Citation Nr: 21068293 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 17-66 612 DATE: November 9, 2021 ORDER Entitlement to service connection for coronary artery disease (CAD) is denied. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's CAD manifested during or is otherwise causally related to active service, to include as due to exposure to asbestos or asbestos products therein. 2. The preponderance of the evidence is against finding that the Veteran's acquired psychiatric disability, to include PTSD and depression began during active service, or is otherwise causally related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for coronary artery disease (CAD) have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for establishing entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active-duty service with the United States Navy from May 1987 to May 1991. In a December 2017 substantive appeal, the Veteran requested a video conference hearing. In July 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. As a preliminary matter, the Board recognizes that the Veteran's claim was originally filed as one of entitlement to service connection for PTSD. However, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental health disability that could reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. As such, as reflected on the first page of this decision, the Veteran's claim has been rephrased as entitlement to service connection for an acquired psychiatric disability, to include PTSD and depression. Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2020). Copies of compliant VCAA notices were located in the claim's file. VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection, generally Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active-duty service. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. §§ 3.303 (a), 3.304 (2020). Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical 'nexus' requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (a) (2020). Furthermore, 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. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2020); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue. 1. Entitlement to service connection for coronary artery disease (CAD) The Veteran contends that he has CAD as causally related to his active service, to include as due to asbestos exposure therein. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of CAD (asymptomatic) s/p myocardial Infarction (MI) with stent placement, the preponderance of the evidence is against finding that the condition began during active service, or is otherwise related to an in-service injury, event, or disease. As a preliminary matter, the Board observes that the Veteran's official military occupation was listed as Damage Control maintenance man. That role has been associated with minimal risk of exposure. Accordingly, asbestos exposure is not conceded. Review of service treatment records are largely silent for complaints of chest pain, heart palpitations, or a diagnosis of CAD. In an asbestos medical surveillance program questionnaire dated May 1987 and December 1990, the Veteran denied exposure to asbestos or asbestos products prior to enlistment or at any point during his naval career. In March 1989, the Veteran reported chest pain, which included shoulder pain with tenderness on the bilateral lower chest. An onset of symptoms followed a workout at the gym. The Veteran was cleared for physical training. At separation, a report of medical examination found no evidence of disqualifying defects in March 1991. In a corresponding report of medical history, the Veteran denied any experience with chest pain, palpitations or pounding heart. In November 1989, the Department of the Navy issued a letter of commendation to the Veteran for outstanding performance. The notification letter indicated that the Veteran was stationed aboard the USS Wabash from April 15 through July 28, 1989. Post-service treatment records confirm a current diagnosis of CAD. In November 2013, the Veteran was evaluated for chest pressure to the right sternum associated with progressive dyspnea with minimal exertion. A prior history included s/p MI with coronary stent placement in 2009 or 2010. A provisional diagnosis of CAD and dyspnea with exertion was indicated. Prescribed medications include Clopidogrel. Additionally, treatment in November 2013 reflects that the Veteran was seen for complaints of shortness of breath, particularly associated with exertion. He reported that these symptoms had their onset approximately 15 years earlier. This was associated with a "squeezing type pressure" to the right sternum. The Veteran offered his own opinion that he did not think his symptoms were related to his previous heart attack, but rather, that he "may have been exposed to asbestos." An echocardiogram, dated December 2013, revealed normal functioning in the left and right ventricle. Normal wall thickness, motion and chamber sizes were also documented. No significant valvular abnormality was indicated. The previous diagnosis of CAD was deemed asymptomatic. During a Board hearing in July 2021, the Veteran testified that he was stationed aboard a ship that was covered with asbestos. Reportedly, the ship was commissioned in 1972, prior to a ban on use of asbestos. Since separation, he reportedly suffered two heart attacks. An onset of fatigue and weakness was reported at the age of 45. The Veteran suggests that his heart-related symptoms are likely related to exposure to asbestos during active service. The Board observes that the Veteran has not been afforded a VA examination in this case. In determining whether the duty to assist requires that a VA medical examination be provided, or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. In this case, a medical examination would serve no useful purpose, since the requirement of an in-service disease or injury to establish a service connection claim cannot be met upon additional examination. The Veteran was not prejudiced by the lack of VA examination. While the Board recognizes the Veteran's subjective belief that his current diagnosis of CAD (asymptomatic) s/p MI with stent placement is causally related to service, as a lay person, he has not shown to possess the specialized training and experience required to provide such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of his heart condition are matters not capable of lay observation and require medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his heart condition is accorded little probative weight. Moreover, even if the Board were to presume that the hull of the USS Wabash contained asbestos, the Veteran's official military occupation was associated with a low probability of asbestos exposure. Further, in multiple medical surveillance questionnaires, the Veteran denied exposure to asbestos in performance of his official duties during active service. Lastly, the record contains no evidence of a diagnosis of asbestosis, an asbestos related condition or a statement linking the Veteran's CAD to asbestos or military service otherwise. Accordingly, his lay assertions regarding asbestos exposure and in-service causation are not deemed credible. While the Board recognizes the Veteran's subjective belief that his CAD s/p MI with stent placement are causally related to active service, to include as due to asbestos exposure therein, the record contains no evidence that he was exposed to asbestos. Furthermore, there is no competent evidence suggesting that a current disability of CAD is at least as likely as not related to any reported asbestos exposure. Finally, there is no service records suggesting any complaints or treatment related to the heart or shortness of breath and there is no competent and credible evidence otherwise linking the Veteran's CAD to his military service. Accordingly, the Board finds that the preponderance of the evidence is against the claim of service connection for CAD s/p MI with stent placement. As the preponderance of the evidence is against the claim for service connection for CAD s/p MI with stent placement, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107 (2012); 38 C.F.R. § 3.102 (2020). 2. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression The Veteran also contends that he suffers from an acquired psychiatric disability, to include PTSD and depression as causally related to active service. As discussed in more detail below, the preponderance of the evidence is against the claim. The question for the Board is whether the Veteran has a current disability that began during active service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of a psychiatric condition, the preponderance of the evidence is against finding that it began during or is otherwise causally related to active service. As a preliminary matter, the Board observes that the Veteran's claim was initially treated as a claim for service connection for PTSD. In a statement in support, dated April 2014, the Veteran reported that he was stationed aboard the USS Wabash while it was providing fleet support along the Indian Ocean. Reportedly, the ship was targeted by an Iraqi aircraft for over 5 hours. The event reported occurred on or about September 1989. An administrative decision, dated September 2014, indicated that the Joint Services Records Research Center (JSRRC) conducted an extensive search of military records, to include deck logs and command histories. Command histories submitted by the USS Wabash failed to document or confirm contact with an Iraqi Aircraft or indicate that the ship was deployed to the Persian Gulf in 1989. Further, there are no documented distress calls regarding an Iraqi aircraft from the USS Wabash. Therefore, the Veteran's alleged stressor could not be corroborated or verified. Further, service treatment records are silent for complaints of depression, nervous trouble, or excessive worry. At separation, no disqualifying defects were identified. Post-service treatment records show that the Veteran underwent an initial mental health assessment in March 2019. During the clinical interview, he reported struggles with depressive symptoms dating back to separation from active service. Current symptoms include stress over life circumstances, excessive worry, poor focus and concentration. At the age of 45, he suffered a heart attack. Over the past 5 years, the Veteran reported increasing work-related stress, anxiety, and problems coping within the workplace, particularly after a change in management. To manage the stress, he acknowledged calling in sick and reported bouts with panic attacks or shutting down. Due to his current symptoms, the Veteran resigned from his job in hospital maintenance in January 2019. Prior to that time, he worked in the same role for 15 years. Presently, the Veteran's wife works full-time and provides for the household, financially. The diagnostic impression suggested generalized anxiety disorder and moderately severe depression. In July 2021, the Veteran testified at a Board hearing. Specifically, he contends that he was stationed aboard a ship attached to an auxiliary oiler that was maneuvering in the Indian Ocean during Operation Praying Mantis. Auxiliary oilers carry fuel for battlegroups and ammunition for aircraft carriers. He described the ship as "a floating bomb." According to the Veteran, an Iraqi aircraft targeted the ship at 3-am in the morning. A fire fight was not specifically referenced or reported. Since separation, the Veteran contends that he awakens every morning around 3-am due to night sweats. He denied seeking treatment for mental health symptoms in service or for many years, thereafter. The Veteran reported seeking counseling at VA medical centers due to stress, anxiety and night sweats. He contends that states that he resigned from his position in hospital maintenance after 15 years due to symptoms including stress and anxiety. Other symptoms include re-experiencing, sensitivity to sound, social avoidance, mood swings, impaired focus and concentration. The Veteran acknowledged use of oral medications to treat his symptoms. On direct inquiry, he denied experiencing any changes in mood or sleep impairment within one year of separation. Post service, he endorsed heavy drinking while going through a divorce. The Board observes that the Veteran has not been afforded a VA examination in this case. In determining whether the duty to assist requires that a VA medical examination be provided, or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. In this case, a medical examination would serve no useful purpose in this case, since the requirement of an in-service disease or injury to establish a service connection claim cannot be met upon additional examination. The Veteran was not prejudiced by the lack of VA examination. The Board recognizes the Veteran's subjective belief that his psychiatric condition is causally related to active service, to include as due to the alleged stressor. However, the evidence of record does not support the Veteran's lay assertions. In fact, the Veteran's most recent lay testimony regarding Operation Praying Mantis involves the USS Samuel B. Roberts (FFG-58), which was maneuvering along the Arabian Gulf in April 1988. The ship was surveilling Iranian targets. At no time has the evidence revealed that the Veteran was ever stationed aboard the USS Samuel B. Roberts. Further, as noted above, command histories confirm that the Veteran was stationed aboard the USS Wabash between April 1888 and July 1989. During the stated period, the ship was never located in the Arabian Gulf. Accordingly, the Board concludes that the Veteran's statements regarding the alleged stressor are not credible. Although the medical evidence confirms current psychiatric diagnoses, the medical evidence does not relate such diagnoses to active service. Moreover, the initial complaints of treatment and psychiatric symptoms were documented in 2019. Prior to that time, screenings for depression and related symptoms were negative. CONTINUED ON NEXT PAGE Considering the above, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD and depression. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107 (2012); 38 C.F.R. § 3.102 (2020). B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Whitaker, 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.