Citation Nr: 23013255 Decision Date: 03/03/23 Archive Date: 03/03/23 DOCKET NO. 20-25 453 DATE: March 3, 2023 ORDER Entitlement to service connection for a respiratory disability is denied. REMANDED Entitlement to service connection for a psychiatric disability is remanded. FINDING OF FACT The persuasive weight of the evidence is against a finding that the Veteran has a current respiratory disability, to include a disability manifested by respiratory symptoms that cause functional impairment of earning capacity. CONCLUSION OF LAW The criteria for entitlement to service connection for a respiratory disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2002 to January 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision issued by Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2022, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Entitlement to service connection for a respiratory disability The Veteran asserts that a respiratory disability is the result of service, to include jet fuel exposure. The Veteran's service medical records to no show complaints, treatments, or diagnoses related to a respiratory disability. The records show reports of difficulty breathing directly related to a chest pain disability. A January 2004 respirator user certification examination report shows that the Veteran denied any pulmonary or lung problems, to include shortness of breath, coughing, or wheezing. In January 2005, the Veteran reported chest pain with difficulty breathing. The Veteran was initially diagnosed with pericarditis then possible repolarization versus unstable angina. In February 2005, the Veteran reported midsternal chest pain which increased with deep breaths, some shortness of breath, dizziness, headaches, and a several days history of a nonproductive cough. The Veteran denied shortness of breath or a cough. An examination of the respiratory system was normal with no dyspnea, wheezing, or rales noted. A March 2005 emergency department record shows that the Veteran was treated for chest pain which was exacerbated by deep breaths and walking up stairs. An examination diagnosed chronic chest pain. The Veteran was treated for chest pain in an emergency department again in May 2005. The Veteran denied shortness of breath, cough, and wheezing and the lungs were clear to auscultation bilaterally on examination. The doctor noted left chest and sternum pain on palpation and stated that the chest pain was likely musculoskeletal in nature. The Veteran was discharged since there were no reports of shortness of breath, worsening pain, fever, chills, or coughing. An October 2005 report shows that the Veteran had not had flight deck duties since January 2005, secondary to chest pain. A November 2005 record noted 11 months of intermittent chest pain, exacerbated with palpation or inspiration. Post-service medical records show reports of painful inspiration associated with chest pain. In July 2010, the Veteran was treated for midsternal chest pain which increased with inspiration. During an August 2010 initial evaluation with a VA primary care doctor, the Veteran reported atypical chest pain, right ankle pain, and low back pain. The Veteran denied cough, wheezing, and shortness of breath. The doctor noted that there was no evidence of rales, rhonchi, or wheezing. At an August 2010 VA examination, the Veteran reported chest pain which occurred about once a year when playing sports or running. The Veteran reported that the pain was relieved with rest and deep breaths. The Veteran denied a history of dyspnea, non-productive cough, productive cough, wheezing, non-anginal chest pain, and night sweats. The examiner noted that there was no evidence of abnormal breath sounds, diagnosed costochondritis, and opined that the chest pain was related to the chest pain noted in service. Accordingly, service connection was established for costochondritis in a January 2011 rating decision. An April 2014 VA examination diagnosed costochondritis. The Veteran reported severe chest pain with exercise and deep breathing. The VA examiner stated that costochondritis was a bone condition which manifested as chest pain exacerbated by physical activity and deep breathing. The examiner opined that the functional impact of the disability was that the Veteran had to rest until the chest pain subsided and that the Veteran could not exercise with push-ups and pull ups. In January 2016, the Veteran submitted a claim for service connection, in part, for "hazardous chemicals JP5 fuel" exposure. A February 2016 primary care note shows that a review of the pulmonary system was normal. The doctor noted that the Veteran did not have labored breathing, wheezing, rales, or rhonchi. The Veteran reported sleep issues related to anxiety. The Veteran reported fatigue and denied chest pain and shortness of breath. A June 2016 VA examination diagnosed costochondritis-inflammation of the rib cartilage. The Veteran reported that the condition had remained the same with stinging pain that worsened with physical exertion and deep breathing. The examiner noted that the pain was reproduced by pressing on the chest. In July 2016 correspondence to the Veteran, the AOJ informed the Veteran that a specific disability had not been asserted with regard to the January 2016 claim for residuals of hazardous chemicals JP5 fuel exposure. The AOJ requested that the Veteran indicate the disability he believed resulted from exposure to jet fuel. The Veteran did not respond to that request. In a March 2017 rating decision, which denied the claim for service connection, the AOJ stated that the Veteran did not respond to a July 2016 letter requesting clarification regarding the claim for exposure to JP 5 fuel. The AOJ stated that there was "no evidence of a disability resulting from exposure to JP 5 fuel" and that service connection could not be established in the absence of a confirmed diagnosis. In a May 2017 notice of disagreement, the Veteran stated that all of the January 2016 claimed disabilities, to include "JP 5 hazardous", were the result of service. The Veteran denied shortness of breath and cough in March 2020. In September 2020, the Veteran asked to be tested for COVID because he had been having a cough, headaches, and a sore throat for a few days. In June 2021, the Veteran's doctor noted that a pulmonary examination showed breathing without difficulty or splinting. The Veteran denied shortness of breath and cough in September 2022. During an April 2022 Board hearing, the Veteran asserted that jet fuel exposure had caused a respiratory disability. The Veteran testified that during service, he was exposed to jet fuel and his breathing was "complicated." He stated that he had shortness of breath, wheezing, and choking. He stated that he was discharged, in part, due to becoming easily winded. The Veteran testified that the same symptoms were present while in service and had persisted since separation from service. He stated that he discussed the symptoms with doctors, but no disability was diagnosed. The Board finds that the evidence of record does not show that the Veteran has had a chronic respiratory disability, or any respiratory disability manifested by shortness of breath, wheezing, and choking during or after service. The claims file does not contain evidence of treatment, or diagnosis related to wheezing, choking, and shortness of breath that are unrelated to the chest pain disability, which has been diagnosed as, and service-connected as, costochondritis. Outside of endorsing some breathing difficulties, such as shortness of breath and chest pain on inspiration, with complaints of chest pain, the Veteran consistently denied respiratory symptoms. Further, pulmonary and respiratory examinations were noted as normal. The Veteran has been evaluated and treated by several specialists. However, no medical professional has diagnosed a respiratory or pulmonary disability. Instead, the service and post-service medical records show that several medical professionals noted the Veteran's reports of shortness of breath and chest pain with inspiration and attributed those symptoms to a chronic disability manifested by chest pain, for which service connection has already been established. The Veteran testified that he reported symptoms of shortness of breath, wheezing, and choking to his doctors, and no respiratory disability was diagnosed. The Board finds that only evidence which supports a finding of a diagnosed respiratory disability manifested by shortness of breath, wheezing, and choking, is the Veteran's own lay statements made nearly 16 years after separation from service and six years after the claim for service connection for jet fuel exposure. While the Veteran is competent to report observable symptoms, he is not competent to diagnose a respiratory disability because he is not shown to possess the requisite medical training or expertise. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board finds that record does not contain a competent diagnosis of respiratory disability. The Board finds that the medical professionals have provided more persuasive evidence in finding no respiratory disability and diagnosing costochondritis, a musculoskeletal disability, for which service connection has been established. Although a respiratory disability diagnosis has not been made, the Board is cognizant that pain in the absence of a presently diagnosed condition can cause functional impairment, which may qualify as a disability under 38 U.S.C. § 1110. Saunders v. Wilkie 886 F.3d 1356 (Fed. Cir. 2018). The Board finds that the same reasoning could apply to the Veteran's reported respiratory symptoms which were not attributed to a diagnosed disability. However, the veteran's pain must amount to a functional impairment in order to establish a disability. Functional impairment is defined as the inability of the body or a constituent part of it to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Therefore, to establish the presence of a disability, there must be competent evidence specific to the claimant tending to show the reported impairment rises to a level to affect earning capacity. Wait v. Wilkie, 33 Vet. App. 8 (2020). The Board finds that there is no medical evidence of functional impairment of