Citation Nr: 1302890 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 08-02 741 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for residuals of chest wall injury. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran had active service from September 1987 to September 1991. This matter initially came before the Board of Veterans' Appeals (Board) on appeal, in part, from an October 2006 rating decision by the Seattle, Washington Department of Veterans Affairs (VA) Regional Office (RO). The claims file is now in the jurisdiction of the Denver, Colorado RO. In September 2009, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the Veteran's claims file. In January 2011, the Board, in pertinent part, dismissed the Veteran's claim for service connection for residuals of a chest wall injury based on receipt of the Veteran's September 2009 request to withdraw her appeal in the matter. Thereafter, the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to an August 2011 Joint Motion for Partial Remand (Joint Motion), the Court vacated, in part, the Board's decision with respect to the dismissal of her claim for service connection for residuals of a chest wall injury. In the Joint Motion, the parties noted that the aspect of the January 2011 Board decision that denied her claim for service connection for a left knee disability was not disturbed. In December 2011, the Board remanded this matter for additional development. FINDING OF FACT Any chest injury the Veteran sustained in service was acute and resolved without residual disability; a chronic chest disability was not manifested during the Veteran's service; and the preponderance of the evidence is against a finding that the Veteran has a residual chest disability which is attributable to or related to service. CONCLUSION OF LAW The Veteran does not have any residuals of a chest wall injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of her claim prior to the initial adjudication. An October 2005 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence she was responsible for providing. While the October 2005 letter did not include information regarding degree of disability and effective date criteria, the Board finds that such is not prejudicial to the Veteran as this decision does not grant entitlement to the benefits sought. In addition, it is not alleged that notice in this case was less than adequate. See Shinseki v. Sanders, 556 U.S. 396 (2009) (discussing the rule of prejudicial error). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances of the case. The Veteran's service treatment records (STRs) are associated with the claims file, as are postservice treatment records from VA and private treatment providers the Veteran has identified as having potentially relevant records. The Veteran has also been afforded appropriate VA examination in regard to the claim on appeal. To the extent the Veteran's representative in November 2012 correspondence argued that the most recent, April 2012, VA examination was inadequate as it was not supported by adequate reasons and bases, the Board finds this argument without merit as the examiner found no underlying disability for the Veteran's subjective complaints, reflects familiarity with the entire record, considered the reported history of the Veteran, and conducted a thorough medical examination, noting all findings necessary for consideration of the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). Hence, the RO's actions have substantially complied with the December 2011 Board remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran has also been afforded a hearing before the Board in which she presented testimony regarding the issue decided herein; she was represented during that hearing by a service representative. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In the present case, while the undersigned VLJ did not discuss the basis for the prior determinations, the VLJ asked specific questions directed at identifying whether the Veteran met the criteria for service connection. Neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claim. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. § 3.103(c)(2) have been met. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Accordingly, the Board finds that the duty to notify and the duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. B. Legal Criteria, Factual Background, and Analysis Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a veteran for a long period of time or through a factually accurate medical history reported by a veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). STRs show that in September 1988 the Veteran was seen for left shoulder muscle pain, and on physical examination was noted to have moderate tenderness to the pectoralis major muscle group on the right upper chest above the breast and below the clavicle. She had good range of motion of the shoulder with mild tenderness on shoulder rotation, without edema, erythema, or shortness of breath. The assessment was mild muscle strain of the right pectoralis major. She was again treated in October 1988 for reported chest pains and some difficulty taking deep breaths. On examination, the Veteran had full range of motion of the upper extremities and some tenderness and radiating pain to the right scapula and axilla areas. The assessment was costochondritis, and the Veteran was placed on restriction from physical training for three weeks. STRs show no further complaints or treatment specifically for chest pain until October 1989. Thereafter, the Veteran was evaluated on several occasions for multiple symptoms, including occasional chest pains (described as a burning sensation), shortness of breath, syncope and dizzy spells, and underwent numerous diagnostic studies, including chest x-rays, all of which were essentially within normal limits. She also complained of chest pain in January and October 1990. In May 1991, the Veteran complained of left-sided chest pain. Posteroanterior and left lateral radiographs of the chest revealed no abnormality. On September 1991 service separation examination, the Veteran's lungs and chest were normal on clinical evaluation, and the lungs were noted to be clear to auscultation. She reported a history of having or having had shortness of breath, and pain or pressure in her chest. It was noted that the symptoms of shortness of breath and chest pain were associated with her history of a panic disorder. Postservice treatment records includes private treatment records showing the Veteran's complaint of chest pain in January 1992 after lifting boxes. She again complained of chest pain in February 1992. In August 1992, she complained of chest pain that started after moving heavy furniture. Thereafter, through 1995, private treatment records note multiple complaints of chest pain. VA treatment records include an August 2006 report noting the Veteran's complaint of chest pain due to a panic attack. December 2006 records note her complaint of chest wall pain for years, and the notation that someone suggested to her that perhaps she cracked her sternum during her active service. Over the course of the month, her chest wall pain resolved. At a January 2007 Decision Review Officer (DRO) hearing, the Veteran testified that she was injured when the axle of a cable