Citation Nr: 21032767 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-18 589 DATE: May 27, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD), is denied. Entitlement to service connection for a respiratory disorder, to include as due to asbestos exposure, is denied. FINDINGS OF FACT 1. The Veteran's acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD), was not shown in service or for many years thereafter and is otherwise unrelated to service. 2. The Veteran's respiratory disorder was not shown in service or for many years thereafter and is otherwise unrelated to service, to include as due to asbestos exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD), have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a respiratory disorder, to include as due to asbestos exposure, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from December 1961 to September 1965. These matters return to the Board of Veterans' Appeals (Board) following the issuance of an August 2019 Joint Motion for Partial Remand, and subsequent February and October 2020 Board remand orders directing the Regional Office (RO) to complete additional development. Service Connection The law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Additionally, a service connection claim that describes only one particular psychiatric disorder should not necessarily be limited to that disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Rather, as reflected in the title page, VA should consider the claim as one for any psychiatric disability that may reasonably be encompassed by evidence of record. Therefore, the Board will consider service connection for any acquired psychiatric disorder shown by the record. 1. Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD) 2. Entitlement to service connection for a respiratory disorder, to include as due to asbestos exposure The Veteran is seeking service connection for an acquired psychiatric disorder, other than PTSD, and for a respiratory disorder. Specifically, he alleges that while stationed in Cuba he was threatened with deployment to Vietnam, saw the body of a dead marine, and began to experience nightmares, and that he was exposed to asbestos in service which caused the development of his respiratory disorder. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease, to include exposure to asbestos. The Board concludes that, while the Veteran has current diagnoses of asthma and an acquired psychiatric disorder, characterized by depression and anxiety, the preponderance of the evidence weighs against finding that the Veteran's diagnosed asthma and depression began during service or are otherwise related to an in-service injury, event, or disease, to include asbestos exposure. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). As an initial matter, the Veteran's service treatment records document a singular note for treatment for a "cold, cough" but nothing further. Additionally, the Veteran's September 1965 separation examination does not document any signs, symptoms, treatment, or diagnoses of a respiratory disorder or acquired psychiatric disorder. Next, the Veteran's post-service medical records do not indicate treatment or diagnosis for an acquired psychiatric disorder until April 2003, and for a respiratory disorder until March 2013. In April 2003, the Veteran described symptoms associated with moderate anxiety and irritability that started approximately one year prior. At that time, he stated he believed these symptoms were "a part of getting older" and described no causative or precipitating factor for his anxiety. In April 2005, the Veteran was referred for a psychiatric evaluation. He stated he did not know why as he didn't consider himself traumatized by any specific events in his life. He did describe two stressful events that occurred during service while in Cuba, to include witnessing the body of a solider who had been killed while on guard duty. The Veteran endorsed feeling distressed and fearful at the time of the incident, but he denied any re-experiencing, avoidance, or hyperarousal symptoms related to the events described. The Veteran also described symptomatology associated with the death of his father, but he was not diagnosed with a mental health disorder in 2005. Regarding the Veteran's respiratory condition, he filed a claim for service connection for a pulmonary condition in February 2012. A March 2013 VA examination failed to diagnose the Veteran with a pulmonary condition. Evidence suggests that he was diagnosed with asthma in 2015. A continuity of symptomatology is not supported by the clinical evidence of record. The Board recognizes the statements from the Veteran regarding a history of respiratory and psychiatric symptoms since service. While the Veteran is competent to report that he experienced these symptoms, including nightmares, anxiety, and shortness of breath, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his current disorders. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In addition to the fact that decades elapsed between active duty service and initiating treatment, it is of importance to the Board that the Veteran was given the opportunity to mention any such symptoms at his separation physical examination in September 1965. See Kahana v. Shinseki, 24 Vet. App. 428, at 439-40 (2014) (The Board may weigh silence in a medical record against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated). Moreover, the Board notes that the Veteran filed claims for VA education benefits in April 1967. Therefore, the fact that the Veteran was aware of the VA benefits system and sought out a claim for other benefits but made no reference to the disorders he now claims, weighs against the credibility of his statements. In any event, the Board determines that the Veteran's reported history of continued symptomatology since active service is insufficient to establish a relationship between his disorders and service. Next, although continuous symptoms have not been shown, service connection may nonetheless be established if the evidence otherwise indicates a nexus between active duty service and his current diagnoses. In this case, however, the competent evidence fails to establish a relationship between active duty and the Veteran's currently claimed disorders. Here, the Board places significant value on the opinions of the March 2013, August 2017, May 2020, January 2021, and March 2021 VA medical examiners. There are no additional opinions in contradiction to those obtained by VA. As to the respiratory disorder, at the March 2013 examination, the examiner opined that the Veteran's respiratory disorder was less likely than not related to active duty service, including as due to asbestos exposure. The examiner noted that while there was a detected airway abnormality, there was no indication of interstitial lung disease expected to be seen with asbestos exposure. At an August 2017 respiratory examination, ordered following the Veteran's diagnosis of asthma and remand by the Board, the Veteran reported increased use of respiratory treatments, including over-the-counter allergy medications, he also reported the use of a CPAP machine to treat his sleep apnea. The examiner opined that the Veteran's respiratory disorder was less likely than not related to active duty service, including due to potential asbestos exposure, citing the lack of interstitial lung disease. Furthermore, the examiner noted that while the Veteran is diagnosed with asthma, sleep apnea, and has had chest congestion and colds, that none of those are related to asbestos exposure. Following a review of the Veteran's medical history the May 2020 respiratory addendum examiner opined that the Veteran's respiratory disorder was less likely than not related to his active duty service. The examiner noted that the Veteran underwent a chest radiograph in January 2020 to check for asbestos related respiratory conditions. The examiner stated that they were unable to confirm a chronic respiratory condition related to service, to include asbestos exposure, given the large gap of time between service and the Veteran's asthma diagnosis, the lack of chronicity of care following service, and the lack of documented interstitial lung disease. Finally, the Veteran was provided with a respiratory disorder examination in March 2021. The examiner opined that the Veteran's respiratory disorder, including asthma, was less likely than not related to active duty service. The examiner noted the Veteran's treatment for a cold and cough during service but concluded that it was acute given the lack of any documented continuing treatment in the Veteran's service treatment records. Additionally, the examiner noted the decades that had elapsed between his active duty service and his first recorded treatment for a respiratory related disorder. The examiner noted that the Veteran utilizes an inhaler for his shortness of breath which the examiner opined was related to his asthma and/or quadruple bypass surgery. The examiner concluded that there was no evidence to support a diagnosis of a respiratory disorder related to asbestos exposure given the lack of interstitial lung disease, pulmonary fibrosis, or pleural plaques. Overall, the preponderance of the evidence weighs against entitlement to service connection for a respiratory disorder, to include asthma. Although the Veteran provides evidence of exposure to asbestos in service, the record does not include competent evidence of a nexus between that exposure, or any other event in service, and the Veteran's present day diagnosis of asthma. In addition, the Board recognizes the Veteran's statements that he suffered with a continuing cough in service, but did not report it for fear of a medical discharge. Even if the Board finds such statements credible, the record does not establish the onset of asthma in service or that asthma, or any other respiratory disorder, was caused by in-service exposure to asbestos. The Federal Circuit has held that "[l]ay 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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, however, the Veteran is not competent to diagnose asthma or to testify regarding the etiology of his respiratory disorder. See Jandreau, 492 F.3d 1372 at 1377, n.4. Because such disorders are not diagnosed by unique and readily identifiable features, they do not have a simple identification that a layperson is competent to make. Accordingly, the Board finds that the criteria for service connection are not met and service connection for a respiratory disorder must be denied. Regarding the Veteran's psychiatric disorder, at the August 2017 psychiatric examination, the examiner endorsed a diagnosis of anxiety disorder but declined to endorse a diagnosis of PTSD. The Veteran reported symptoms consisting of anxiety and nightmares. The examiner opined that the Veteran's acquired psychiatric disorder was less likely than not related to his active duty service citing the lack of symptoms in service and the large gap in time between his service and when he first sought treatment. The Board notes that the examiner did not specifically discuss the Veteran's lay statements regarding his symptoms and how he believed they are related to service, as such, the United States Court of Appeals for Veterans Claims determined that the rationale expressed by the examiner was inadequate. At a May 2020 psychiatric examination, provided following remand, the Veteran reported the events in service to which he attributed his nightmares and anxiety. Namely, that he saw a dead marine whose throat had been cut, although he did not witness the actual killing. The examiner opined that the Veteran's acquired psychiatric disorder was less likely than not related to service as he did not witness the marine actually being kill but observed the body with a sheet over it after the fact. The examiner did not discuss the other lay statements from the Veteran, including his fear that he would be sent to Vietnam, his nightmares, or his statements attesting to continuity of his symptoms. Therefore, the Board remanded the claim again for another examination so that his lay statements could be considered in full. In January 2021, the examiner discussed treatment notes wherein the Veteran attested to anxiety and nervousness due to events in the world. The examiner opined that the Veteran's anxiety and depression were less likely than not related to active duty service. To support this opinion, the examiner noted that the while the Veteran reported nightmares, that he had no other psychiatric symptoms during service related to a fear of deployment to Vietnam. The examiner cited a 2013 medical treatment note wherein the Veteran reported to a physician that he was no longer experiencing nightmares. Furthermore, the examiner noted that the Veteran's separation examination was silent for any indication of a psychiatric disorder or related symptoms, and in the past, he had told a physician that he had forgotten about seeing the dead marine while in Cuba which lead the examiner to opine that there was no lasting distress from this event. The examiner stated that a nexus was not supported and that the Veteran's acquired psychiatric disorder was more likely than not related to more contemporaneous worries and events. Based upon a review of the record, the Board finds that a nexus to service has not been established for the Veteran's acquired psychiatric disorder. Despite the Veteran's lay statements that he experienced continuing nightmares and anxiety since service, the STRs are silent for psychiatric concerns and treatment records dated in 2003 and 2005, over 3 decades after separation from service, cut against the credibility of those statements. In addition, the competent evidence of record is against a finding that a psychiatric disability had onset in service or is otherwise related to an event experienced therein. Accordingly, the Board finds the service connection criteria are not met and, therefore, the claim must be denied. In reaching the above conclusions, the Board has considered the doctrine of reasonable doubt. 38 U.S.C. § 5107 (b). However, as the most probative evidence is against the claim, the doctrine is not applicable in this case. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). C.B. IWANOWSKI Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Hernan, Attorney Advisor 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.