Citation Nr: 21068496 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 14-24 133 DATE: November 10, 2021 ORDER Entitlement to service connection for a disability manifested by chest pain is denied. REMANDED Entitlement to service connection for a low back disability is remanded. FINDING OF FACT The Veteran's disability manifested by chest pain is not related to an in-service injury, disease, or event. CONCLUSION OF LAW A disability manifested by chest pain was not incurred in active military service. 38 U.S.C. §§ 1101, 5107 (2012); 38 C.F.R. § 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1984 to February 1985. This matter comes before the Board of Veterans' Appeals (Board) from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Board issued a decision that denied the Veteran's service connection claims for a low back disability and a disability manifested by chest pain. The Veteran appealed the Board's April 2018 decision to the U.S. Court of Appeals for Veterans Claims (CAVC). In a September 2019 Memorandum Decision, CAVC vacated the Board's decision and remanded for readjudication consistent with the decision. In June 2020, December 2020 and April 2021, the Board remanded these claims for further development. Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present 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, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Factual Background and Analysis The Veteran's contends that he has a disorder manifested by chest pain that began while in service and continued to the present time. Notably, the Veteran's service treatment records reveal that in December 1984, the Veteran complained of a chest cold for the previous 3 days and he was assessed with a possible upper respiratory infection and bronchitis. A January 1985 service treatment record indicates that the Veteran complained of a chest cold for the previous 3 days. Upon examination, the physician reported that the Veteran's chest was congested and he had a slight whiteness in the back of his throat. The Veteran was assessed with slight bronchitis and stuffy sinuses. A February 1985 service treatment record noted that the Veteran complained of a head and chest cold for the previous 3 weeks with symptoms of coughing, sniffing, and congestion. The Veteran was assessed with an upper respiratory infection. A September 2006 private treatment record indicated that the Veteran denied chest pain. The Veteran underwent a VA examination in December 2012. He reported that he noticed pain on and off on the left side of his chest for the previous 2 years. He further reported that such pain radiated to his right shoulder and was not associated with activity. The Veteran denied dizziness, palpitations, and shortness of breath. Additionally, he noted that he had a history of hypertension for which he was not taking medication as he did not have a regular physician. Physical examination revealed that the Veteran did not currently have/was never diagnosed with a heart disorder. The VA examiner found that the Veteran's claimed chest pain was atypical and most likely a chest wall muscle/ligament strain and that such was not caused by or a result of his in-service chest congestion. The examiner reported that the physical examination did not reveal any chest congestion. In a March 2014 VA addendum medical opinion, the December 2012 VA examiner found that the Veteran did not have any chest congestion during his last VA examination and that his chest pain was not caused by or secondary to his in-service chest congestion. The examiner indicated that the Veteran's previous chest examination was normal with no chest congestion. An April 2014 private treatment record noted that, following a review of the Veteran's systems, he did not have chest pain or palpitations. The Veteran underwent a VA examination in May 2016. The examiner found that the Veteran did not currently have/was never diagnosed with a respiratory disorder. The examiner concluded that there was no evidence of recurrent treatments for chest pain/chest colds after 1985 as there was no evidence of any health care that the Veteran might have received between 2012 and 2016, except for a cardiac work-up in 2013 which was negative. Additionally, the examiner noted that at the time of the examination there was no evidence of any chest wall disorder, such as muscle strain, costochondritis, or chest cold. In an October 2016 VA addendum medical opinion, the May 2016 examiner found that the Veteran was not diagnosed with any chest disorder in both of his December 2012 and May 2016 VA examination reports. Additionally, the examiner indicated that the Veteran had 2 or 3 episodes of chest congestion with an upper respiratory tract infection while he was in service. The examiner explained that the Veteran was treated with Sudafed and Ampicillin and all episodes were resolved after such treatment. The examiner also noted that the Veteran had subjective complaints of chest pain in both of his VA examinations with no objective findings. In its September 2019 Memorandum Decision, the CAVC found that the Board had relied on inadequate VA examination reports when denying service connection for a disability manifested by chest pain in its April 2018 decision. Specifically, the Board noted that the May 2016 VA examiner gave an inaccurate characterization of the record when it found that the Veteran had "occasional chest colds" in service as 5 service treatment records in a 4-month span related to chest congestion with 4 of them diagnosing upper respiratory infections. The CAVC additionally noted that prior to the Board's April 2018 decision, the U.S. Court of Appeals for the Federal Circuit found that "pain in the absence of a presently-diagnosed condition can cause functional impairment" and "pain is a functional impairment because it diminishes the body's ability to function, and pain need not be diagnosed as connected to a current underlying condition to function as an impairment." Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). Per the June 2020 Board remand, the Veteran underwent a VA examination in October 2020. The examiner opined that it was less likely than not that the Veteran's chest disability was caused by or related to his active service, including his in-service complaints of chest congestion and/or in-service treatment for multiple upper respiratory infections. The examiner stated that the Veteran had symptoms of acute chest congestion and upper respiratory tract infections that were treated and resolved during service. The Board notes that the Veteran's service treatment records include 5 complaints of chest congestion (four of which were diagnosed upper respiratory infections) in a 4-month period of time. The examiner further stated that he was unable to locate documented evidence of a chronic condition of upper respiratory tract infections or chest congestion during service or in post-service treatment records immediately after the Veteran's discharge. The examiner concluded that the Veteran's current subjective chest pain complaints were most likely due to his nonservice-connected heart condition. However, the December 2020 Board remand determined that this examination was inadequate as the examiner did not explain what evidence would be required in order to determine that a chronic condition existed, did he explain how to characterize the Veteran's 5 in-service complaints of and treatment for chest congestion and upper respiratory infections and failed to address the Veteran's competent lay statements regarding in-service onset of chest pain that continued to the present, as directed in the June 2020 Board decision. Per the December 2020 Board remand instructions, the Veteran underwent a VA examination in January 2021. The examiner determined that it was less likely than not that the Veteran's disability manifested by chest pain was incurred in or caused by the claimed event, injury or illness. The examiner noted that during the Veteran's service, the chest pain related to the Veteran's upper respiratory infections and chest congestion were acute only. There was no evidence of chronicity of care and the symptoms were subjective only. The examiner also found that there was no evidence of chronic chest pain or congestion in the claims file to substantiate the Veteran's statements of chronic chest pain since leaving the service. The Veteran's current chest pains were consistent with his diagnosis of cardiomyopathy which occurred in February 2019 and were unrelated to service. However, as noted by the April 2021 Board remand, the January 2021 VA examiner relied almost solely on the lack of objective medical evidence of chronic disabilities. Notably, the examiner described these disabilities as "acute" in nature without further explanation as to how they resolved or whether any residual symptoms or effects may have worsened or persisted. Further, the Veteran's subjective report of symptoms were eschewed in favor of "objective' medical evidence of a chronicity of care, despite the Board's prior guidance. Per the April 2021 remand instructions, the Veteran underwent a VA examination in June 2021. It was noted that the Veteran did not have a bone condition related to his chest pain. It was noted that the Veteran had no chest wall tenderness and no evidence of chronic muscle strain. The lungs were clear in all fields. The examiner noted that during service, the Veteran's chest pain was acute only as there was no evidence of chronicity of care and symptoms were subjective only. The examiner determined that it was less likely than not that the Veteran's disability manifested by chest pain was incurred in or caused by the claimed event, injury or illness. The chest pain documented in the service treatment records were consistent with chest wall pain (costochondritis) associated with upper respiratory infections which cause inflammation of the intercostal muscles. There was no objective evidence of any chronic chest pain diagnoses to provide evidence of a medical nexus In an August 2021 addendum opinion, the June 2021 VA examiner determined that the Veteran's claimed chest pain was most likely due to his cardiovascular conditions and less likely secondary to his service related chest pain secondary to chest congestion which had resolved during service after being treated with antibiotics and sudafed. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a disability manifested by chest pain is not warranted. Initially, the Board notes that there is a current diagnosis of a disability manifested by chest pain as the Veteran has chest pain. As noted by the CAVC in its September 2019 Memorandum decision, the current disability definition for VA compensation purposes is broad and includes functional impairment due to pain. Saunders v. Wilkie, 886 F. 3d 1356, 1367-68 (2018). Accordingly, the first element for service connection is established. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). The Veteran's service treatment records reflect that the Veteran had complaints of and treatment for chest congestion and upper respiratory disabilities in service. Specifically, the Veteran's service treatment records include 5 complaints of chest congestion (4 of which were diagnosed upper respiratory infections) in a 4-month period of time. Despite these complaints and diagnosis, the service treatment records were negative for any or diagnoses of any disability manifested by chest pain. The Board finds that the weight of the evidence is against a finding that a current disability manifested by chest pain is etiologically related to the Veteran's military service. In fact, the only medical opinions addressing the etiology of the claimed a disability manifested by chest pain weigh against the claim. As noted above, the June 2021 VA examiner on a June 2021 VA examination report and an in an August 2021 addendum opinion opined that it was less likely than not that the Veteran's current chest pain disability was incurred in or caused by the claimed in-service event, injury or illness. The Board affords the VA examiner's June 2021 and August 2021 opinions, which are supported by a detailed rationale and medical knowledge, great probative value. In forming her opinion, the VA examiner specifically discussed the Veteran's lay assertions regarding his chest pain disability while clearly acknowledging his lay statements regarding the in-service incurrence of this injury. Notably, the examiner specifically discussed the Veteran's complaints of and treatment for chest congestion and upper respiratory disabilities in service and the Veteran's competent lay statements indicating that his chest pain began in service and persisted to the present. The examiner found that the chest pain documented in the service treatment records were consistent with chest wall pain (costochondritis) associated with upper respiratory infections which cause inflammation of the intercostal muscles while also noting that that during service, the Veteran's chest pain was acute only as there was no evidence of chronicity of care and symptoms were subjective only. Additionally, the VA examiner also specifically indicated that the Veteran's current chest pain was a result of his heart disabilities which were not related to service. None of the competent medical evidence currently of record refutes this conclusion, and the Veteran has not presented any such existing medical evidence or opinion. In sum, the Board finds that service connection for a disability manifested by chest pain must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Board notes the Veteran's contentions regarding the etiology of his claimed disability manifested by chest pain. To the extent that the Veteran contends that a medical relationship exists between his claimed disability manifested by chest pain and his service, the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that a disability manifested by chest pain is not a disability subject to lay diagnosis as this diagnosis requires medical training. More significantly, the Veteran does not have the medical expertise to provide an opinion regarding the claimed disability manifested by chest pain etiology. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Additionally, the VA examiner provided detailed rationales in support of her opinions and cited to the relevant evidence. For this reason, the VA examiner's opinions are the most probative evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). Thus, the Veteran assertions that there is a relationship between his claimed disability manifested by chest pain and his service are not sufficient in this instance and are outweighed by other probative evidence of record. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, the Board finds that service connection for a disability manifested by chest pain must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND The Board finds that more development is necessary prior to final adjudication of the claim remaining on appeal. Notably, in its September 2019 Memorandum Decision, the CAVC found that the Board had relied on inadequate VA examination reports when denying service connection for a lumbar spine disability in its April 2018 decision. Specifically, the Board noted that while the May 2016 VA examiner noted that the Veteran had been seen on sick call for a back complaint after heavy lifting on February 22, 1985, it was unclear how the examiner determined how the Veteran's back disability had resolved as the Veteran was discharged 5 days after the February 22, 1985 sick call. The CAVC further found that the May 2016 VA examiner's conclusions were not supported by reasoned medical analysis. Per the June 2020 Board remand instructions, the Veteran underwent a VA examination in October 2020 where the examiner opined that it was less likely than not that the Veteran's lumbar spine disability was incurred in or caused by the Veteran's in-service low back pain and muscle spasms. However, in a December 2020 remand, the Board noted that the October 2020 VA examination was inadequate as the examiner did not acknowledge that the Veteran separated from service five days after the February 1985 sick call nor did the examiner provide any explanation as to how he