slipped and hit her in the chest and that she heard a ripping sound. She further testified that she was initially told it was just a bruise, but eventually she was put on limited duty profile for six months because she could hardly lift her arms above her waist. She reported that doctors have indicated she probably cracked her sternum at the time of the original injury, and that she has suffered from inflammation in the chest cavity wall since service. On June 2007 VA examination, the Veteran reported that a metal axle went into her chest and she heard a paper tearing-like sound. On physical examination, there was no bruising, scarring, redness, swelling or edema. There was also no tenderness to palpation. X-rays of the chest revealed the lungs were clear. After review of the Veteran's claims file, the examiner found that the Veteran had no evidence of pathology and thereby did not warrant a diagnosis. VA treatment records further show that in August 2007, the Veteran had an abnormal mammogram. A January 2008 VA treatment record noted her complaint of shortness of breath, suspected to be due to her obesity and her panic disorder. It was further noted that no biopsy was conducted for the abnormal mammogram as the abnormality was not able to be localized. Thereafter, through September 2009, VA treatment records note occasional complaints (and denials) of chest wall pain, shortness of breath, and tenderness to palpation. Notably, September 2009 pulmonary function testing was found to be within normal limits. At the September 2009 Travel Board hearing, the Veteran reported that during her active service, the axle of some communication equipment slipped and hit her in the chest, and that she was placed on limited duty profile for six months. Since the injury in service, she testified that she has experienced inflammation of the chest cavity walls and chest pain. In June 2011, a VA physician opined that the Veteran has a history of chronic chest wall pain secondary to inflammation and musculoskeletal pain. In addition, it was noted that the Veteran had reported she injured her chest during service and was placed on profile for six months following the injury. Since the injury, the Veteran continues to have intermittent flares of chest wall pain. The Veteran had another VA examination in April 2012, performed by a physician who reviewed the claims file. The examiner noted the Veteran's reported injury during service and subsequent ongoing pain. It was further noted that she experiences occasional pain with coughing or deep inspiration, and uses an Albuterol inhaler for shortness of breath associated with her panic disorder. The examiner found that the Veteran did not suffer from a pulmonary disability. Chest x-rays revealed clear lungs. Pulmonary function testing revealed pre-bronchodilator results were normal. The examiner opined that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner found that the Veteran has multiple tender points throughout her body, and not limited to the location of the claimed condition, and there was no indication of worse pain in the chest than other regions of the body (as would seemingly be the case if there was a residual of an injury to the chest). On review of the evidence above, the Board notes at the outset that the Veteran is shown to have received treatment for chest pain multiple times during service. In addition, the evidence shows that she has complained of and received treatment for chest pain intermittently since 1992. However, the Board finds no evidence that the Veteran currently suffers from any ratable residual of a chest wall injury. The Court has stated in Clyburn v. West, 12 Vet. App. 296, 301 (1999), that continued complaints of pain after service do not suffice to establish a medical nexus, where the issue at hand is of etiology, and requires medical opinion evidence. Pain cannot be compensable in the absence of proof of an in-service disease or injury to which the current pain can be connected by medical evidence. Mere pain alone, without a diagnosed or identifiable underlying condition, is not a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In the absence of proof of a present disability, there can be no valid claim. Id. Here, there is no disputing the Veteran had treatment for chest pain during service. For the purpose of this appeal, the Board finds no reason to question her credibility as to an in-service injury. In addition, she is competent to report chest pain. However, both the June 2007 and April 2012 VA examiners found there was no current residual, including respiratory or pulmonary, attributable to or related to the in-service chest injury. The Board attaches significant probative value to these opinions, as they are detailed, consistent with other evidence of record, and include consideration of the Veteran's relevant medical history. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (indicating most of the probative value of an opinion comes from its underlying reasoning, not just from mere review of the claims file, although that too has its importance if evidence in the file may affect the underlying basis of the opinion such as by revealing relevant facts). The VA examiners based their opinions on a review of the claims file, as well as on the Veteran's history as recounted by her and as shown in the record, plus personal examination that included x-rays, and, in the case of the April 2012 examiner, pulmonary function testing. To the extent the VA physician in June 2011 opined that the Veteran suffers from chronic chest wall pain secondary to her in-service injury, the Board finds such opinion lacks probative value. Specifically, as indicated above, it is not disputed that she suffers from chest wall pain and that she had an in-service injury. However, the VA physician in June 2011 did not indicate whether the Veteran suffers from an underlying condition that is the etiology of her pain. Consequently, the opinion only supports that she has chest wall pain following an in-service injury, which is insufficient to warrant service connection. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). The Veteran's own assertions of a nexus between her inflammation of the chest cavity walls and shortness of breath and her in-service injury are not competent evidence in this matter, as that is a medical question clearly incapable of lay observation, and requiring medical expertise. The Veteran has not demonstrated that she has any medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board finds that the 2007 and 2012 VA examiners' opinions are more probative than the Veteran's personal assertions to the contrary because the examiners have medical expertise that the Veteran does not possess. The Veteran is certainly competent to report chest pain and shortness of breath, but she is not competent to ascribe this pain and shortness of breath to a particular diagnosis or, in turn, relate it to her military service, especially when, as here, there is countervailing medical comment. Thus, the most probative evidence establishes there is no present disability related to the in-service injury. Absent a current diagnosis, service connection is not warranted. ORDER Service connection for residuals of chest wall injury is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs