Citation Nr: 21025918 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 11-01 903 DATE: April 29, 2021 ORDER Entitlement to service connection for a respiratory disability is denied. Entitlement to service connection for a heart disability is denied. Entitlement to service connection for a gastrointestinal disability is denied. Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for an acquired psychiatric disability to include posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for a sinus disability is remanded. FINDINGS OF FACT 1. A respiratory disability diagnosed as asthma was not manifest in service and is not otherwise attributable to service. 2. A heart disability diagnosed as acute, subacute, or old myocardial infarction; coronary artery disease; congestive heart failure; cardiomyopathy; and implanted automatic implantable cardioverter defibrillator was not manifest in service and is not otherwise attributable to service; coronary artery disease did not manifest within one year of separation from active service. 3. A gastrointestinal disability diagnosed as chronic gastritis, irritable bowel syndrome, and gastrointestinal reflux disease (GERD) was not manifest in service and is not otherwise attributable to service. 4. A lumbar spine disability diagnosed as multilevel lumbar spondylosis was not manifest in service and is not otherwise attributable to service; multilevel lumbar spondylosis did not manifest within one year of separation from active service. 5. An acquired psychiatric disability diagnosed as major depression with psychotic feature was not manifest in service and is not otherwise attributable to service; a psychosis did not manifest within one year of separation from active service. CONCLUSIONS OF LAW 1. A respiratory disability was not incurred or aggravated during service. 38 U.S.C. §§ 1101, 1110, 1131 (2012); 38 C.F.R. § 3.303 (2020). 2. A heart disability was not incurred or aggravated during service, nor may it be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 3. A gastrointestinal disability was not incurred or aggravated during service. 38 U.S.C. §§ 1101, 1110, 1131 (2012); 38 C.F.R. § 3.303 (2020). 4. A lumbar spine disability was not incurred or aggravated during service, nor may it be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 5. An acquired psychiatric disability was not incurred or aggravated during service, nor may it be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1953 to May 1955. These matters come before the Board of Veterans’ Appeals (Board) on appeal from February 2009 and July 2010 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the Veteran’s claims on appeal in February 2018. The Veteran’s claims folder has returned to the Board for further appellate consideration. In February 2018, the Board also remanded the claim of service connection for residual burn scars of the body. In a subsequent rating decision dated August 2020, this claim was granted as service connection for left epicanthal area scar. In view of the foregoing, this issue has been resolved and is no longer before the Board. See generally Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997). Service connection for respiratory, heart, gastrointestinal, lumbar spine, and acquired psychiatric disabilities Veterans are entitled to compensation from VA 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 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”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). For certain chronic disorders, including coronary artery disease, psychosis, and arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The Board notes that the Veteran has not claimed that his respiratory, heart, gastrointestinal, and lumbar spine disabilities on appeal are the result of combat with the enemy. Although he has indicated that his acquired psychiatric disorder is due to “combat” during service in Korea, while his service personnel records document his service in Korea, the personnel records do not document his participation in combat or receipt of any combat medals or badges. Therefore, the combat provisions of 38 U.S.C. § 1154 (2012) are not for consideration. After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2020). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran contends that he has respiratory, heart, gastrointestinal, lumbar spine, and acquired psychiatric disabilities that are related to service, to include as due to being near an exploding gas tank in July 1954. See, e.g., a statement from the Veteran dated December 1995. The Veteran further contends that his acquired psychiatric disorder is alternatively related to his service in Korea. See a June 2019 VA examination report. The Board notes that the Veteran’s available service treatment records are absent any complaint of or treatment for respiratory, heart, gastrointestinal, lumbar spine, and acquired psychiatric disabilities. However, the Board notes that the Veteran is competent to attest to being near an exploding gas tank. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran as a lay person is competent to report injury from this incident. The Board also notes that the Veteran’s service personnel records document his service in Korea. Additionally, the Veteran has indicated that he has had symptoms associated with respiratory, heart, gastrointestinal, lumbar spine, and acquired psychiatric disabilities since service. Also, current medical evidence documents findings of asthma with date of diagnosis from 2015; heart disabilities of acute, subacute, or old myocardial infarction as well as coronary artery disease, congestive heart failure, cardiomyopathy, and implanted automatic implantable cardioverter defibrillator with dates of diagnoses from 1995; gastrointestinal disabilities of GERD with date of diagnosis from 1980, chronic gastritis with date of diagnosis from 2003, and irritable bowel syndrome with date of diagnosis from 2002; multilevel lumbar spondylosis with date of diagnosis from 2019; and major depression with psychotic feature with date of diagnosis from 2005. See June 2019 VA examination reports. The Board acknowledges the Veteran’s report that in addition to major depression with psychotic feature, he suffers from PTSD. However, the probative evidence is absent such a finding. In this regard, the June 2019 VA examiner concluded after examination of the Veteran and consideration of his medical history that the Veteran does not have a diagnosis of PTSD under the DSM-5 criteria. See 38 C.F.R. §§ 3.304(f), 4.125(a). The examiner’s rationale was based on his finding that the Veteran did not meet Criterion B, C, D, E, F, G, and H for a finding of PTSD. The Board finds that the VA examiner’s opinion as to the absence of a finding of PTSD is of great probative value as the finding was based upon thorough examination of the Veteran and consideration of his medical history. The Board notes that F.G., M.D. reported in a private treatment record dated February 2005 that the Veteran has PTSD. However, he did not provide any rationale for his finding. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) [the failure of the health care provider to provide a basis for his/her opinion goes to the weight or credibility of the evidence]. On the contrary, the June 2019 VA examiner specified the criteria that were not met in finding that the Veteran does not have PTSD. As such, the Board finds that the diagnosis of PTSD by Dr. F.G. is of no probative value. In light of the foregoing, the Board finds that the Veteran does not currently evidence PTSD. The Board has carefully evaluated the evidence and finds that a preponderance of the evidence of record is against a finding that the Veteran’s current respiratory, heart, gastrointestinal, lumbar spine, and acquired psychiatric disabilities are related to his service on a direct or presumptive basis. Specifically, the Veteran was afforded VA examinations for his respiratory, heart, gastrointestinal, lumbar spine, and acquired psychiatric disabilities on appeal in June 2019. After examination of the Veteran and consideration of his medical history, the VA examiners concluded that it is less likely than not that the Veteran’s respiratory, heart, gastrointestinal, lumbar spine, and acquired psychiatric disabilities are not related to service to include as due to the Veteran’s report of being near a gas tank explosion. With regard to the Veteran’s respiratory disability assessed as asthma, the examiner’s rationale for his conclusion was based on his finding that there was no objective finding of asthma during service or for more than 50 years after the Veteran’s separation from service. With respect to the Veteran’s heart disabilities assessed as acute, subacute, or old myocardial infarction as well as coronary artery disease, congestive heart failure, cardiomyopathy, and implanted automatic implantable cardioverter defibrillator, the examiner’s rationale for their conclusion was based on their finding of an absence of a heart disability in service or for many years thereafter as well as their review of medical literature that showed being near to an exploding gas tank would not cause any of the Veteran’s heart conditions. As to the Veteran’s gastrointestinal disabilities assessed as GERD, chronic gastritis, and irritable bowel syndrome, the examiner’s rationale for their conclusion was based on their finding of no gastrointestinal disabilities documented upon the Veteran’s separation from service as well as no finding of a gastrointestinal disability until 1980. The examiner further noted review of medical literature which did not indicate being near a gas tank explosion would cause a gastrointestinal disability. With regard to the Veteran’s lumbar spine disability assessed as multilevel lumbar spondylosis, the examiner’s rationale for their conclusion (in a May 2020 addendum report) was based on their review of a lumbar CT scan dated November 2018 which showed normal atraumatic spondylosis. As such, the examiner opined that the Veteran’s lumbar spine disability was related to the normal aging process rather than service to include being near the exploding gas tank. With respect to the Veteran’s acquired psychiatric disorder assessed as major depression with psychotic feature, the examiner’s rationale for their conclusion was based on their finding that the Veteran’s service treatment records including the separation examination were absent a finding of mental health symptoms and there were no postservice mental health symptoms for many years following separation. The VA medical opinions discussed above were based on upon thorough review of the record and analysis of the Veteran’s entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”]. Additionally, the VA examiners’ opinions are consistent with the Veteran’s documented medical history, which is absent any report of symptomatology consistent with a chronic respiratory, heart, gastrointestinal, lumbar spine, or acquired psychiatric disability for many years following the Veteran’s separation from active service. The Veteran has not submitted a medical opinion to contradict the VA examiners’ opinions that his current respiratory, heart, gastrointestinal, lumbar spine, and acquired psychiatric disabilities are not related to service. The Veteran has been accorded ample opportunity to present competent medical evidence in support of his claims. He has not done so. See 38 U.S.C. § 5107(a) (2012) [it is the claimant’s responsibility to support a claim for VA benefits]. In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). “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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). To the extent the Veteran himself asserts his current respiratory, heart, gastrointestinal, lumbar spine, and acquired psychiatric disabilities are related to his active service, the Veteran is competent to report that he has a current diagnosis (as that is documented in the record). He is also competent to report that he has had symptoms since service. However, respiratory, heart, gastrointestinal, lumbar spine, and acquired psychiatric disabilities were not noted during active service. Moreover, the May 1955 separation examination revealed normal respiratory, heart, gastrointestinal, lumbar spine, and psychiatric findings. Further, as the separation examination revealed normal heart, lumbar spine, and psychiatric findings, he did not have characteristic manifestations sufficient to identify the chronic disease entity (coronary artery disease, arthritis, and psychosis) during service or within one year of separation from active service. 38 C.F.R. § 3.303(b). The Board notes that the Veteran is competent to report his symptoms both current and past. However, this lay evidence is inconsistent with the normal separation examination. Further, the in-service examinations are more credible and more probative than his after-the-fact lay assertions. The Board must find that the Veteran’s statements with regard to a nexus between his respiratory, heart, gastrointestinal, lumbar spine, and acquired psychiatric disabilities and service to be of minimal probative value and outweighed by the VA opinions, prepared by skilled neutral professionals. For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran’s claims of entitlement to service connection for respiratory, heart, gastrointestinal, lumbar spine, and acquired psychiatric disabilities. The benefits sought on appeal are accordingly denied. REASONS FOR REMAND Service connection for a sinus disability is remanded Pursuant to the February 2018 Board remand, the Veteran was provided a VA examination in June 2019 to determine the etiology of any sinus disability to include whether such was due to the in-service injury from being near a gas tank explosion. After examination of the Veteran and consideration of the Veteran’s medical history, the VA examiner determined in a May 2020 addendum report that the Veteran has chronic sinusitis and concluded that it is less likely than not that the chronic sinusitis was incurred in or caused by service. However, in providing the rationale for their conclusion, the VA examiner reported with regard to whether the Veteran’s sinusitis is related to the in-service gas tank explosion, an opinion could not be provided without resorting to mere speculation due to the lack of objective evidence found upon reviewed of service treatment records. With regard to the speculative language used in the May 2020 medical opinion, the Court of Appeals for Veterans Claims (Court) has held that medical evidence which is speculative, general, or inconclusive in nature cannot support a claim. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Although the examiner indicated that an opinion could be provided without resort to speculation as there was a lack of objective evidence found in the service treatment records for the Veteran’s report of being near a gas tank explosion, as discussed above, the Board notes the Veteran is competent to report such injury and indeed is service connected for a scar associated with the reported explosion. As such, the Board finds the May 2020 VA examiner’s opinion to be of no probative value in evaluation of the Veteran’s claim. Accordingly, the Board finds that on remand, an addendum opinion should be obtained as to the etiology of the Veteran’s sinus disability. The matter is REMANDED for the following action: 1. Forward the claims file to an appropriate medical professional to provide an opinion as to the etiology of the Veteran’s sinus disability assessed as chronic sinusitis. The examiner is requested to review all pertinent records associated with the claims folder, including the Veteran’s service treatment records, post-service medical records, and lay statements. If the clinician determines that another examination is needed, the Veteran should be scheduled for a new examination. Based on the review of the Veteran’s claims file, the examiner is asked to opine as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran’s diagnosed chronic sinusitis is related to service, to include his report of being near a gas tank explosion. A complete rationale for any opinion offered must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 2. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending issue in light of any additional evidence added to the record. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Arif Syed, 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.