Citation Nr: 21040339 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 15-38 844A DATE: July 3, 2021 ORDER Service connection for recurrent chest pain is denied. FINDING OF FACT The Veteran does not have a diagnosis for a recurrent chest pain condition. CONCLUSION OF LAW The criteria to establish service connection for recurrent chest pain have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from October 1996 to May 2000; July 2006 to June 2008; and April 2010 to June 2011. Service connection for recurrent chest pain Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § 1110. 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). 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 current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a); Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Federal Circuit Court of Appeals held that where pain causes functional impairment, a "disability" for VA compensation purposes can exist, even if there is no underlying diagnosis or pathology. Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). The Federal Circuit explained that a "disability" under 38 U.S.C. § 1110 refers to the functional impairment in earning capacity, not the underlying cause of said disability. Id. at 1363. The Federal Circuit also noted that 38 C.F.R. § 4.10 defines the term "functional impairment" as the inability of the body or a part of it "to function under the ordinary conditions of daily life including employment." Id. However, the Federal Circuit also found that a claimant's report of "subjective" pain in and of itself will not establish a current disability. Id. at 1367. In other words, a claimant cannot demonstrate service connection simply by saying that he or she has pain. Id. Instead, the evidence must show that pain causes functional impairment of earning capacity. VA should consider whether there is evidence of functional limitation caused by pain. Id. The Court of Appeals for Veterans Claims held that the Saunders case is not limited to pain within an orthopedic context only. Rather, the definition of "disability" in 38 U.S.C. § 1110 (and by implication 38 U.S.C. § 1131) includes any "condition" that results in "functional impairment of earning capacity." Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 398 (2020). After Martinez-Bodon, the Court added that VA must make a factual determination as to whether a veteran's symptoms or manifestations rise to the level of a "functional impairment in earning capacity." In determining whether a veteran's impairment rises to a level affecting earning capacity, VA can consider manifestations of similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person. Wait v. Wilkie, 33 Vet. App. 8, 17 (2020). The Rating Schedule may serve as a guide to determine whether certain symptoms may impair earning capacity; however, it is not dispositive. Id. at 16. The Saunders holding is also supported by VA regulation - 38 C.F.R. § 4.1 (the term disability is described in terms of "the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations"). See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (citing with approval VA's definition of "disability" in 38 C.F.R. § 4.1). In an April 2007 service treatment record (STR), the Veteran was noted to have an excision of a left chest wall mass. In a January 2009 treatment record, the Veteran was noted to have a well healed surgical scar at both breasts with mild keloid. In an April 2011 in-service medical assessment, the Veteran was noted to have no current medical symptoms. In July 2014, the Veteran was afforded a VA examination for muscle injuries. The examiner noted no current diagnosis or pathology. The examiner also noted that the Veteran's chest wall excision removed adipose tissue, located between the muscle and skin and concluded that there was no muscle injury related to the bilateral chest wall excision. In a separate July 2014 VA examination for hematologic and lymphatic conditions, the Veteran was noted to have no history of malignancy and no current diagnosis. In February 2015, the Veteran reported that when he was stationed at Fort McClellan, Alabama from October 1996 to February 1997 he began to have continuous pain. The Veteran also argued that the VA examination system is flawed and because VA examiners must review many Veteran's files, they cannot adequately review medical records. The Veteran also stated that the Board should obtain a medical opinion from an appropriate health care professional. However, the Veteran has already been afforded medical examinations about this claim. The Veteran testified in April 2021 that he had an operation to remove two lipomas of fatty tissue from his chest. The Veteran noted continuing pain in his chest and stated that he had discussed his pain with a friend of his who is a doctor but he had not received treatment for the pain. The Veteran cited Hurricaine Maria, and the COVID-19 pandemic as factors in limiting his ability to seek treatment. The Veteran was given 60 days, from the date of the hearing, to provide a medical opinion from his friend identifying the diagnosis and symptoms experienced by the Veteran. The Veteran has not submitted additional medical evidence since the April 2021 hearing testimony. The preponderance of evidence is against the Veteran's claim. As noted above, the threshold requirement for service connection to be granted is competent medical evidence of the current existence of the claimed disorder. Here, competent medical evidence of a disorder qualifying for an additional grant of service connection would indicate that the Veteran has a disorder, other than the presently service-connected bilateral chest wall mass excision that results in functional impairment. The already service-connected disorder is evaluated as 20 percent disabling. The Veteran also has a non-compensable rating for residual scarring of the same bilateral chest wall mass excision. The threshold requirement for substantiating a claim for service connection is not met, as the evidence does not show a diagnosis for a recurrent chest pain condition other than those already service connected, and there is no demonstration of current functional impairment of earning capacity which warrants the finding of a current disability. Therefore, service connection is not warranted, and the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Wozniak, Associate Attorney 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.