Citation Nr: 21025328 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-33 541 DATE: April 27, 2021 ORDER Service connection for chemical poison is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for heart attack, claimed as due to an undiagnosed illness and/or environmental exposures, is remanded. Entitlement to service connection for a heart stent, claimed as due to an undiagnosed illness and/or environmental exposure, is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for prostate cancer, to include as due to chemical poison, is remanded. Entitlement to a disability rating in excess of 20 percent for service-connected low back injury with posttraumatic degenerative changes is remanded. Entitlement to a disability rating in excess of 20 percent for service-connected left lower extremity radiculopathy is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected irritant dermatitis is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected gout in the right foot is remanded. Entitlement to a disability rating in excess of 20 percent for service-connected left shoulder acromioclavicular separation status post-operative is remanded. FINDING OF FACT It is not shown that the Veteran has had, at any time during the appeal, a disability other than those that are already service-connected as related to or claimed to be related to his in-service exposure to chemical poison. CONCLUSION OF LAW The criteria for service connection for chemical poison have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Air Force from July 1978 to July 1998. In December 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A hearing transcript is of record. Service Connection 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, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). With any claim for service connection, it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The requirement that a current disability exists is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Without a current diagnosis, there may be no service connection for the claimed condition. 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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); Layno v. Brown, 6 Vet. App. 465, 469 (1994). With an approximate balance of positive and negative evidence on a relevant issue, VA resolves reasonable doubt in the claimant’s favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for chemical poison The Veteran contends that service connection is warranted for chemical poisoning which occurred during his service. At the December 2020 Board hearing, the Veteran testified to an incident during his military service where he was fueling his aircraft and accidently sprayed with jet fuel. He described being completely saturated with the fuel, including his face, which resulted in him breathing in and ingesting some of the fuel. Regarding the specific claim for chemical poisoning, the Veteran offered testimony that his eyes received the worst of the chemical poisoning. He reported still being treated for issues relating to his eyes, which gave rise to his service connection claim for chemical poisoning resulting from being sprayed in the face with jet fuel. The Board confirms the Veteran’s service treatment records (STRs) show he suffered from this incident involving the jet fuel in February 1992. See STRs. In fact, as was recognized by the Veteran’s representative and also explained to the Veteran at the December 2020 Board hearing, he is already service-connected for several residuals from this incident, including a bilateral dry eye syndrome and irritant dermatitis. The Veteran is also claiming service connection for prostate cancer, which he believes to be related to the in-service exposure to chemical poison, and that issue is addressed below. However, apart from testifying as to worsened symptoms related to the left eye, for which the Veteran was encouraged at the December 2020 Board hearing to file an increased rating claim, the Veteran has not identified any other disability that he believes to be related to the in-service chemical exposure. The Board understands the Veteran’s hearing testimony regarding the severity of the in-service incident he suffered; however, the fact that he has not identified a specific residual of this event for which he is not already service-connected for, or has already claimed as a service connection issue, leaves this claim for service connection for chemical poison as one of exposure and not a specific disability. In the absence of proof of a current disability for which service connection may be granted, there is no valid claim. See Brammer, 3 Vet. App. at 225. Accordingly, the claim for service connection for chemical poison must be denied. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and PTSD At the December 2020 hearing, the Veteran testified that he suffers from anxiety for which he takes prescription medication, and which he believes to be related to his military service. His claimed in-service stressors include serving in the Persian Gulf war, being sprayed in the face with jet fuel, and suffering from marital problems during his active duty service as an airman in the United States Air Force. While he was not diagnosed with anxiety until 30 years after his military service, the Veteran testified he was certain he suffered from anxiety, including panic attacks, during his active duty service which had been a continuous problem since his service. The Veteran underwent a VA examination in June 2015 where it was determined his symptoms did not meet the diagnostic criteria for PTSD under the DSM-5, but that he did suffer from anxiety. The examiner then opined that the anxiety was not related to the Veteran’s military service, including hostile/military environment. Instead, his anxiety was characterological anxiety about anticipated negative impending job performance evaluation. See June 2015 VA examination and medical opinion. However, considering the Veteran’s more recent lay testimony which elaborated on the stressors he experienced during service, as well as described the panic attacks he suffered during his service, the Board finds another VA examination is needed in order to determine the nature and etiology of his acquired psychiatric disorders, including anxiety and PTSD (if diagnosed). 2. Entitlement to service connection for heart attack and a heart stent, both claimed as due to an undiagnosed illness and/or environmental exposures, is remanded. The Veteran contends he has a heart condition and cardiovascular type symptoms due to undiagnosed illness and/or environmental factors from being in the Persian Gulf. At the December 2020 hearing, the Veteran also presented alternative theories of entitlement that either his mental health state has affected his heart health or his exposure to jet fuel in service where he was sprayed in the face has impacted his heart, leading him to have a heart attack and require a stent. The record shows the Veteran has diagnoses relating to his heart. In particular, coronary artery disease was diagnosed during the May 2015 VA Gulf War examination and a March 2017 report from Dr. E. (received by VA in April 2017) reported the Veteran suffering from symptoms of acute supraventricular tachycardia, including heart palpations, in service, but resolved when he had his heart attack in 2013. See April 2017 Private Medical Opinion. In support of his theory in which he argues his mental health has impacted his heart health, the Veteran has submitted a medical article which addresses the impact of PTSD on conditions of the heart. See Correspondence. Considering the Veteran’s lay testimony regarding heart palpitations and “panic attacks” he experienced during service, which Dr. E. attributes to a heart condition, as well as the private medical opinion by Dr. E., who opines the Veteran suffered from acute supraventricular tachycardia attacks that began during service and continued until he had stents placed in his coronary arteries following a heart attack in 2013, the Board finds another VA examination is necessary to determine the nature and etiology of any heart related conditions and the Veteran’s military service. 3. Entitlement to service connection for hypertension is remanded. The Veteran contends he suffers from hypertension because of his military service. He testified at the December 2020 Board hearing that although he did not start taking medication for his blood pressure after his retirement from service, he had episodes of elevated blood pressure readings on at least two occasions during his service. It was stated that in May 1992 and April 1993, the Veteran’s blood pressure was noted to be high during visits to the dentist. The Veteran also recounted being told by medics that his blood pressure was high, but he was not placed on medication. The Veteran has not been provided a VA examination pertaining to his claim. Considering the elevated blood pressure readings during service, in conjunction with the Veteran’s testimony that he was recalled being warned about his high blood pressure during his service, the Board finds the VA’s duty to assist has been triggered in needing to provide a VA examination. See McClendon v. Nicholson, 20 Vet. App. 79, 81; see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159 (c)(4)(i). 4. Entitlement to service connection for prostate cancer, to include as due to chemical poison, is remanded. The Veteran was diagnosed with prostate cancer in August of 2005, following his separation from service. While he testified at the Board hearing that he has been told by doctors they do not know the cause of his cancer, he did have an incident in service where he was sprayed with jet fuel and he also served in the Persian Gulf War. Specifically, the Veteran was exposed to oil wells burning contaminants as well as non-ionizing radiation from radar on the aircraft and refueling aircrafts for twenty years. His representative advanced these exposures as possible causes of his prostate cancer. The record shows the Veteran has not yet been afforded a VA examination pertaining to this claim. Based on his diagnosis of prostate cancer, in conjunction with his testimony regarding the various exposures he suffered during his military service, the Board finds the VA’s duty to assist has been triggered in needing to provide a VA examination. See McClendon v. Nicholson, 20 Vet. App. 79, 81; see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). 5. Entitlement to a disability rating in excess of 20 percent for service-connected low back injury with posttraumatic degenerative changes is remanded. At the December 2020 Board hearing, the Veteran testified that his service-connected low back injury with posttraumatic degenerative changes had increased in severity since he was last examined by VA. Specifically, he described experiencing locking of his back as well as burning sensations in the lower part of his back in the middle of the night and an inability to find a comfortable sleeping position which results in sleep disturbances. Notably, he also testified he was experiencing a “good day” when he was last examined by the VA and that his back symptoms were worse on other days. In light of the Veteran’s testimony, he should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his low back injury with posttraumatic degenerative changes. 