determined that the Veteran's back spasms resolved as the evidence of record contains no service treatment records following the February 1985 sick call and no separation examination of record. The examiner also did not address the October 1984 in-service complaints of back pain nor the Veteran's competent lay statements regarding in-service onset of back pain that continued to the present. Per the December 2020 remand, the Veteran underwent a VA examination in January 2021. The examiner opined that it was less likely than not that the Veteran's low back disability was incurred in or caused by the claimed in-service event, injury or illness. However, in an April 2021 remand, the Board noted that while the January 2021 VA examiner the Veteran's in-service low back disability as "acute" in nature, there was no further explanation as to how it resolved or whether any residual symptoms or effects may have worsened or persisted. As a result, the Board again remanded this issue to specifically address the Veteran's complaints of lower back pain in October 1984 and February 1985 and the Veteran's competent lay statements indicating that low back pain began in service and persisted to the present. The Board specifically noted that if the examiner concluded that the Veteran's February 1985 low back pain resolved, the examiner was to explicitly explain how this medical conclusion was reached. Per the April 2021 Board remand instructions, the Veteran underwent a VA examination in June 2021. The examiner opined that it was less likely than not that the Veteran's low back disability was incurred in or caused by the claimed in-service event, injury or illness. The examiner noted that it was less likely than not that the Veteran's low back disability was the result of a lumbar strain in October 1984 as a strain involves muscle as a result of overuse and was usually acute that resolved without residuals. Since a chronic strain was very unusual, an orthopedic consultation documenting permanent pathology was recommended and this was not found. In an August 2021 addendum opinion, the June 2021 VA examiner found that the Veteran's low back pain was most likely secondary to degenerated changes in the lumbar spine and mild scoliosis and less likely to the in-service muscle spasm in February 1985 which had resolved while he was in service. Notably, while the VA examiner determined that it was less likely than not that the Veteran's low back disability was the result of a lumbar strain in October 1984 or the in-service muscle spasm in February 1985, the examiner again did not explicitly explain how the medical conclusion that the Veteran's February 1985 low back injury had resolved was reached. While the VA examiner addressed the October 1984 strain when noting that a strain involves muscle as a result of overuse and was usually acute that resolved without residuals, the examiner in the August 2021 addendum opinion did not specifically address how it was determined that the February 1985 injury had resolved. Again, as noted above, the Court in its September 2019 Memorandum decision determined that it was unclear how the May 2016 VA examiner determined how the Veteran's back disability had resolved as the Veteran was discharged 5 days after the February 22, 1985 sick call while the April 2021 Board remand specifically instructed the VA opinion to address how a conclusion that the Veteran's February 1985 low back pain had resolved had been reached. Thus, the June 2021 and August 2021 opinions do not adequately address whether the Veteran's current low back disability was related to service as instructed by the December 2020 and April 2021 Board remand instructions. As a result, there has not been compliance with the Board's December 2020 and April 2021 instructions. The United States Court of Appeals for Veterans Claims has held that a remand confers on the veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, this issue is once again being remanded to ensure compliance with the Board's December 2020 and April 2021 remand directives in order to determine whether the Veteran has a current low back disability that is the result of his service. The matters are REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. Return the claims file to a VA examiner with the appropriate knowledge and expertise. If the new examiner feels that an actual physical examination is necessary, such examination should be scheduled. The examiner should opine as to whether the Veteran's low back disability is related to an in-service injury, event, or disease. In formulating the opinion, the examiner should specifically address the Veteran's complaints of lower back pain in October 1984 and February 1985 and the Veteran's competent lay statements indicating that low back pain began in service and persisted to the present. The Board notes that if the examiner concludes that the Veteran's February 1985 low back pain resolved, the examiner must explicitly explain how this medical conclusion was reached. All opinions expressed by the examiner must be accompanied by a complete rationale. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder. 3. Ensure that the examination report complies with this remand and answers the questions presented herein. If any report is insufficient, it should be returned to the examiner for necessary corrective action, as appropriate. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.