Citation Nr: 21067164 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-51 072 DATE: November 3, 2021 ORDER Entitlement to service connection for chest pain, irregular heartbeat, pounding in the chest, neck and ears is denied. Entitlement to service connection for a cervical spine condition is denied. Entitlement to service connection for left upper extremity peripheral neuropathy is denied. Entitlement to service connection for coronary artery disease is denied. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and bi-polar disorder, is denied. Entitlement to service connection for a respiratory condition, to include chronic obstructive pulmonary disease (COPD) or an asbestos-related lung disease, is denied. REMANDED Entitlement to service connection for a headache condition is remanded. Entitlement to service connection for bilateral sensorineural hearing loss (SNHL) is remanded. FINDINGS OF FACT 1. The competent evidence does not demonstrate that the Veteran currently has a diagnosable condition manifested by chest pain and irregular heartbeat as well as pounding in the chest, neck and ears, nor has he experienced such a condition during the pendency of the appeal or recent to the filing of the claim; moreover, while the Veteran may have diagnosed dyslipidemia and hypercholesterolemia, these are considered laboratory readings and not disabilities for VA compensation purposes 2. The competent evidence does not demonstrate that the Veteran currently has a diagnosable cervical spine condition, nor has he experienced such a condition during the pendency of the appeal or recent to the filing of the claim. 3. The competent evidence does not demonstrate that the Veteran currently has diagnosable left upper extremity peripheral neuropathy, nor has he experienced such a condition during the pendency of the appeal or recent to the filing of the claim. 4. The competent evidence does not demonstrate that the Veteran currently has diagnosable coronary artery disease, nor has he experienced such a condition during the pendency of the appeal or recent to the filing of the claim. 5. The competent evidence does not demonstrate that the Veteran currently has a diagnosable acquired psychiatric disorder, nor has he experienced such a condition during the pendency of the appeal or recent to the filing of the claim. 6. The preponderance of the competent medical evidence does not demonstrate that the Veteran has a respiratory condition that was incurred in service, manifested within a year of service, or is otherwise attributable to the Veteran's service. CONCLUSIONS OF LAW 1. Service connection for a condition manifested by chest and irregular heartbeat as well as pounding in the chest, neck and ears is not warranted. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. § 3.303. 2. Service connection for a cervical spine condition is not warranted. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. § 3.303. 3. Service connection for left upper extremity peripheral neuropathy is not warranted. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. § 3.303. 4. Service connection for coronary artery disease is not warranted. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. § 3.303. 5. Service connection for an acquired psychiatric disorder is not warranted. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. § 3.303. 6. Service connection for a respiratory condition is not warranted. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1963 to November 1966. He testified at a July 2021 videoconference hearing before the undersigned Veterans Law Judge. The Board notes that the Veteran submitted his formal appeal of both September 2018 statements of the case via a November 2018 VA Form 9 and requested the opportunity to present testimony at a hearing before a Veterans Law Judge. Both separate appeal streams were certified to be adjudicated by the Board; however, due to a clerical error, the claims of entitlement to service connection for a cold injury residual condition impacting the bilateral hands, a thoracolumbar spine condition, and a right knee condition were not maintained for continued appeal. As such, these three issues were not addressed during the July 2021 hearing. In acknowledgement of this error, these three issues will be adjudicated in a separate decision after the Veteran has been given the opportunity to present testimony in support of the claims during a new hearing before a Veterans Law Judge. That being said, the Board will proceed to adjudicate the remaining eight issues that were the subject of the July 2021 videoconference hearing. In view of the facts found, and to provide broader consideration on appeal, the Board has recharacterized the claim of entitlement to service connection for COPD as one for a respiratory condition, to include COPD and asbestos-related lung disease. Service Connection Entitlement to service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). At the outset, the Board acknowledges that the Veteran attributes several of his claimed disabilities to in-service injuries he experienced as a result of a motor vehicle accident. Specifically, during the July 2021 hearing, the Veteran asserted that his chest pain condition, cervical spine condition, left upper extremity peripheral neuropathy, and acquired psychiatric disorder were all directly attributable to the purported in-service motor vehicle accident and resultant injuries. In further support of his contentions regarding the occurrence of this injury, the Veteran submitted an April 2016 correspondence in which he detailed that the accident in question occurred while he was riding in a jeep during the time period in which he was stationed in Germany. The Veteran in May 2016 also submitted a VA Form 21-0781, Statement in Support of Claim for Service Connection for PTSD, wherein he also related that he was involved in a motor vehicle accident at some point in later 1965 or early 1966 and that he did not remember anything about the incident other than waking up in the hospital after the vehicle went over a cliff. After requesting further elaboration in July 2016, the Agency of Original Jurisdiction (AOJ) in August 2016 issued a memorandum reflecting a formal finding of there being a lack of information to verify stressors in connection with the Veteran's PTSD claim. In support of the determination that there was insufficient evidence to corroborate the Veteran's contentions regarding the incidence of the purported motor vehicle accident, the AOJ noted that the Veteran provided only the approximate date range that the accident occurred and could not produce any other evidence documenting the incident or clarifying where or when it could have occurred. The memorandum also indicated that the AOJ thoroughly reviewed the available service medical and personnel records but could not find any evidence to substantiate the Veteran's assertions. It is acknowledged that following the AOJ's issuance of the August 2016 memorandum finding insufficient evidence to corroborate the Veteran's purported PTSD stressors, the Veteran submitted an accident report dated in August 2016 on VA Form 21-4176, wherein he reiterated that the purported motor vehicle accident occurred at some point in late 1965 or early 1966 and that he did not remember any details of the accident after the jeep he was riding in fell off of a cliff and he woke up in a hospital. After engaging in its own independent review of the available evidence, the Board agrees with the AOJ's determination, as reflected in the August 2016 memorandum, that there is insufficient evidence to corroborate that the Veteran was involved in a motor vehicle accident in service that contributed to his claimed disabilities. There is no documentation of any motor vehicle accident or resultant treatment for any medical symptomatology that was attributed to a motor vehicle accident in service. Furthermore, while the Veteran did eventually reply to the AOJ's requests asking him for further evidence to substantiate the incidence of the purported motor vehicle accident, his statement on the August 2016 VA Form 21-4176 is entirely cumulative of his prior statements in support of his claim. As such, the Board finds that VA satisfied its duty to assist the Veteran in supporting his claim as the August 2016 memorandum reflects that the AOJ engaged in adequate developmental actions to attempt to find documentation of the purported motor vehicle accident. Accordingly, the Board concludes that the preponderance of the evidence is against a determination that the Veteran was involved in a motor vehicle accident as he contends, and, as reflected in the analysis below, his service connection claims cannot be substantiated as attributable to injuries he sustained as a result of this purported motor vehicle accident. 1. Chest pain, irregular heartbeat, pounding in the chest, neck and ears 2. Cervical Spine Condition 3. Acquired Psychiatric Disorder 4. Left Upper Extremity Peripheral Neuropathy 5. Coronary Artery Disease The Veteran seeks service connection for a condition manifested by a collection of symptoms, to include chest pain and irregular heartbeat as well as pounding in the chest, neck and ears. In addition, he seeks service connection for a cervical spine condition, left upper extremity peripheral neuropathy, coronary artery disease, and an acquired psychiatric disorder, to include PTSD and bipolar disorder. Without delving into the question of the potential etiology of these separately claimed conditions, the Board finds that the Veteran has never been diagnosed with a disability manifested by chest pain and irregular heartbeat as well as pounding in the chest, neck and ears for which service connection is available, and there is no evidence to suggest that such a diagnosis is appropriate. Similarly, the Veteran has never been diagnosed with a cervical spine condition, left upper extremity peripheral neuropathy, coronary artery disease, or an acquired psychiatric disorder. Accordingly, entitlement to service connection for all four claimed conditions must be denied. A review of available VA and private medical records does not reflect that the Veteran has ever been diagnosed with a condition manifested by chest pain and irregular heartbeat as well as pounding in the chest, neck and ear. The Veteran repeatedly denied experiencing any chest pain during regular outpatient visits at his local VA medical center. Similarly, VA and private medical records do not show any treatment for cervical spine symptomatology, left upper extremity peripheral neuropathy, coronary artery disease, or an acquired psychiatric disorder, to include PTSD and/or bipolar disorder. Of note, the Veteran has been receiving care for arthritis for several years through his local VA medical center, but he has never asserted that he experiences neck pain other than one isolated instance of neck pain rated as a one out of ten during a November 2012 outpatient evaluation. Moreover, he underwent a radiographic examination of his spine in May 2017 which showed low back degenerative joint disease but did not reveal any abnormalities of the cervical spine. The Board also highlights that the Veteran has repeatedly denied experiencing any psychiatric symptomatology on repeated depression and PTSD screens throughout his history of treatment at his local VA medical center, and no neurological or cardiovascular symptomatology has ever been noted on any of the regular health screenings administered at his local VA medical center. During the July 2021 hearing, the Veteran did not testify as to the current status of his claimed chest pain condition and focused primarily on the incurrence of the purported in-service motor vehicle accident. He was queried multiple times by his representative regarding his current treatment and he did not reply with any information regarding whether he actually received treatment for or had a diagnosis of a condition manifested by chest pain and irregular heartbeat as well as pounding in the chest, neck and ears. Similarly, when queried the Veteran acknowledged that he had never been diagnosed with a cervical spine condition, left upper extremity peripheral neuropathy, coronary artery disease, or an acquired psychiatric disorder, and did not specify what symptomatology, if any, he believed corresponded to any of these claimed conditions. The Board does acknowledge that the Veteran has been diagnosed with and received treatment for hypercholesterolemia and dyslipidemia during the appeal period. However, dyslipidemia and elevated cholesterol are not considered disabilities in and of themselves. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996). Service connection can only be granted for a disability due to disease or injury or caused or aggravated by service connected disease or injury. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b). In this case, although treatment records reflect elevated cholesterol characterized as dyslipidemia and/or hypercholesterolemia, given the position of VA with regard to the nature of dyslipidemia, and elevated cholesterol, the Board finds that both conditions are laboratory findings that manifest themselves only in laboratory test results and are not disabilities for which service connection can be granted. Specifically, with regard to the claimed left upper extremity peripheral neuropathy, the Board highlights that the Veteran has a separate claim for cold injury residuals impacting the bilateral hands; as noted above, that claim is part of a separate appeal stream and will undergo further development prior to any adjudication by the Board. The Veteran was afforded a September 2018 VA cold injury examination in support of that claim, during which he reported that his hands became numb in cold weather. He did not endorse experiencing any other neurological symptomatology, and the VA examiner did not set forth any diagnosis of a neurological condition. As for the claim seeking service connection for an acquired psychiatric disorder, the Board has already detailed that the Veteran submitted a May 2016 statement in support of the claim, and a June 2016 memorandum found that there was insufficient evidence to corroborate that statement. The Board has also considered this case in light of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In Saunders, the United States Court of Appeals for the Federal Circuit (Federal Circuit) concluded that "pain is an impairment because it diminishes the body's ability to function, and that pain need not be diagnosed as connected to a current underlying condition to function as an impairment." Id. at 1364. "[A] physician's failure to provide a diagnosis for the immediate cause of a veteran's pain does not indicate that the pain cannot be a functional impairment that affects a veteran's earning capacity." Id. at 1367. Ultimately, the Federal Circuit in Saunders held that, to establish the presence of a disability, a veteran will need to show that his or her pain reaches the level of functional impairment of earning capacity. Id. at 1368. That having been noted, the Board finds the present case to be readily distinguishable from Saunders. There is no documentation of a current condition manifested by chest pain in the record, and although the Veteran described experiencing chest pain during the July 2021 hearing, the Board highlights his repeated denials of a history of such pain during consecutive outpatient evaluations at his local VA medical center. Similarly, with regards to the cervical spine condition and the left upper extremity peripheral neuropathy, the Veteran has consistently denied experiencing any pain or other symptomatology corresponding to either condition. The Board further notes that the Veteran himself does not have the medical training or credentials to offer an opinion as to a diagnosis or its etiology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has not been afforded an examination in connection with his claim seeking service connection for any of the five conditions addressed here, but VA does not have a duty to provide one, as there is no indication that the Veteran even has a diagnosable condition manifested with such symptomatology that may be associated with his service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Accordingly, without supporting records, the Board concludes that the Veteran does not have a condition manifested by chest pain and irregular heartbeat as well as pounding in the chest, neck and ear and has not had the condition during the appeal period. Furthermore, the Board also concludes that the Veteran does not have and has not had during the appeal period a cervical spine condition, left upper extremity peripheral neuropathy, coronary artery disease, or an acquired psychiatric disorder. In the absence of competent supporting evidence, a VA examination also is not required. Service connection is denied for all five claimed conditions. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the preponderance of the evidence is against the Veteran's claims, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). 6. Respiratory Condition After a review of the claims file, the Board concludes that, while the Veteran has been diagnosed with asbestos-related lung disease, the preponderance of the evidence is against a determination that a respiratory condition began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (b), (d). A review of available service treatment records does not reflect any specific treatment for respiratory symptomatology. No respiratory abnormality was noted on the August 1966 separation examination or the associated August 1966 Report of Medical History. Post-service, VA medical records do not reflect any treatment for or diagnosis of a respiratory condition. Indeed, the Veteran repeatedly denied experiencing any respiratory issues during repeated health screens administered at his local VA medical center throughout the appeal period. The Veteran has submitted an August 2011 evaluation report prepared by a Dr. W.H.D., who apparently administered respiratory testing on the Veteran. That testing revealed restricted respiratory function. According to Dr. W.H.D., the Veteran had a history of unspecified "Significant Asbestos Occupational Exposure." Therefore, the doctor concluded that the Veteran likely had diagnosable bilateral asbestos-related lung disease. Dr. W.H.D. did not specify what exposures contributed to the diagnosed disease, nor did he indicate that the condition was in any way related to the Veteran's service. The Veteran asserted during his hearing that he was diagnosed with COPD at his local VA medical center in 2007. However, the Board's review of the record does not corroborate this account. Upon review of the record, the Board finds that the preponderance of the evidence is against a determination that service connection is warranted for a respiratory condition. The Board acknowledges that the Veteran has asserted that he has restricted breathing, and he is competent to testify as to his symptoms. Layno, supra. That being said, there must be a nexus between that condition and service, and the Board reiterates that the Veteran does not have the medical training or credentials to offer an opinion as to the etiology of his respiratory condition. Jandreau, supra. The Veteran has not been afforded an examination in connection with his respiratory condition, but VA does not have a duty to provide one here, as there is no indication that the condition may be associated with the Veteran's service. See McLendon, supra. He has not presented any competent evidence or testimony in support of the claim, and there are no records of the Veteran receiving a diagnosis of or treatment for a respiratory condition prior to 2011. There is simply no competent evidence to support that the condition is related to service. Accordingly, there is no duty to provide the Veteran with an examination to evaluate the etiology of his respiratory condition. As such, the preponderance of the evidence is against the claim of service connection for a respiratory condition on either a direct basis under 38 C.F.R. § 3.303(a) or based on continuity of symptomatology under 38 C.F.R. § 3.30(b). Furthermore, the lack of any potentially positive evidence also negates the possibility of granting the claim as otherwise attributable to service under 38 C.F.R. § 3.30(d). Consequently, the benefit of the doubt rule does not apply, and the claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND Service connection for headaches During the July 2021 hearing, the Veteran asserted that he experienced headaches daily at a severity of eight or nine out of ten. He has related these headaches to service. The Veteran is competent to observe headaches and has not been afforded a VA examination to date to address this claimed disorder. A remand for an examination is thus warranted. Service connection for bilateral SNHL The likely etiology of the claimed bilateral SNHL was evaluated in a September 2015 VA audiology examination. After administering audiometric testing which confirmed that the Veteran had sensorineural hearing loss bilaterally, the examiner opined that it was less likely than not that the bilateral SNHL was incurred in or was otherwise attributable to service. In support thereof, the examiner that the Veteran had normal hearing for VA purposes on both his entrance and separation examinations. The examiner also referred to medical literature suggesting that hearing loss due to acoustic trauma would not worsen once the trauma was ended. Unfortunately, the Board cannot rely on this etiology opinion, as the September 2015 VA examiner did not provide a sufficient rationale to support the findings. Specifically, the examiner did not explain why the presence of "normal" hearing at the time of separation is clinically significant in this inquiry, especially in light of the fact that service connection for a hearing loss disability may be awarded even if such disability did not manifest during service. See 38 C.F.R. § 3.303(d); see also Hensley v. Brown, 5 Vet. App. 155, 159 (1993). A new medical opinion that thoroughly explains why the Veteran's current hearing loss disability is, or is not, related to in-service acoustic trauma is needed. The matters are REMANDED for the following action: 1. Afford the Veteran a VA medical examination to address the nature and etiology of his claimed headaches. The examiner must review the claims file in conjunction with the examination, and must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that claimed headaches are etiologically related to service. All opinions must be supported by a rationale. 2. Provide the claims file to a qualified VA medical examiner in order to elicit an opinion as to the likely etiology of the Veteran's bilateral SNHL. A copy of the claims file must be made available to and reviewed by the examiner. Any clinical testing deemed necessary should be scheduled. After a review of the Veteran's claims file, to include his service treatment records, the examiner should determine whether it is at least as likely as not (an approximate balance of positive and negative evidence) that the Veteran's current bilateral hearing loss disability is related to his period of active duty service. If it is less likely than not that the Veteran's current hearing loss disability is related to his period of service, the examiner should discuss why this is the case, to include the clinical significance of any "normal" in-service hearing test results, as well as the presence or lack of permanent pure tone threshold shifts during service. The examiner must provide any and all opinions as to etiology in the form of a probability and must provide a complete rationale for any opinion express. The Veteran's lay contentions as to acoustic trauma must be considered in full. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.