earning capacity related to any respiratory symptoms. Moreover, despite several opportunities, the Veteran has not asserted or described any specific functional loss or impairment caused by reported respiratory symptoms. The Board notes the Veteran's May 2017 statement. However, the statement, even when considered with other statements, reports, and testimony of record, is not competent evidence tending to show that respiratory symptoms rise to a level to affect earning capacity in any way. Therefore, the Board finds that the Veteran has not presented evidence which shows or could be reasonably interpreted as claimed respiratory symptoms which amount to or cause any functional impairment. Competent medical professionals have related the Veteran's symptoms to the musculoskeletal disability of costochondritis for which service-connection has been established. In support of this finding, the Board assigns great probative weight to the VA medical records dated from 2010 to 2022 which show that medical professionals regularly inquired, and the Veteran competently and consistently denied any respiratory symptoms outside of those related specifically to the service-connected chest pain disability. The April 2014 VA examiner stated that the chest pain disability caused functional impairment. The Board assigns less probative weight to the Veteran's statements made in conjunction with a claim for benefits. Cartright v. Derwinski, 2 Vet. App. 24 (1991) (pecuniary interest may affect the credibility of a claimant's testimony); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (VA can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility); Macarubbo v. Gober, 10 Vet. App. 388 (1997) (credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). Therefore, the Board finds that the claimed respiratory symptoms do not amount to a current disability for VA compensation purposes. The Board notes that the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War. However, service connection based on Gulf War service under 38 C.F.R. § 3.317 allows for compensation only where there is an undiagnosed disability or chronic multisymptom illness. Neither the lay nor the medical evidence shows a diagnosed respiratory disability or functional impairment that can be attributed to undiagnosed illness or medically unexplained chronic multi-symptom illnesses. 38 C.F.R. § 3.317(a). The Veteran's symptoms are attributed to a known medical causation of costochondritis. The presence of a current disability is the cornerstone of a claim for VA disability compensation. In the absence of proof of a current disability, there can be no valid claim, to include entitlement to service connection on a direct, presumptive, or secondary basis. Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The service and post-service medical records are otherwise negative for complaints of respiratory symptoms not associated with a chronic chest disability, treatment related to respiratory symptoms, or a diagnosed respiratory disability. A respiratory disability manifested by shortness of breath, wheezing, and choking was reported by the Veteran during the April 2022 Board hearing. However, the Veteran's bare assertion, without more, that he has an alleged disability caused by service does not require more of VA's duty to assist. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all Veterans in disability cases involving nexus issues simply because there are lay statements that the condition is linked to service). The only evidence of a current respiratory disability is the Veteran's lay statements of chronic shortness of breath, wheezing, and coughing which the Board has found to be outweighed by the contemporaneous medical evidence, which includes the Veteran's own statements made to medical professionals during the course of treatment. The Board finds that the weight of the persuasive evidence of record does not show any respiratory disability manifested by shortness of breath, wheezing, and choking during or after service. Medical personnel have attributed the claimed symptoms to service-connected costochondritis. Accordingly, as there is no competent evidence of a current respiratory disability diagnosis, the Board must deny the claim. The Board finds that the evidence is not in approximate balance and there is no reasonable doubt to resolve in favor of the Veteran. Therefore, the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Degmetich v. Brown, 104 F.3d 1328 (1997). REASONS FOR REMAND Entitlement to service connection for a psychiatric disability is remanded. The Veteran asserts that a psychiatric disability is the result of service or a service-connected disability. In an August 2010 mental health assessment, the Veteran reported service in the Persian Gulf, but denied any combat exposure. The Veteran reported that he had been molested as a child, that he tried to tell his grandmother when he was a child, and that he "finally told his mother and step-father last year and they acted annoyed and never brought the subject up again." The Veteran endorsed some PTSD symptoms, to include intrusive thoughts, physiological reactivity to reminders of the trauma, avoidance, feelings of detachment, difficulty in falling or staying asleep, and irrational guilt at times. The Veteran denied nightmares or exaggerated startle response. The psychiatrist diagnosed anxiety with PTSD features from childhood abuse and depression from partner relational problem. The examiner also noted that the Veteran had recently become a father, was a student, had financial stressors, and had phase of life issues. In January 2016, the Veteran requested a psychiatric referral for psychiatric symptoms and recurring dreams related to service. During a February 2016 mental health consultation, the Veteran reported the childhood assault but stated that he was not distressed by those events as he felt "resolved after telling his grandmother." In March 2016, the Veteran reported an in-service stressor in which the Veteran had to rescue a peer who was almost blown off the ship. The Veteran reported that while in Brazil he almost shot two people for not following directions to redirect their ship. The Veteran reported that in 2002 he was in Bahrain during the time of riots and witnessed hostility toward Americans and the burning of the American flag. The Veteran reported additional service stressors in December 2016. He reported that he was aboard a ship "on the way to Hawaii....did not know what [he] was facing...became emotional that he was leaving/departing from everything he knew. 2. His friend was blown off the flight deck and was hanging on to the deck and he could have blown over and he and a group of soldiers rescued him. 3. He said his 1st cruise became a 9 mo. cruise in 2003-4 because Bush asked them to surrender so his cruise was extended in the Gulf, during the Westpac tour, 12/31st were expecting to go home and then being told it would take mos. but it was not his ship. He said his plane left, ship sent a warning shot, and realized after the fact that there was a cloud of smoke requesting Sadam to surrender. 4. He report[ed] he was on watch security, and he had a shotgun saw something floating in the water and requested they turn 2-3 times as this is a carrier. He said he had to show his weapons and then they turned. He said the other soldier had his gun cocked." At a January 2017 VA psychiatric examination, the Veteran reported that in approximately 2002, while on ship in the Persian Gulf, he witnessed a close friend get blown overboard by a plane. The friend was hanging by the rail and the Veteran and two shipmates rescued him by pulling him back onto the ship. The Veteran reported that he injured his ankle during the rescue and required treatment. He reported that when he boarded his ship, he was told to tell the media that they were preparing for training. Once he got on ship and saw the ordnance, he was suddenly struck with the reality of the situation and knew he was headed to something serious. The examiner stated that the reported symptoms were anxiety related symptoms directly related to the reported in-service stressors. The examiner stated that it was "plausible that his reported stressor is causing carry-over anxiety and sleep disturbance and therefore would be considered the result of his in-service stressor." In March 2020 correspondence to the Veteran, the AOJ noted that on September 22, 2016; December 16, 2016; and February 6, 2019, the Veteran was asked to complete VA Form 21-0781, Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD). However, the Veteran did not respond to the requests and the reported stressors could not be verified. During an April 2022 Board hearing, the Veteran and his attorney testified that a psychiatric disability was due to the Veteran's flight deck duties. Specifically, being on the flight deck required being around cables that snapped often and put sailors at risk. Additionally, the Veteran was shown a then recent video of the USS Eisenhower tragedy. The Veteran's attorney asserted that because the Veteran's military occupational specialty was Watch Duty while they were in the Persian Gulf, the Veteran was given hazardous pay which "insinuates...his job duties were hazardous and therefore, as a result of those duties" contributed to the current psychiatric disability. The Veteran testified that one night there was a small ship that came up carrying two people on it and it had a canister in the middle. The Veteran called in two or three times to the dispatchers. When the Veteran flashed the spotlights on his weapons, they finally turned around. Additionally, the Veteran and his attorney asserted that service connection was warranted presumptively because the Veteran sought mental health treatment at a VA medical center within one year of separation from service. They argued that alternatively, a psychiatric disability was the result of physical pain caused by service-connected disabilities. The Veteran testified that he was unable to move as much as he used to or take daily walks. He stated that he had "black out stages" and that pain interfered with his sleep which in turn caused issues with his ability to concentrate and focus during the day. After a careful review of the evidence, the Board finds that there is no competent opinion regarding the etiology of any psychiatric disability. During the April 2022 Board hearing, the Veteran's attorney stated that the Veteran would provide a medical opinion regarding the etiology of the psychiatric disability. There has been no opinion provided. The Board finds the January 2017 VA psychiatric examination incomplete because the VA examiner did not consider the Veteran's reports and the VA psychiatrist's findings in the August 2010 mental health assessment report. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board notes that generally, establishing service connection for psychiatric disabilities requires (1) a current diagnosis of psychiatric disability; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997). For psychiatric claims relating to PTSD, if a veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, and the stressor is not related to fear of hostile military or terrorist activity, then the veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). Furthermore, service department records must support, and not contradict, the claimant's testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). There is no evidence which corroborates any of the claimed in-service stressors. In January 2017, the Veteran reported an ankle injury and treatment related to efforts to save a servicemember who had been blown overboard by a plane. However, the incident is not documented in the service personnel records. Further, there are no entries in the service medical records which show an ankle injury as a result of such an accident. The only noted treatment for ankle injury was in March 2003 and was caused while playing basketball. Therefore, remand is necessary to verify the reported service stressors. The Veteran did not respond to multiple requests to provide information regarding the claimed service stressors. A review of the record shows that the Veteran was assigned to the pre-commissioned USS Ronald Reagan from January 14, 2002, to July 24, 2002; the USS Abraham Lincoln from July 24, 2002, to May 6, 2003; and the USS Ronald Reagan from April 30, 2003, to January 6, 2005. The evidence shows that the Veteran reported that in 2002 a service member was blown off of the ship and had to be pulled back onto the ship by himself and other servicemembers. He stated that while in Brazil, he nearly shot at an unknown ship that approached the USS Ronald Reagan. The Veteran's attorney stated during the April 2022 Board hearing that the Veteran received hazardous pay. The Veteran's pay records have not been associated with the claims file. On remand, the AOJ should attempt to clarify whether hazard pay was authorized for the Veteran at any time during service. The matters are REMANDED for the following action: 1. After obtaining any necessary releases, obtain all relevant VA records from 2006 to the present and any relevant private medical records not already associated with the claims file. All attempts to obtain the records should be fully documented, and a negative response should be requested if no records are available. 2. Ensure that the Veteran's complete service personnel records are included in the claims file. 3. Submit requests for service department verification of the Veteran's reported stressors during service, to include whether hazard pay was authorized. If necessary, multiple requests should be made to cover the entire periods identified by the Veteran. 4. Then, schedule the Veteran for a VA examination with a psychologist or psychiatrist to determine the etiology of any psychiatric disability. The examiner should review the evidence of record and should note that review in the report. The examiner should: (a.) Diagnose all psychiatric disabilities found or diagnosed during the pendency of the claim. Specifically state whether or not each criterion for a diagnosis of PTSD is met. (b.) Opine whether it is as likely as not that any psychiatric disability diagnosed during the appeal period began in service or is otherwise related to any incident of service, to include the reported stressors in service. The examiner should discuss: (1) the August 30, 2010, mental health assessment report; (2) the February 2016 psychiatric report; (3) January 2017 VA examination; and (4) the April 2022 testimony. (c.) If the examiner determines that any psychiatric disability is attributable to another etiology, the examiner should explain why the other etiology is more likely. A clearly stated rationale with references to the record, diagnostic tests, and medical literature should be provided. (d.) Opine whether it is likely as not that any psychiatric disability is due to, the result of, or caused by the service-connected disabilities, or treatment for the service-connected disabilities. (e.) Opine whether it is at least as likely as not that any psychiatric disability has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities, or treatment for the service-connected disabilities. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.O., 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.