Citation Nr: 1127331 Decision Date: 07/21/11 Archive Date: 07/29/11 DOCKET NO. 04-03 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for residuals, rib fractures. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran served on active duty from September 1981 to September 2001. This appeal initially came before the Board of Veterans' Appeals (Board) from a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board remanded this claim in May 2005, July 2008, and April 2010. FINDINGS OF FACT 1. The Veteran has consistently contended, since his service discharge in 2001, that he sustained fractured ribs in service in 1991. 2. No service treatment records for the period of the Veteran's active service from 1981 through 1997 have been located despite numerous attempts to obtain the records. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for residuals of an injury to the ribs are met. 38 U.S.C.A. §§ 1110, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION In view of the Board's decision to grant the Veteran's claim, a discussion of VA's duties to notify and assist in regards to that claim is unnecessary. Applicable Law Under applicable law, service connection is granted if the evidence establishes that coincident with his service, the Veteran incurred a disease or injury, or had a preexisting injury aggravated, in the line of duty of his active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for certain chronic diseases, such as arthritis, when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. That an injury or event occurred in service alone is not enough. There must be chronic disability resulting from that injury or event. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection can also be found for any disease diagnosed after discharge, if all the evidence establishes it was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires that the evidence establish: (1) medical evidence of a current disability, (2) medical evidence, or lay testimony in some cases, that the injury or disease was incurred or aggravated during service, and (3) medical evidence of a nexus between the current disability and the in-service injury or disease. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). The type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A Veteran is competent to testify as to a condition within his knowledge and personal observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bruce v. West, 11 Vet. App. 405, 410-11 (1998) (finding Veteran competent to describe dry, itchy, scaling skin); but see Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (competent testimony "can be rejected only if found to be mistaken or otherwise deemed not credible). Analysis In this case, the Veteran separated from service in September 2001 after 20 continuous years of active service beginning in 1981. In October 2001, one month after his service separation, the Veteran submitted a claim of service connection for rib fractures. On the application, he stated that he sustained fractured ribs in 1991 and was last treated in 1992 for this injury. The service treatment records which have been located and associated with the claims file are dated from 1997 through 2001. No service treatment records for the period from 1981 to 1997, other than a 1981 inducution examination, have been located. The available service treatment records do not include any notation referencing incurrence of rib fractures or injury. However, those records reference that the Veteran sustained injuries in motor vehicle accidents, including in 1991. The available records from 1997 through 2001 do not include periodic examination reports or other comprehensive medical evaluations which could be expected to reference the claimed rib fractures, in the absence of the need for acute medical treatment of the residuals of rib fractures. Thus, although the available service treatment records do not confirm the claimed rib injury, those records are consistent with the Veteran's contentions. On VA examination conducted in October 2002, the Veteran reported that the area of the rib fractures incurred in service included the floating ribs. He reported that he experienced discomfort when lying on his right side or when he lifted weights. Radiologic examination disclosed no acute rib fractures. Bone mineralization was within normal limits. The examiner concluded that the Veteran was status post fracture of the bilateral ribs with no significant residuals. A December 2002 rating decision denied the claim on the basis that there was no evidence of treatment in service and no evidence of current residuals. In its May 2005 Remand, the Board noted that the service treatment records were incomplete and that the Veteran's claims file had been rebuilt. Following the Board's 2005 and 2010 Remands, attempts were made to obtain service treatment records from the National Personnel Records Center and from the Air Force Base at which the Veteran reported he had been treated for rib fractures. No additional service treatment records for the Veteran were located, despite numerous attempts. The Veteran's report that he incurred rib fractures in service has been consistent during the 10 years of the pendency of this appeal, and there is no evidence to the contrary. The lack of evidence in the service treatment records cannot serve as a basis for denying the claim, since the Veteran's service treatment records are incomplete through no fault of the Veteran. The Board notes that the Veteran submitted the claim before the service treatment records were requested, and was not aware that the 1991 and 1992 records could not be obtained. Although a rib fracture is not an injury which would necessarily be visible to a lay person at the time of occurrence, the Veteran is competent to report that he sought treatment for pain in the rib area and was told that he had a rib injury. Under the circumstances, the Veteran's report that he incurred an injury to the ribs is accepted as credible. The Veteran's claim was also denied on the basis that there was no evidence of current residuals of rib fractures. However, the Veteran has provided lay statements regarding subjective complaints and has reported continuous, although intermittent, residuals of a rib injury. The Board notes that the Veteran first reported such symptoms shortly after his service separation and his description of those symptoms approximately 1 year following his service discharge was apparently accepted as credible by the VA examiner. The examiner did not indicate that the Veteran did not manifest current residuals of a rib injury. Rather, the examiner stated that there were no "significant" residuals. However, the examiner's conclusion that the residuals are not "significant" is not equivalent to a determination that there is no current disability. Under the circumstances, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran incurred an injury in the area of the ribs in service, and continues to manifest a current residual disability from that injury. Service connection for residuals of an injury to the ribs is warranted. ORDER Entitlement to service connection for residuals of an injury to the ribs is granted. ____________________________________________ M.W. KREINDLER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs