Citation Nr: 21069781 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 14-26 949 DATE: November 19, 2021 ORDER Entitlement to service connection for a respiratory disorder is denied. Entitlement to service connection for an acquired psychiatric disorder is denied. FINDINGS OF FACT 1. The Veteran does not have a respiratory disease. 2. A psychiatric disorder was not manifest in service and is not attributable to service. CONCLUSIONS OF LAW 1. A respiratory disease was not incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 2. An acquired psychiatric disorder was not incurred in or aggravated by service. 38 U.S.C. § 1110, 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to November 1970.These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. During the appeal, jurisdiction transferred to the RO in Salt Lake City, Utah. The Veteran testified at a May 2015 Board video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. During the May 2015 Board hearing, the undersigned Veterans Law Judge clarified the issues on appeal, identified potential evidentiary defects, and clarified the type of evidence that would support the Veteran's claim. The actions of the Veterans Law Judge supplement the Veterans Claims Assistance Act (VCAA) and comply with any related duties owed during a hearing. See 38 C.F.R. § 3.103. The claims currently before the Board were remanded in June 2020 for further development. Service Connection Veterans are entitled to compensation if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, 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 -the so-called 'nexus' requirement." See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may 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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). 1. Entitlement to service connection for a respiratory disease The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997). "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability... in the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran claims that he incurred a respiratory disease in service, particularly noting observations of asbestosis by a private medical examiner. Service treatment records do not identify a respiratory disease. A chest x-ray was conducted in September 1970, but no other observations within the medical file were recorded. The Veteran's October 1970 separation examination clinically evaluated the Veteran's lungs and chest as normal. An interpretation of an X-ray film was WNL, within normal limits. Within the file, there is a note from June 1969- "Respiratory/Asbestosis - Naval Medical Research Unit Four, Great Lakes, Illinois 60088. Voluntarily participated in Medical Research Project Number MF 022.03.07-4018, Antiviral Drugs in the Prevention of Respiratory Disease in Naval Recruits. Permanent records of this study retained at this activity. No Physical or Psychological reactions were noted." The first observations of a potential respiratory disease appear in 2012. The Veteran reported coughing. In September 2013, the Veteran went to a private examiner and received a CT scan. The private examiner provided an impression of "Pleural asbestosis secondary to exposures in the Navy." The radiologist conducting the CT scan found that the lungs had minimal apical scarring. The radiologist also concluded that the Veteran was negative for pleural plaques or "other evidence of chronic asbestos exposure." The Veteran was afforded a VA examination in March 2021. The VA examiner noted that a chest x-ray was conducted in February 2021 which the examiner found had no radiographic evidence of acute pulmonary disease. The VA examiner found that no diagnosis of a respiratory disease was warranted. The Veteran received a subsequent CT scan in May 2021. The VA examiner wrote that "A new CT was warranted. CT of the Thorax without Contrast on 5/3/21 reports: "There is no significant abnormalities of the lungs or intrathoracic soft tissues to explain the patient's shortness of breath." The VA examiner again concluded that no diagnosis was warranted. A review of the medical evidence does not reveal a respiratory disease. As a result, the Veteran does not have a respiratory disease and has not had such a diagnosis or disability at any time during the claims period. McClain, supra. In the absence of a disability, compensation may not be awarded. In the absence of evidence of a current disability, there can be no grant of service connection under the law. See Brammer, supra. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the March 2021 and May 2021 VA medical opinions that the Veteran does not have a respiratory disease as highly probative medical evidence on this point. The Board notes that the examiner rendered these opinions after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran's pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The Board finds these medical opinions to be highly probative as they are adequately supported by additional rationale. The examiner thoroughly reviewed the Veteran's service treatment records as well as his past medical history. The Board may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). Here, the Board notes the September 2013 private examiner's medical opinion and finds it to be of low probative value. While the private examiner seems to identify asbestosis, he merely identifies it as an impression. Furthermore, medical documentation from a radiologist at his practice not finding signs of a respiratory disease contradicts the doctor's possible claim of asbestosis. As such, the VA's medical opinions from 2021 outweighs the September 2013 private examiner's findings. The Board has considered the lay statements of the Veteran regarding the Veteran's respiratory disease. The Veteran is competent to provide evidence of what he experiences, including his symptomatology and medical history. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is competent to report what he experienced or what he has been told by a professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board does not find his statements to be as probative as the VA examiner's opinion, which was based on extensive review of the record, thorough examination, consideration of the lay statements, and the VA examiner's medical expertise. The most probative evidence establishes that the Veteran does not have a respiratory disease. Although there appears to be a conflict between a private examiner and VA examiner, the more convincing evidence establishes that he does not have a disease or a respiratory disability. In sum, the Board finds that the preponderance of the evidence is against the claims of entitlement to service connection for respiratory disorder. The Board finds that the preponderance of the evidence is against the claim and the claims must be denied. 2. Entitlement to service connection for an acquired psychiatric disorder The Veteran claims that he incurred an acquired psychiatric disorder due to service. The Veteran's medical record indicates that he was severely threatened by another service member who stated that he would throw the Veteran overboard. The Veteran also reported that he witnessed a service member get tangled into an anchor chain and the service member went overboard. The Veteran believes the service member was killed in this accident. In his VA 21-0781, Statement in Support of Claim for PTSD, dated November 2018, the Veteran listed seeing a service member who died in his sleep in the next bunk. As a preliminary note, the Board notes that the Veteran has somnambulism, a disorder that is not related to service. Such a disorder is entirely separate from the acquired psychiatric disorder discussed in this claim. Service treatment records do not document any relevant treatment, complaints, symptoms, or diagnoses specific to an acquired psychiatric disorder that is separate from the somnambulism. A March 1970 medical record notes that there is no evidence the Veteran "has no history or current evidence of psychopathology." Clinical evaluation at the October 1970 separation examination found the Veteran's psychiatric system was "normal." The claim has been remanded twice for an adequate opinion regarding whether the Veteran's psychiatric disorder was related to service. The Veteran was afforded multiple VA examinations. The first relevant VA examination, June 2013, found that the Veteran has Generalized Anxiety Disorder (GAD) and depression. No nexus opinion was issued. A VA examination from December 2016 found that the Veteran had an "other specified trauma and stressor related disorder" and found it was at least as likely as not that it was related to service. The December 2016 VA examiner reasoned that he believed the Veteran's reports. An addendum medical opinion was produced in December 2019. The VA examiner noted that the acquired psychiatric disorder was due to the Veteran's experiences in childhood as well as the listed events in service. However, in an accompanying medical opinion for aggravation of a nonservice connected condition by a service-connected condition, the VA examiner could not establish a baseline. In an August 2020 addendum opinion, a separate VA examiner reviewed the Veteran's file. The examiner concluded that it was at least as likely as not that the Veteran's acquired psychiatric disorder was directly related to service. The examiner concluded that the Veteran's childhood and military traumas "are likely to have been cumulative it is unlikely to be possible to determine which trauma contributed more significantly." The examiner found that the psychiatric disorder "was at least as likely as not... caused by traumatic events in military service..." The examiner concluded that the Veteran's psychiatric disorder was not aggravated by his service-connected disorders. The examiner further clarified his findings in a March 2021 addendum opinion. In a final July 2021 addendum medical opinion, the VA examiner from December 2016 and December 2019 clarified that the acquired psychiatric disorder did not preexist service. With regard to the events the Veteran has described, the Board has provided him an opportunity to verify his stressors, specifically for the service member who he saw dragged overboard. A letter was sent to the Veteran requesting information, for verification purposes, regarding this incident in August 2016. The Veteran's representative subsequently responded that the Veteran had no further evidence to forward. The Board has a duty to assess the credibility and weight of the medical opinions provided to it. The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. In this case, the Board finds that the medical opinions of the December 2016, December 2019, August 2020, March 2021, and July 2021 hold low probative value. The Board notes that the Veteran's credibility is central to this case. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability subject or symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board concludes that the Veteran's statements regarding the claimed events are not credible. The witnessed event of the death of the service member has not been verified, despite requests from VA for the Veteran to provide information for verification. The Veteran testified that the servicemember who was killed during the accident was a friend of the Veteran but during the pendency of this appeal he has not provided the name of the servicemember. The Board also notes that in a November 2018 statement in support of claim he witnessed a bunkmate die in his sleep, yet the Veteran did not testify about this during his hearing or at any other time during his appeal. Finally, the Board has reviewed the Veteran's service personnel records and service treatment records. The records did not corroborate any of the Veteran's claims and he has provided no information that would allow for a meaningful search. The Board finds these inconsistencies to weigh against the Veteran's credibility as to the etiology of the claimed psychiatric disorder, however diagnosed. The Board concludes that while the Veteran has an acquired psychiatric disorder, it is unrelated to service. Here, there is no credible evidence of record with respect to the existence of an in-service event, injury, or disease between the Veteran's claimed psychiatric disorder and his service. More specifically, the claimed events are found to be not credible. Here, there is no proof of a psychiatric disorder during service or within proximity to separation. Rather, the psychiatric system was normal at separation. We are presented with remote diagnoses that appear to attribute the disorders to service. However, at times, the Veteran has changed the nature of the claimed events and his reports are not verifiable even when provided an opportunity to provide additional information. The fact that VA examiners may have believed that there had been events prior to and during service is not determinative. Credibility determinations rest with the Board. Furthermore, the Veteran does not have PTSD and the rules regarding PTSD are not controlling. We find that the Veteran is not a credible historian and a diagnosis based upon such history is equally not credible. The weight of the evidence reflects that the Veteran's GAD and depression are unrelated to his service. There is no probative evidence that these disorders are related (causation or aggravation) to his service or a service connected disease or injury. For the foregoing reasons, the preponderance of the evidence is against the claims for entitlement to service connection for an acquired psychiatric disorder. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonah Nelson, 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.