Citation Nr: 1303464 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 09-34 857 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a rib disability. 2. Entitlement to an initial compensable evaluation for lumbosacral spine degenerative arthritis. 3. Entitlement to an initial compensable evaluation for right hand degenerative arthritis status post right ring finger fracture. REPRESENTATION Veteran represented by: Arizona Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1993 to April 2000. This matter comes before the Board of Veterans' Appeals (Board) from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, that, in pertinent part, denied service connection for a disorder of the ribs. The Veteran testified at a Video Conference hearing before the undersigned Veterans Law Judge in November 2012. A transcript of this hearing is of record. In regard to the issues of entitlement to an initial compensable evaluation for lumbosacral spine degenerative arthritis and for right hand arthritis status post right ring finger fracture identified in the title page, the RO decision issued a decision in August 2012 that assigned non-compensable ratings for those disabilities, after granting service connection for the same. The claimant filed a timely Notice of Disagreement (NOD) in November 2012. While such issues are not certified for appeal, the Board finds that there has not been a Statement of the Case rendered with respect to these issues. Therefore, as will be described in further detail in the Remand section of this decision, these issues are in appellate status and a Remand is necessary to direct the RO to render an SOC thereon. (CONTINUED NEXT PAGE) FINDING OF FACT The competent and credible evidence does not establish that the Veteran currently has a diagnosed disability of the ribs. CONCLUSION OF LAW The criteria for establishing service connection for a rib disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Before addressing the merits, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159. Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay (non-medical) evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been satisfied. Via letter dated in April 2007, he was notified of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. The letter also notified him of how VA determines disability ratings and effective dates if service connection is awarded. It accordingly addressed all notice elements and predated the initial adjudication by the RO, which in this case also is the AOJ, in August 2007. Nothing more is required. It follows that an October 2008 and December 2008 letter readdressing all notice elements went above and beyond what is required. Pursuant to the duty to assist, VA is required to aid the claimant in the procurement of service treatment records and other pertinent treatment records, whether or not they are in Federal custody. 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. §§ 3.159(c)(1-3). VA also is required to provide a medical examination and/or obtain a medical opinion when necessary. 38 U.S.C.A. § 5103A(d); 38 C.F.R. §§ 3.159(c)(4). The Veteran's service treatment records have been obtained by VA. No private or VA treatment records have been obtained by VA or submitted by the Veteran. The Veteran has indicated that he traveled to Mexico for all his health care. He was specifically advised to submit those records or to complete a release so that VA could obtain the records. He did not respond to a request that he either provide the address of and authorize the release of treatment records from each private facility. Nor did he provide copies of the requested records. Rather, he stated that his copies of the records were lost during a recent move. It was suggested at the Video Conference hearing that he go to VA for health care, and the record was held open for a period of 60 days for the submission of treatment records in this regard. This period has expired with no treatment records being submitted or even being mentioned as existing. Given the foregoing efforts, the Board is satisfied that VA's duty to assist in obtaining records has been met. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (the claimant has an obligation to cooperate in the development of evidence pertaining to claim, and failure to do so puts the claimant at risk of an adverse adjudication based on an incomplete and underdeveloped record); Wood v. Derwinski, 1 Vet. App. 190 (1991) ("[t]he duty to assist is not always a one-way street. If a [V]eteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence"). No VA medical examination or VA medical opinion has been afforded to the Veteran. The factors for determining whether such medical examination or opinion is necessary are whether there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or that a certain disease manifested during an applicable presumption period, (3) an indication that the disability or symptoms of a disability may be associated with the in-service established event, injury, or disease, and (4) not sufficient competent medical evidence of record to make a decision. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third factor establishes a low threshold and is satisfied by, among other things, medical evidence that suggests a nexus but is equivocal or lacking in specificity and credible lay evidence of continuity of symptomatology. McLendon, 20 Vet. App. at 79. It is unnecessary to provide a VA medical examination or opinion here because these factors have not been met. Discussed below is that, while there is an in-service injury or event, there is no competent, credible evidence of a current disability or symptoms thereof. Also discussed below is that, even if there is a current disability or symptoms thereof, there is no indication this disability or symptoms thereof may be associated with the in-service injury or event. Discussion of the Veteran's November 2012 Video Conference hearing finally is necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The sole issue certified on appeal was identified at the outset of the hearing. It was explained in that information was elicited from the Veteran concerning his in-service injury and his history since then. Though he did not avail himself of the opportunity, noted above was the suggestion made at the hearing that he seek health care from VA and submit the treatment records generated as a result. Significantly, neither the Veteran nor his representative has identified any further development necessary for a fair adjudication of the claim that has not been completed. The record also does not indicate any such development. The Board thus finds that VA's duty to assist has been satisfied. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. at 183. The duty to notify and the duty to assist both having been met, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Service Connection Service connection "basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service . . . or if preexisting such service, was aggravated therein." 38 C.F.R. § 3.303(a); 38 U.S.C.A. § 1110. To establish service connection, there generally must be (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus between the current disability and the in-service disease or injury. Hickson v. West, 12 Vet. App. 247 (1999); Barr v. Nicholson, 21 Vet. App. 303 (2007). Service connection also may be established if the evidence of record reveals chronicity or continuity. 38 C.F.R. § 3.303(b). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. Id.; Barr, 21 Vet. App. at 303. Continuity of symptomatology post-service is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity legitimately may be questioned. Id.; Savage v. Gober, 10 Vet. App. 488 (1997). Further, service connection may be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is presumed for some diseases even when there is no record of such disease during service if certain circumstances exist. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Applicable here are those for presumptive service connection for chronic diseases. 38 U.S.C.A. § 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). First, the Veteran must have served 90 days or more during a period of war or after December 31, 1946. 38 U.S.C.A. § 1112(a); 38 C.F.R. § 3.307(a)(1). Second, the Veteran must have manifested a chronic disease such as arthritis to a compensable degree within one year from the date of separation from service. 38 U.S.C.A. § 1101(3), 1112(a)(1); 38 C.F.R. §§ 3.307(a)(2), (3), 3.309(a). Affirmative evidence rebutting in-service incurrence or aggravation of the disease must be taken into consideration even if the two aforementioned circumstances are met. 38 U.S.C.A. §§ 1113, 1153; 38 C.F.R. §§ 3.307(d), 3.309(a). The Board must account for evidence that it finds to be persuasive or unpersuasive and provide reasons for rejecting any material evidence favorable to the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, an assessment of the probative value of the lay evidence in addition to the medical evidence must be undertaken. Lay evidence indeed may be sufficient by itself to support a claim. Barr, 21 Vet. App. at 307. This is the case where the evidence is both competent and credible. Competency is "a legal concept determining whether testimony may be heard and considered" whereas credibility is "a factual determination going to the probative value of the evidence to be made after the evidence has been admitted." Layno v. Brown, 6. Vet. App. 465 (1994). A lay person is competent to provide testimony or statements relating to facts of events that the lay person observed or that is within the realm of his/her personal knowledge. Id. In weighing credibility, discounting of competent testimony or statements from a lay person may occur "in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). Factors for consideration therefore include a showing of interest, self-interest, bias, inconsistent statements, inconsistency with other evidence of record, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor. See Pond v. West, 12 Vet. App. 341 (1999); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991). "[T]he Board cannot determine that lay testimony or a lay statement lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the lack of such evidence in combination with other factors may lead to the determination the lay testimony or statement is not credible. The benefit of the doubt is given to the Veteran when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. As such, the Veteran prevails when the evidence supports his claim or is in relative equipoise but does not prevail when the preponderance of the evidence is against the claim. Id. Although all the evidence has been reviewed, only the most salient and relevant evidence is discussed below. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Service treatment records document that the following. The Veteran fell down a 10 foot ravine while on night patrol in March 1996. He complained of chest pain immediately thereafter, for which musculoskeletal contusion was diagnosed. He later complained repeatedly of back pain. June 1997 X-rays showed normal bones of the chest, while March 2000 X-rays showed that the visualized bony structures of the chest were unremarkable. Near the time of his separation in April 2000, the Veteran did not complain of any chest or rib symptoms to include pain. He did complain of back pain since he fell off a cliff. No chest or rib abnormalities were detected upon examination then. In his August 2008 Notice of Disagreement (NOD), the Veteran stated that he still experiences rib pain. The Veteran testified at the November 2012 Video Conference hearing that he injured his ribs but did not seek treatment for them during service. He then testified that the right side of his ribcage is caving in, which is uncomfortable. He further testified that he sought treatment in 2002 and 2003 through a care provider in Mexico because that is when he started noticing the caving in and consequential discomfort. Noting the absence of such records or any documented evidence of a diagnosed disability of the ribs, the Veteran was advised that he should submit recent medical evidence that established a disability of the ribs. He was provided 60-days to do so. To date, no records have been submitted. A current disability exists when there is a disability when a claim for it is filed or at any time during the pendency of such claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran submitted his claim in March 2007. There is no medical evidence that he has had a rib disability at any point from this time to present. Indeed, there is no medical evidence whatsoever of record dated during this period. Acknowledgement is given to the Veteran's assertions that he currently has persistent or recurrent symptoms of a rib disability. He specifically has reported discomfort and caving in. Yet symptoms "without a diagnosed or identifiable underlying malady or condition" do not in and of themselves constitute a disability. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001) (specifically discussing the symptom of pain). In that regard, there is no indication that the Veteran has medical knowledge, training, and/or experience, and therefore his is a lay person. A lay person is competent to diagnose a disability only if (1) the disability is simple to identify, (2) he is reporting a contemporaneous medical diagnosis, or (3) his description of symptoms at the time supports a later medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Conditions such as broken bones, flat feet, certain skin ailments, tinnitus, and varicose veins are examples of disabilities simple enough for a lay person to competently identify. Jandreau, 492 F.3d at 1372; Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398 (1995). Rib disabilities (other than broken ribs) inherently are not simple to identify since the musculoskeletal system is complex and since there are numerous such disabilities which sometimes have overlapping symptoms. Indeed, the Veteran has not attempted to identify a specific rib disability. He has only provided vague symptomatology that the Board finds suspect. Indeed, when specifically advised of the need to provide evidence of a diagnosed disability and given the opportunity to submit such evidence, he failed to do so. It is also suspect that the Veteran initially stated that he received treatment for his rib disorder through a doctor in Mexico, and that he later stated that those records were lost when he was asked to provide copies. He has still provided no explanation as to why he has not requested copies of from those providers or completed a medical release. Moreover, it is impossible for the Veteran to simply report a contemporaneous medical diagnosis of a rib disability or for his description of symptoms to be used in support of a later medical diagnosis of such a disability because no such diagnosis has been made. He therefore is not competent to state that he currently has a rib disability. Consideration has also been given to his apparent contention that he has had rib symptoms continuous since his in-service fall. Regarding the credibility of his contention, there is conflict. It is facially plausible that he would experience persistent rib symptoms after a fall. Yet this is inconsistent with his hearing testimony, in which he recounted rib symptoms beginning over a year post-service in 2002. It also is inconsistent with the objective evidence. Other than immediately after the fall, the Veteran did not complain of any rib symptoms during service. To the extent he attempts to explain this away by noting that he had symptoms but did not seek treatment for them, of import is that he did seek continued treatment for back symptoms. It is unlikely the Veteran would have omitted to mention some residual symptoms following the fall when he mentioned others, especially given the close proximity of the back with the ribs. Buczynski v. Shinseki, 24 Vet. App. 221 (2011) (lack of notation of symptoms where such notation would normally be expected may be considered as evidence that the symptoms did not exist). His self-interest in financial gain, in that if service connection is