Citation Nr: 21029473 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-37 647 DATE: May 13, 2021 ORDER Entitlement to service connection for a lung disability is denied. Entitlement to service connection for a chest injury is denied. Entitlement to service connection for a left knee disability is denied. REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for migraine headaches is remanded. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis for a lung disability. 2. The Veteran's currently diagnosed chest injury and left knee disability are not etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a lung disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a chest injury have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1991 to September 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that initially on appeal was the issue of service connection for a psychiatric disorder. However, service connection was granted in an August 2020 rating decision. As this represents a full grant of the benefits sought, this issue is no longer on appeal. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active 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, the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 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 disease was incurred in service. 38 C.F.R. § 3.303 (d). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b). 1. Entitlement to service connection for a lung disability. 2. Entitlement to service connection for a chest injury. 3. Entitlement to service connection for a left knee disability. The Veteran seeks service connection for a chest injury, a lung disability, and a left knee disability. However, after reviewing the evidence, the Board finds that service connection is not warranted for any of these conditions. With regard to a lung disability, the Veteran contended in his January 2012 claim that his lung disability was due to chemical exposure in service. Service treatment records (STRs) are silent for any complaints, treatment, or a diagnosis for a lung disability. Likewise, post-service records are also absent of a lung disability. Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability at any point during the claim or appeal period. Therefore, in the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007). Thus, service connection for a lung disability is not warranted. Concerning the Veteran's claim for a chest injury and a left knee disability, post-service records show that the Veteran received an MRI of the chest in October 2016 which showed intramuscular tearing of the pectoralis major. It was also noted that the appearance was suggestive of previous trauma with intramuscular hematomas. Regarding his left knee, a July 2013 private treatment record shows the Veteran complained of left knee pain, and an August 2019 private treatment record indicates a diagnosis of knee arthritis, although the record does not specify which knee. Nevertheless, STRs are silent for any complaints, treatment, or a diagnosis for a chest injury or a left knee disability. Moreover, the Veteran has not indicated how his current chest disability or left knee disability may be related to service. Therefore, as there is no evidence of an in-service event or injury pertaining to his chest or left knee, nor is there medical or lay evidence that have attributed his current chest injury or left knee disability to service, service connection cannot be granted for either condition and no examination is warranted to determine etiology. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. As the preponderance of evidence is against the claims, the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, the claims of service connection for a chest injury and left knee disability are denied. REASONS FOR REMAND 1. Entitlement to service connection gastroesophageal reflux disease (GERD) is remanded. The Veteran's service treatment records show a diagnosis for gastroenteritis, while post-service records show a diagnosis of GERD and indicates the Veteran is taking Protonix for the condition. Since the Veteran has both an in-service and current diagnosis for a gastrointestinal disability, an examination is warranted to determine the etiology of the Veteran's GERD. See McClendon v. Nicholson, 20 Vet App. 79, 81 (2006). 2. Entitlement to service connection for migraine headaches is remanded. The Veteran contends service connection is warranted for migraine headaches. STRs are silent for complaints, treatment, or a diagnosis for headaches except for one instance in 1992 when the Veteran was diagnosed with having the flu. However, in his January 2012 claim, he attributed his migraines to chemical exposure. Additionally, in June 2013, the Veteran submitted a Statement in Support of Claim for PTSD where he reported having chemical exposure while assigned with Calvary from December 1991 to April 1992 due to cleaning equipment used in Kuwait and exposed to oil fires. The Veteran also submitted a Certificate of Appreciation that shows the Veteran assisted in the movement of personnel and equipment while assigned to the Third Squadron, 2nd Armored Cavalry Regiment, from December 1991 to April 1992. A review of the evidence does not show that the RO has attempted to verify the Veteran's alleged chemical exposure. In this regard, the Board notes that the Veteran is competent to report an in-service event or injury. Therefore, given that the Veteran has competently reported an in-service event and he has a current diagnosis for migraines, VA has a duty to assist the Veteran in substantiating his claim. As such, remand is warranted to verify the Veteran's exposure to chemicals during the period from December 1991 to April 1992. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims folder. 2. With assistance from the Veteran, undertake any necessary development to independently verify the Veteran's claimed chemical exposure while serving with the 2nd Armored Cavalry Regiment from December 1991 to April 1992. A list of the chemicals that the Veteran was exposed to, or may have been exposed to, should be compiled if possible. Any additional action necessary for independent verification of the exposure, including follow-up action requested by the contacted entity, should be accomplished. If in-service chemical exposure cannot be verified or conceded, then the RO should notify the Veteran and his representative of this fact, explain the efforts taken to obtain this information, and describe any further action to be taken. The Veteran and his representative should be given an opportunity to respond. If, and only if, the Veteran's claimed chemical exposure is verified or conceded, then schedule the Veteran for a VA examination to determine the etiology of the Veteran's migraine headaches. The examiner must review the claims folder, including a copy of this remand, and all lay statements of record. This must be noted in the VA examination report. The examiner should be expressly informed of any verified or conceded chemical exposures. The examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's migraine headaches were caused by his active duty service, to include chemical exposure. The examiner should provide a complete rationale for any opinions expressed. If the examiner cannot provide an opinion without resorting to mere speculation, he or she should explain why this is so. 3. Schedule the Veteran for a VA examination with a qualified clinician to determine the etiology of the Veteran's GERD. The examiner must review the claims folder, including a copy of this remand, and all lay statements of record. The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's currently diagnosed GERD is related to his active duty service. The examiner should provide a complete rationale for any opinions expressed. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. 4. Then, readjudicate the claims. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Laffitte, 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.