6. Entitlement to a disability rating in excess of 20 percent for service-connected left lower extremity radiculopathy is remanded. At the December 2020 Board hearing, the Veteran also reported his service-connected left lower extremity radiculopathy was worse than when he was previously examined. In fact, he described flare-ups of worsened symptomatology than that which was documented on his last examination. Again, given the Veteran’s testimony, he should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his left lower extremity radiculopathy. 7. Entitlement to a disability rating in excess of 10 percent for service-connected irritant dermatitis is remanded At the December 2020 Board hearing, the Veteran testified that his service-connected irritant dermatitis had worsened since his last VA examination. In particular, he testified his hands were crackled and dry and that cleaning products, such as window cleaner, Clorox wipes, or antibacterial soap all dried his skin out and caused him to experience splitting of the skin. Given the Veteran’s testimony, he should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his irritant dermatitis. 8. Entitlement to a disability rating in excess of 10 percent for service-connected gout in the right foot is remanded. The Veteran testified at the December 2020 Board hearing that he experienced flare-ups which worsened his gout symptoms. He stated that when he had been previously examined by VA, he was not experiencing any flare-ups of those symptoms, but that if he had been examined during a flare-up, his symptoms would have been worse. The Veteran stated that when he experienced a flare-up, the gout was in his right toe, right foot, right knee, and right hand. It started with a tingle and then burned. His toe would also start to swell, requiring him to wear shoes that were a size larger to compensate for the swelling, and to take medication to alleviate the swelling. The Veteran also testified that he believed his symptoms had worsened since his last examination in both severity of the symptoms as well as the frequency. Given the Veteran’s testimony, he should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his gout in the right foot. 9. Entitlement to a disability rating in excess of 20 percent for service-connected left shoulder acromioclavicular separation status post-operative is remanded. The Veteran testified at the December 2020 Board hearing that his left shoulder acromioclavicular separation status post-operative had worsened to the point where it was totally disabling. He indicated he was unable to bring the arm up without pain or any kind of movement, and described his shoulder as “bone on bone” after his surgeries. Given the Veteran’s testimony, he should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his left shoulder acromioclavicular separation status post-operative. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, including anxiety. The examiner must review the claims file. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. Additionally, the examiner is asked to opine whether any additionally diagnosed disorder, including anxiety, is at least as likely as not related to an in-service injury, event, or disease, to include lay assertions of experiencing panic attacks during service which have continued following his separation from service. Provide a rationale to support all opinions provided. 2. Schedule the Veteran for a VA examination for his heart conditions. The examiner must review the claims file and opine as to whether the Veteran has a heart condition that is at least as likely as not related to an in-service injury, event, or disease, to include lay assertions of heart palpations experienced during service, or confirmed exposure to jet fuel and environmental hazards. If the Veteran is awarded service connection for an acquired psychiatric disorder, the examiner should also opine as to whether the Veteran has a heart condition that is at least as likely as not proximately due to that acquired psychiatric disorder or aggravated beyond its natural progression by that acquired psychiatric disorder. Provide a rationale to support all opinions provided. 3. Schedule the Veteran for a VA examination for his hypertension. The examiner must review the claims file and opine as to whether the Veteran’s hypertension is at least as likely as not related to service, including the evidence of elevated blood pressure readings during service. Provide a rationale to support all opinions provided. 4. Schedule the Veteran for a VA examination for his prostate cancer. The examiner must review the claims file and opine as to whether the Veteran’s prostate cancer is at least as likely as not related to his service, including exposure to contaminants from burning oil wells, exposure to jet fuel, and/or service in the Persian Gulf War 5. Provide a rationale to support all opinions provided. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected low back injury with posttraumatic degenerative changes, left lower extremity radiculopathy and left shoulder acromioclavicular separation status post-operative. The examiner should provide a full description of each disability and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the applicable rating criteria. In so doing, for each disability, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, for each disability, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 7. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected irritant dermatitis and gout in the right foot. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Churchwell, 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.