Veteran’s assertions that the claimed current disability is related to a documented in-service injury. The Board has considered the Veteran’s lay statements. The Board finds the Veteran’s statements to be competent, credible, persuasive, and probative. The Veteran has credibly and consistently stated having a pain and pulling sensation in the right chest resulting in a small degree of functional impairment since separation from service. That pulling sensation is noted on the service separation examination. The Board is cognizant of a large gap in time of medical records containing complaints of a right chest pulling sensation as they are thought to have been destroyed or damaged by a fire at the National Personnel Records Center (NPRC) facility in July 1973. However, based on the evidence currently of record, the Board finds that the Veteran has consistently and credibly claimed to have a lung condition manifested by chest pain. In contrast, the Board has considered the February 2011 VA examination and finds it be credible and competent but of less probative value. The examiner stated that the likely cause for the Veteran’s complaint of a right chest wall pulling sensation was related to coronary artery bypass grafting which occurred after service in 1991 after a myocardial infarction. However, there is evidence in the record of the Veteran having a pulling sensation in the right chest prior to the 1991 myocardial infarction. Because the Veteran has credibly stated experiencing a pulling sensation in the right chest prior to the 1991 myocardial infarction and the Board accepts his story as credible, the Board assigns the February 2011 VA medical opinion little probative value. The Veteran has complained of a right sided pulling sensation in his chest that causes some small degree of functional impairment beginning since his in-service spontaneous pneumothorax. The February 2011 VA medical opinion failed to account for the presence of this complaint prior to the 1991 myocardial infarction. Accordingly, the Board finds that the evidence is at least in equipoise to establish that a current lung disability manifested by chest pain, is related to the Veteran's in-service injury. Therefore, resolving all reasonable doubt in favor of the Veteran, service connection for lung disability manifested by chest pain is warranted. Thus, the claim is granted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mondesir, 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.