awarded he may receive compensation benefits (the service-connected disabilities, as noted above, both are currently evaluated as noncompensable), lastly cannot be ignored. Continuity of treatment, as opposed to symptoms, is not required. Savage, 10 Vet. App. at 488. It further is reiterated that lay testimony cannot be deemed not credible solely because it is unaccompanied by medical evidence. Buchanan, 451 F.3d at 1331. Nevertheless, that there is no post-service medical evidence in the form of treatment records combined with the preceding discussion leads to the conclusion that the Veteran is not credible in contending continuity of symptomatology. In sum, a rib disability has not been shown by the preponderance of the medical and lay evidence. The benefit of the doubt rule thus is not applicable. Indeed, there can be no valid claim absent a current disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection for a rib disability accordingly is denied on this basis. It is unnecessary to proceed by considering whether the other requirements for establishing entitlement to this benefit are met since doing so would not alter this determination. Consideration of these other requirements nevertheless is undertaken in brief to show that, even if there was a current rib disability, service connection still would not be warranted. An in-service injury or at least event exists. Service treatment records are silent with respect to the Veteran's ribs. However, they do reveal that he sustained a musculoskeletal contusion after falling down a ravine. It is possible, given his complaint of chest pain, that this contusion was in the rib area. Nevertheless, there is no nexus between the aforementioned and the presumed current rib disability. There is no medical evidence of such a nexus. Medical evidence is not necessarily required when the determinative issue involves etiology, however. It indeed is error to suggest that lay evidence can never be enough to establish that there is a nexus between a claimed condition and service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). The Veteran clearly believes there is a nexus. Yet the question of whether there is a nexus in this case is medical in nature. This is because the musculoskeletal system is complex, as discussed above, and there are numerous potential causes of a rib disability. Therefore, only those with medical expertise therefore are competent to opine as to nexus. Jones v. West, 12 Vet. App. 460 (1999). It follows that, as a lay person, the Veteran is not competent to render an opinion that the required nexus exists. Cromley v. Brown, 7 Vet. App. 376 (1995); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). ORDER Service connection for a rib disability is denied. REMAND The issues of entitlement to an initial compensable evaluation for lumbosacral spine degenerative arthritis and for right hand arthritis status post right ring finger fracture unfortunately must be remanded. As noted above, additional development is required concerning these issues. A NOD is a written communication from a Veteran or his representative expressing dissatisfaction or disagreement with an adjudicative determination and a desire to contest the result. 38 C.F.R. § 20.201; see also 38 U.S.C.A. § 7105(b)(2); Anderson v. Principi, 18 Vet. App. 371 (2004); Acosta v. Principi, 18 Vet. App. 53 (2004); Gallegos v. Principi, 283 F.3d 1309 (2002). A NOD must be filed within one year from the date of mailing of notice of the determination. 38 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.302(a). Upon the filing of a timely NOD, a statement of the case (SOC) shall be prepared. 38 U.S.C.A. § 7105(d)(1); see also 38 C.F.R. § 19.29. The Board shall remand for issuance of a SOC if one is not of record. Manlincon v. West, 12 Vet. App. 238 (1999). Notification of the August 2012 rating decision granting service connection for lumbosacral spine degenerative arthritis and for right hand arthritis status post right ring finger fracture was mailed to the Veteran in early September 2012. Contemporaneous with his November 2012 Video Conference hearing, he submitted a statement conveying his desire to file a NOD concerning the noncompensable evaluation assigned to each of these disabilities. The statement is appropriately characterized as a NOD because it clearly expresses his disagreement with and desire to contest the determinations made. As it is dated well before expiration of the one year allotted period, it additionally was filed in a timely manner. To date, however, no SOC has been prepared and associated with the claims file or "eFolder." A remand is necessary so that this can be accomplished. Accordingly, the case is REMANDED for the following action: Provide the Veteran and his representative with a SOC regarding his entitlement to an initial compensable evaluation for lumbosacral spine degenerative arthritis and for right hand arthritis status post right ring finger fracture. In addition to containing the information required by 38 U.S.C.A. § 7105(d)(1) and 38 C.F.R. § 19.29, the SOC must include notification that one or both of the aforementioned issues shall be returned to the Board only if a timely substantive appeal is filed. A copy of it shall be placed in the claims file or "eFolder." The Veteran has the right to submit additional evidence and argument on the issues the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs