Citation Nr: 23022016 Decision Date: 04/11/23 Archive Date: 04/11/23 DOCKET NO. 18-51 534 DATE: April 11, 2023 ORDER Entitlement to service connection for angina is denied. Entitlement to an initial compensable rating for service-connected lung nodule is denied. Entitlement to an initial compensable disability rating for service-connected costochondritis is denied. Entitlement to benefits under 38 C.F.R. § 3.324 is denied. REMANDED Entitlement to service connection for thyroid cancer is remanded. Entitlement to service connection for valvular disease is remanded. FINDINGS OF FACT 1. The Veteran does not have angina that was incurred in or due to her time in service. 2. The Veteran's service-connected lung nodule has been asymptomatic and has no significant effect on pulmonary function. 3. The Veteran's service-connected costochondritis is not shown to have been manifested by symptoms equivalent to moderate muscle disability of the thoracic muscle group. 4. The Veteran has been assigned compensable ratings for multiple disabilities extending back to the beginning of the appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for angina have not been met. 38 U.S.C. §§ 1101, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307(a), 3.309. 2. The criteria for entitlement to an initial compensable rating for service-connected lung nodule have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.97, DC 6820. 3. The criteria for an initial compensable rating for service-connected costochondritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.73, Diagnostic Code (DC) 5321. 4. The criteria for a separate 10 percent rating under 38 C.F.R. § 3.324 have not been met. 38 C.F.R. § 3.324. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from June 2008 to May 2014. In February 2023, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. This decision reflects the Boar's consideration of the testimony, evidence, and information presented in that hearing, and a transcript of the hearing is in the claims file. SERVICE CONNECTION Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in, or aggravated by, active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection also may be granted for any disease diagnosed after service when all the evidence establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Some chronic diseases are presumed to have been incurred in service if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.§§ 1101 (3), 1112 (a); 38 C.F.R. §§ 3.307 (a), 3.309 (a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). All have a presumptive period of one year following separation from service. A claim will be denied if the evidence persuasively weighs against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 3.102. 1. Entitlement to service connection for angina The Veteran has maintained, generally, that she suffers from angina that is etiologically related to her active duty service. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of 38 U.S.C. §§ 1110 and 1131 as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The record is unclear whether the Veteran has a current diagnosis of angina. Records show that the Veteran has complained of chest pain since service, however medical workup for her complaints have ruled out cardiac involvement and instead diagnosed costochondritis, for which the Veteran has been service connection since her separation from service. While the Veteran may believe she has a current diagnosis of angina, she is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for angina is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. INCREASED RATING Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of a disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes (DCs) identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct periods where the service- connected disability exhibits symptoms that would warrant different ratings). Where entitlement to compensation has already been established, as is the case here, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant." 38 U.S.C. § 5107(b). Thus, the benefit of the doubt doctrine applies "if the competing evidence is in 'approximate balance,'" and when "the evidence is not in equipoise but nevertheless is in approximate balance." Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021) (en banc). However, "the benefit-of-the-doubt rule does not apply" when "the evidence is not in 'approximate balance' or 'nearly equal,'" and "the evidence persuasively favors one side or the other." Lynch at 781-82. 1. Entitlement to an initial compensable rating for service-connected lung nodule An August 2018 rating decision granted the Veteran service connection for a solitary pulmonary nodule and assigned a noncompensable evaluation under diagnostic code 6820 from May 10, 2014, the day following her separation from service. The Veteran contends, generally, that she is entitled to an initial compensable rating. The Veteran's left lung nodule is rated as noncompensable under DC 6820 for benign neoplasms of any part of the respiratory system, which provides for evaluation using an appropriate respiratory analogy. 38 C.F.R. § 4.97, DC 6820. For the following reasons, the Board finds that the Veteran's left lung nodule does not warrant a compensable rating. The claims file does include private treatment records for her lung nodule. Throughout these records it is consistently reported that the Veteran's lung nodule is benign. The Veteran also did not present with pulmonary symptoms such as cough, congestion, or shortness of breath. The Veteran was afforded a VA respiratory conditions examination in February 2016. The examiner noted the lung nodule found on imaging in April 2014. It was considered an incidental finding, and benign. The examiner found that the Veteran's condition did not require the use of medication or oxygen therapy. The examiner noted available pulmonary function testing (PFT) from January 2016 and found that the Veteran has normal lung volume without restriction, air trapping or low expiratory reserve volume. As such, the Board finds that this examination does not support a compensable rating. The Board finds that the Veteran's service connected lung nodule does not warrant a compensable evaluation. The evidence shows that the Veteran's service-connected lung nodule is asymptomatic without any current residuals. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and entitlement to a compensable rating for a service-connected lung nodule is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3, Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021). 2. Entitlement to an initial compensable disability rating for service-connected costochondritis An August 2018 rating decision granted the Veteran entitlement to service-connection for costochondritis and assigned a noncompensable evaluation effective May 10, 2014, the day following her separation from service. The Veteran maintains, generally, that she is entitled to a compensable rating for her service-connected costochondritis. The Veteran's costochondritis is rated under Diagnostic Code 5321 by analogy because the Veteran's costochondritis is not specifically listed in the rating schedule. When an unlisted condition is encountered, it is to be rated under a closely-related disease or injury similar in function and anatomical location. 38 C.F.R. § 4.20. Here, the RO determined that the closest rated disability is that of muscle group XXI, muscles of respiration: thoracic muscle group. The Veteran was afforded a VA muscle injuries examination in February 2016. The examiner diagnosed the Veteran with non-cardiac chest pain - costochondritis. The Veteran reported many years of chest wall pain with muscle pain and fatigue following weightlifting and cardio exercises. The examiner found that the Veteran's muscle injury does not affect muscle substance or function. The Veteran displayed full muscle strength with no evidence of atrophy. The examiner made note that the Veteran is very athletic and reported exercising frequently with high intensity aerobic activities. The examiner noted that muscle pain from exercising is a normal condition that is not considered an injury. The Board finds that the criteria for a higher, moderate, disability rating are not met with respect to the Veteran's costochondritis, so as to warrant a 10 percent or higher rating under DC 5321. Instead, the medical evidence, including a VA in-person examination and review of treatment records, shows intermittent episodes of chest pain with no additional symptoms, providing evidence against the claim that the problem is moderate instead of slight. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and entitlement to a compensable rating for a service-connected costochondritis is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3, Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021). 3. Entitlement to benefits under 38 C.F.R. § 3.324 A veteran suffering from two or more separate, permanent, service-connected disabilities of such character as to clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the rating schedule, may be awarded a 10 percent rating, but not in combination with any other rating. 38 C.F.R. § 3.324. Here, over the course of the period on appeal, the Veteran has been assigned compensable ratings for multiple disabilities extending back to the beginning of the appeal period (January 31, 2012). By its own terms, the 10 percent rating under 38 C.F.R. § 3.324 cannot be assigned in combination with any other rating. The law does not permit it. In such cases, where the evidence is not in dispute, and the law is dispositive, the claim must be denied because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). Therefore, the Board finds that entitlement to benefits under 38 C.F.R. § 3.324 is not warranted as a matter of law. REASONS FOR REMAND 1. Entitlement to service connection for thyroid cancer is remanded. The Veteran maintains that her thyroid cancer is etiologically related to her active duty service, to include exposure to toxins from exposure to toxins from burn pits during service. At the outset, it is beyond dispute that the Veteran has a diagnosis of thyroid cancer as it was diagnosed following a fine needle biopsy performed in October 2016. As noted above, the Veteran separated from service on May 9, 2014. In denying the Veteran's service connection claim, the RO found that the Veteran's October 2016 diagnosis was more than one year following her separation from service and that there were no complaints, diagnosis, or treatment of a thyroid disability during service, that there was no indication that the Veteran was exposed to radiation while in service and that thyroid cancer is not among the diseases associated with burn pit exposure. However, the Veteran's contention is that the condition became apparent within one year of separation from service. More specifically, the Veteran testified before the undersigned that nodules were discovered in her lungs while on active duty, for which she is service connected. Following her separation, as part of treatment for the lung nodules, additional imaging was ordered in December 2014, within a year of her separation from service. That imaging showed an incidental finding of an additional nodule on the Veteran's thyroid. The thyroid nodule measured approximately 0.9 centimeters, and, because it was under one centimeter in length, a thyroid biopsy was not ordered. Ultrasounds in 2015 noted the Veteran's thyroid nodule remained relatively stable, but by 2016 the nodule had grown to be approximately one centimeter in size and a thyroid biopsy was ordered. The October 2016 thyroid biopsy results showed papillary carcinoma. The Veteran testified she quickly had a surgical intervention before the end of 2016 to treat the thyroid cancer. The record also contains a September 2017 note from a treating VA physician which confirms that the Veteran's thyroid nodule was discovered in December 2014. Therefore, the Board finds that an additional medical opinion is necessary to address the Veteran's contention that the condition arose during service or within a year of separation from service. 2. Entitlement to service connection for valvular disease is remanded. The Veteran maintained, generally, that she was diagnosed with valvular disease during service and the condition should therefore be service-connected. Every veteran shall be taken to have been in sound disability when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. §§1111; 38 C.F.R. §3.304 (b). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. §3.304 (b). If a condition is not noted upon entrance into service, then to rebut the presumption of soundness at service entrance, VA must show by clear and unmistakable evidence both that there was a pre-existing condition and that it was not aggravated during or by the Veteran's service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). Defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 82-90 (July 18, 1990). Congenital or developmental "defects" automatically rebut the presumption of soundness and are therefore considered to have pre-existed service. 38 C.F.R. §§3.303 (c), 4.9. Service connection is generally precluded by regulation for such "defects" because they are not "diseases" or "injuries" within the meaning of applicable legislation. 38 C.F.R. §§3.303 (c), 4.9, 4.127; Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). VA's Office of General Counsel has distinguished between congenital or developmental defects, for which service connection is precluded by regulation, and congenital or hereditary diseases, for which service connection may be granted, if initially manifested in or aggravated by service. See VAOPGCPREC 82-90, VAOPGCPREC 67-90. The VA General Counsel draws on medical authorities and case law from other federal jurisdictions and concludes that a defect differs from a disease in that a defect is "more or less stationary in nature", while a disease is "capable of improving or deteriorating." See VAOPGCPREC 82-90 at para. 2. In this regard, the presumption of soundness does not apply to congenital defects because such defects "are not diseases or injuries" within the meaning of38U.S.C. §§1110 and 1111. See 38 C.F.R. §3.303 (c); see also Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009); Terry, 340 F.3d at 1385-86 (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease- or injury-related defect to which the presumption of soundness can apply"). However, a congenital defect can still be subject to superimposed disease or injury. VAOPGCPREC 82-90. If such superimposed disease or injury does occur, service-connection may be warranted for the resulting disability. Id. However, if it is determined during service that a Veteran suffers from a congenital disease, as opposed to a defect, VA cannot simply assume that, because of its congenital nature, the disease must have preexisted service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin, 22 Vet. App. at 396-397. Since the presumption of soundness at entrance attaches, VA must show by clear and unmistakable evidence that the congenital disease preexisted service. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). VA may not rely on a regulation as a substitute for the requirement that it rely on independent medical evidence. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). VA's Office of General Counsel has also confirmed that the existence of a congenital hereditary disease under 38 C.F.R. §3.303 (c) does not always rebut the presumption of soundness, and that service connection may be granted for congenital hereditary diseases which either first manifest themselves during service or which preexist service and progressed at an abnormally high rate during service. See VAOPGCPREC 67-90; 55 Fed. Reg. 43,253 (1990). In short, service connection is available for congenital diseases, but not defects, that are aggravated in service. Quirin, 22 Vet. App. at 394; Monroe, 4 Vet. App.at 515. In cases where the appellant seeks service connection for a congenital condition, the Board must indicate whether the condition is a disease or defect and discuss the presumption of soundness. Quirin, 22 Vet. App. at 394-397. It follows that in such cases where a congenital condition is at issue, a VA medical opinion may be needed to determine whether the condition is a disease or defect, whether the presumption of soundness has been rebutted, and if so whether there was aggravation during service. Id. at 395. The Veteran did not report any cardiac issues on her entrance report of medical history and the entrance examination deemed her heart to be normal. See February 2008 VA entrance examination and report of medical history. Therefore, the presumption of soundness, as noted above, applies. The Veteran had chest pain during service and as part of the workup for that condition (currently service-connected as costochondritis) she underwent an echocardiogram in 2011 which found that she had mild valvular disease with leaky mitral valve. The Veteran was afforded a VA heart conditions examination in January 2016. The examiner diagnosed the Veteran with valvular heart disease which was initially diagnosed in 2011. The examiner opined that the Veteran's condition was congenital and that it was caused by genetic factors. The examiner's explanation consisted of noting that the Veteran's father had "bad valves" which required surgical repair. The examiner did not note whether the Veteran's valvular heart disease was a congenital defect or a congenital disease. The Board regrets the additional delay but finds that the January 2016 examination is inadequate to determine whether the Veteran's condition is a congenital disease or defect and whether the presumption of soundness has been rebutted. Accordingly, an additional opinion is warranted. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate clinician regarding the nature and etiology of the Veteran's thyroid cancer. The examiner is asked to answer the following: (a.) Is it at least as likely as not that the Veteran's thyroid cancer, diagnosed via biopsy in October 2016, arose during service or within one year of the Veteran's separation from service on May 9, 2014? (b.) The examiner is asked to explicitly address the Veteran's contention that the thyroid nodule determined to be malignant was previously incidentally noted in imaging in December 2014 and whether the October 2016 diagnosis was a progression of the same nodule. 2. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran's valvular heart disease. The examiner is asked to answer the following: (a.) Is the Veteran's valvular heart disease congenital or acquired? (b.) If the Veteran's valvular heart disease is acquired, is it at least as likely as not that it began during or is related to service? (c.) If the Veteran's valvular heart disease is congenital, is it a congenital defect or congenital disease? The examiner must provide a detailed answer which explains the difference between a congenital defect and a congenital disease, and apply such distinction to the current case to indicate which description best fits the disability in question. (d.) If it is a congenital disease, is there clear and unmistakable evidence that it both pre-existed service and was not aggravated therein? (e.) If not, is it at least as likely as not that the Veteran's congenital valvular heart disease had its onset during or is related to her active duty service? 3. After undertaking any other appropriate development deemed necessary, readjudicate the issues on appeal based on the additional evidence of record. If the determinations remain adverse to the Veteran, he must be provided with a supplemental statement of the case. An appropriate period of time must then be allowed for a response before the record is returned to the Board for further review. RAY BARTO SLABBEKORN, JR. Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Woehlke 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.