Citation Nr: 1306079 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 07-07 039 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for skeletal conditions, including knees, fractured ribs, a scarred lung, and hip. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from January 1977 to August 1984, August 1991 to December 1991, September 1994 to December 1994, and September 1996 to May 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which denied the claim. The RO in Oakland, California, currently has jurisdiction of the claim. The Board remanded the claim in August 2008, August 2010, and October 2011 for additional development. The issue was previously remanded as entitlement to service connection for skeletal conditions, including knees, fractured ribs, a scarred lung, hip, and elbow. However, in a RO rating decision dated in July 2012 the Veteran was granted service connection for left forearm contusion (claimed as left elbow condition) and assigned a noncompensable evaluation effective September 8, 2005. The Veteran has not appealed either the initial rating or effective date assigned for this condition. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (the Veteran must separately appeal these downstream issues). Therefore, the issue as it pertains to the Veteran's elbow is not before the Board. FINDING OF FACT Skeletal conditions, including knees, fractured ribs, a scarred lung, and hip, are not the result of disease or injury incurred in military service CONCLUSION OF LAW The criteria for service connection for skeletal conditions, including knees, fractured ribs, a scarred lung, and hip have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). See also Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the duty to notify was satisfied by way of a letter sent to the appellant in November 2005 that was sent prior to the initial rating decision. In this case, although the notice provided did not address the disability rating or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that the claim is being denied and no effective date will be assigned. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA treatment records. The Veteran submitted private treatment records from Smith Chiropractic, Radiological Associates, Sutter Auburn Faith Hospital, Kaiser Permanente, and Auburn Neurology. The appellant was afforded VA medical examinations in conjunction with this claim in December 2010, December 2011, and November 2012. In addition, a VA medical opinion was obtained in February 2012. In August 2008 the Board remanded the Veteran's claim for additional attempt to be made to obtain his service treatment records. A 3101 dated in February 2010 indicates that there were no records regarding the Veteran located at Code 13. In March 2010 the Records Management Center (RMC) responded negatively to a request for records. In August 2010 the Board remanded the Veteran's claim for attempts to be made to obtain records regarding the Veteran from Heidelburg Army Hospital in Germany and from Auburn Imaging in California. The Board ordered all necessary efforts should be taken to obtain the Veteran's service treatment records from 1996 to 1997 and that if the records could not be located a formal finding of unavailability must be issued and associated with the claims file. The Board also ordered that the Veteran be afforded a VA medical examination. Subsequently, Heidelberg Army Hospital provided a negative reply in regard to records regarding the Veteran and the Veteran was afforded a VA medical examination in December 2010. In October 2011 the Board remanded the claim for additional efforts to be taken to obtain the Veteran's service treatment records from 1996 to 1997, including the issuance of a formal finding of unavailability if the records were not located, for arrangements to be made to obtain medical treatment records from Auburn Imaging in California and chest x-rays from UC Davis, for complete VA treatment records to be obtained and associated with the claims file, and for the Veteran to be afforded a VA examination. In November 2011 the Veteran was sent a letter requesting that he provide authorization for VA to obtain private treatment records on his behalf or that he submit the evidence on his own behalf. Additional VA treatment records were obtained and associated with the claims file and the Veteran was afforded additional VA medical examinations in December 2011 and November 2012. A VA medical opinion was obtained in February 2012. A formal finding of unavailability of service treatment records for the period from 1996 to 1997 was issued in April 2012. As such, based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's remands. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002); see also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 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 v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the postservice symptoms. Savage v. Gober, 10 Vet. App. 488 (1997). Service connection is also warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). 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, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. 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, 492 F.3d at 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). 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). The Veteran seeks entitlement to service connection for skeletal conditions, including knees, fractured ribs, a scarred lung, and hip. The Veteran was afforded a VA Compensation and Pension (C&P) examination in April 1995. After examination the Veteran was diagnosed with joint pains, multiple joints, found only in the knees on examination, especially the left knee. The Veteran was diagnosed with patellofemoral syndrome. The examiner noted that the Veteran's condition did not fall into any of the normal arthritic-type diseases. There was more of a diffuse, regional myofasciitis noted, and anterior patellofemoral syndrome greater on the left than right. The examiner indicated that this may have been a reaction to the Veteran's flu immunization as the symptoms occurred within 30 days of receipt. A VA medical opinion was obtained in June 1996. The orthopedic surgeon stated that the Veteran had diffuse regional myofasciitis, patellofemoral syndrome, bilateral diagnosed in April 1995. This was noted to be four months after separation from service. On separation the Veteran's urinalysis was noted to be normal, hematology was normal, and clinical evaluation was noncontributory. The surgeon rendered the medical conclusion that the Veteran's chronic condition manifested by painful joints was not supported by evidence in the service treatment records. In December 1996 the Veteran was diagnosed with pneumonia. An Individual Sick Slip dated in May 1997 revealed the Veteran had a right hip hematoma and was excluded from running. In May 1997 the Veteran reported a right hip injury in April 1995. The Veteran was also noted to report treatment for pneumonia in 1997 and that on x-ray the doctor saw a spot. He was noted to have injured his right hip, right and left knees, and to have painful swelling. The impression of an x-ray of the chest, dated in May 1997, was mild degenerative changes in the thoracic spine; arteriosclerotic vessel disease; cardiac silhouette and pulmonary vasculature normal; no effusions, focal infiltrates, nor hilar adenopathy; and no acute pulmonary disease. In September 1997 the Veteran was afforded a VA C&P examination. After examination the Veteran was diagnosed with "some type of peculiar myofascial syndrome." X-rays of the right and left knee revealed no frank post traumatic bony deformity or remarkable arthritic changes. The Veteran's physician completed a Clinical Evaluation in Support of Military Physical Profile in April 1999. The diagnosis provided was pain and swelling of the knee. The Veteran was noted to have undergone arthroscopy of the knee and draining of fluids. It was indicated that the Veteran was prohibited from lifting frequently or bending. A treatment note reveals that the Veteran reported right hip pain. In an August 2002 decision, the Board granted service connection for myofascial syndrome. In a September 2002 rating decision, the RO effectuated the grant of service connection and assigned a 40 percent rating, effective from February 10, 1995. In December 2010 the Veteran was afforded a VA C&P examination. In regard to his ribs, the Veteran reported that he slipped on a snow covered metal loading ramp while carrying a heavy pack and injured his ribs in the fall. The Veteran reported that there was no treating facility but that a medic on board the airplane wrapped his chest. He reported that he was subsequently evaluated and was told that he may have broken ribs. The Veteran stated that he was sent to a clinic in Heidelburg where he underwent physical therapy. It was noted that the Veteran had not been treated for a rib condition at that time and that his current symptoms were a snapping sensation in the left side that occurred about two to three times a year when he was lifting something. He reported that he told his private family doctor but that he had evaluated for this condition. The examiner noted that there was no history of hospitalization or surgery, bone neoplasm, osteomyelitis, inflammation, fracture site motion, deformity, fever, or general debility. There was no need for assistive devices for walking and the condition did not affect the motion of a joint. It was noted that there was a history of trauma to the left lower ribs in 1997 and that the Veteran had flare-ups every five to six months that lasted one to two days. The severity of the flare-ups was moderate and there was no limitation of motion with a flare-up. The flare-ups were noted to be precipitated by lifting or moving something. Physical examination revealed no evidence of leg shortening, bone abnormality, joint abnormality, signs of active infection, feet of abnormal weight bearing, functional limitation on standing, functional limitation on walking, genu recurvatum, signs of bone disease, or malunion of the os calcis or astragalus. It was noted that the Veteran had vague left sided lower anterior lateral rib cage tenderness and that there were no abnormal objective findings on exam. X-rays of the ribs revealed the ribs to appear intact with no radiographic evidence of fractures. The Veteran was diagnosed with subjective report of left anterior lateral rib trauma in military, no objective residuals found on x-ray. In regard to the Veteran's knee condition, the Veteran reported that he was in a Humvee accident while stationed in Germany and injured the left knee. He was treated at a Military clinic and given antiinflammatory medication. Since that time he reported left knee pain whenever the weather changes. He has not had this medically evaluated or treated since leaving the military. The Veteran reports that he sees a chiropractor, Dr. S., in Auburn. He reported that his doctor told him there was fluid in the knee and was told to have adjustments, exercise and vitamin D for knee pain. The Veteran reported that "[i]t is not extremely painful." Current complaints were knee pain when it is cold and if he walked a lot. In regard to the Veteran's hip condition, the Veteran reported that he was injured in a rough landing in a helicopter wherein he hit the cab of the helicopter with his right hip. The hip hurt at that point but a few days later the pain went away and he did not think about it. In about 2003, he had right hip pain that started to bother him one to two times a year. The pain lasted for a few days. He reported that he takes Motrin and the pain eventually resolves. He last had hip pain (right) in August of 2010 and reported that he has not been evaluated for a right hip condition. After physical examination the Veteran was diagnosed with subjective report of bilateral knee pain in the military and post military. There was no specific knee diagnosis was found in the service treatment records or since military discharge, and there was no current diagnosis specific to a bilateral knee abnormality. The examiner noted a lack of objective clinical findings and notation in records. The Veteran was also diagnosed with subjective report of right hip pain in the military with no specific right hip joint condition identified in military records or separation physical or ratings examination. On examination the Veteran had right hip pain typical of radicular pain from the lumbar spine area and no specific right hip joint medical diagnosis was identified based on review of records, physical exam and x-ray. The Veteran was noted to have multiple joint and muscle pains, myofacial pain syndrome. In regard to the Veteran's lung, the Veteran reported "I had a problem with my stomach - they did a series of x-rays (UC Davis) and they told me I had a scarred lung." He was told that he needed to take care of this and was told to get regular x-rays and make sure it was not affecting his health. The Veteran related this to his military service based upon exposure to fires in Bosnia. He reported no pulmonary symptoms. He later reported dyspnea with exertion and angional chest pain which he associated with his cardiac condition. The examiner noted that there was no clinical indication of any need to order another chest x-ray after consideration of x-rays in 1997. The examiner found that there was no current evidence of a scarred lung and no records were provided to support this claim. The 1997 chest x-ray reports were negative for scarred lung or other pulmonary abnormality. The examiner rendered the opinion that it was less likely as not that the Veteran's currently diagnosed skeletal conditions had their onset during active service or were related to any in service disease or injury. The examiner reasoned that the service records did not specify a specific knee or hip disorder and that although pain was reported upon examination at separation from service, there were no abnormal objective findings. Upon examination, in the same year as he was discharged, the Veteran was diagnosed with myofascial pain syndrome and there was no mention of joint specific injuries or diagnosis. However, the findings were deemed compatible with his myofacial pain diagnosis. The examiner further noted that a 1997 Kaiser note is in regard to a back complaint and elevated blood pressure after returning from Bosnia, but there is no mention of other joint complaints or abnormalities. The Veteran's knee and hip x-rays report a symmetrical degenerative joint disease, which were noted to be expected findings in a person of this age, weight and prior activity level. The examiner stated that the bilaterally tender and taut iliotibial band insertion site of the lateral knee is not a trauma related finding, but usually due to overuse or poor stretching of the lateral upper leg. It was noted that the Veteran sees a chiropractor but that those record were not included in the claims file. The examiner continued to state that right hip pain and then right leg numbness following right hip flexion on exam is not unique to the hip joint but typical of a referred low back radicular pain he has a non-service connected diagnosis of degenerative disc disease of the lumbosacral spine by record review. Finally, the examiner noted that the Veteran is service connected for myofascial pain and that he has multiple joint and muscle pains consistent with this diagnosis. The examiner found that review of records, x-ray and physical exam do not at this point in time identify another joint condition with onset in service. In a statement dated in July 2011 a chiropractor stated: Entitlement to service connection for skeletal conditions, including knees, fractured ribs, scarred lung, hip and elbow denied. [The Veteran] has been treated at [this office] during the past 10 years. The service connected injuries sustained above have had an effect on his health. These conditions are pertinent to continue in determination of his future health conditions. In December 2011 the Veteran was afforded a VA C&P examination. In relevant part, the Veteran was noted to have had pneumonia in 1996. The Veteran reported that he was told that he had a scar on his lung that was an incidental finding on an x-ray that was taken of his abdomen in 2000. The Veteran was not found to have any of the listed pulmonary conditions and x-rays revealed the lungs to be well expanded and clear. In February 2012 a VA examiner rendered the opinion that it is less likely as not that the Veteran has a pulmonary condition caused by or a result of his time in service. The examiner noted that the basis of this opinion was that the Veteran did not have a current pulmonary condition. The Veteran was afforded a VA C&P examination in November 2012. The Veteran was diagnosed with fibromyalgia of both hips with the left greater than the right. In addition the Veteran was diagnosed with minimal degenerative joint disease that is so slight that it was not believed to be the cause of pain symptoms. The Veteran was diagnosed with fibromyalgia of both knees with the left greater than the right. The Veteran was also diagnosed with minimal degenerative joint disease of the knees that was so slight that it is not believed to be the cause of the pains symptoms. The Veteran was noted to not have any rib fractures. The examiner noted that x-rays in 1997 did not reveal any rib fractures and that x-rays do not reveal any evidence of any old (healed) rib fractures. The examiner noted that a more likely explanation of the Veteran's left lateral chest pain is his fibromyalgia syndrome. The opinion was rendered that the Veteran hip and knee conditions were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Veteran's increasing tenderness in the hips, knees, elbows, and other joints and muscles were noted to be diagnosed as fibromyalgia. The examiner reported that such diagnosis fully explains the Veteran's symptoms. X-ray of the joints in question failed to show any significant arthritis, including no evidence of post-traumatic arthritis, nor any tendon calcifications. The examiner stated that the Veteran's pain in joints and muscles evolved during the same time frame making this painful condition a generalized body phenomenon. The Board finds that entitlement to service connection for skeletal conditions, including knees, fractured ribs, a scarred lung, and hip, is not warranted. In regard to the Veteran's claim regarding a disability due to fractured ribs, the Board acknowledges that the Veteran has reported that he injured his ribs in a fall in service and that he has reported a snapping sensation in the area of the ribs. However, upon examination in December 2010 the Veteran was diagnosed with subjective report of left anterior lateral rib trauma in military and no objective residuals on x-ray. In addition, upon examination in November 2012 it was noted that x-rays in 1997 did not reveal any rib fractures and that x-rays did not reveal any evidence of any old rib fractures. The examiner noted that a more likely explanation of the Veteran's left chest pain was his fibromyalgia syndrome. As such, the preponderance of the evidence is against a finding that the Veteran has a disability due to fractured ribs, separate from the Veteran's service-connected fibromyalgia, that had its onset during active service or is related to any service disease or injury. In regard to the Veteran's claim regarding a disability due to scarred lung, the Board acknowledges that the Veteran was treated for pneumonia in service and has reported that he was told after x-ray that he had a spot on his lung. However, upon chest x-ray at examination at separation from service in May 1997 the Veteran was not found to have any effusions, focal infiltrates, or hilar adenopathy, and there was no acute pulmonary disease. Upon examination in December 2010, the Veteran's 1997 chest x-ray reports were noted to be negative for scarred lung or other pulmonary abnormality. The examiner found that there was no current evidence of a scarred lung. Upon examination in December 2011 x-rays were noted to reveal that the Veteran's lungs were well expanded and clear. A VA medical opinion, dated in February 2012, indicated that it was less likely as not that the Veteran has a pulmonary condition caused by or a result of his time in service. As such, the preponderance of the evidence is against a finding that the Veteran has a disability due to scarred lung that had its onset during active service or is related to any service disease or injury. In regard to the Veteran's claim regarding knee and hip disabilities, the Board acknowledges that service treatment records reveal that the Veteran was noted to have injured his right hip and right and left knees and that a physician completed a Clinical Evaluation in Support of Military Profile in April 1999 that revealed that the Veteran had pain and swelling of the knee and that he had undergone arthroscopy to drain fluid from the knee. In addition, the Board acknowledges that upon examination in April 1995 the Veteran was noted to have patellofemoral syndrome. However, the examiner noted that the condition did not fall into any of the normal arthritic-type diseases. Upon examination in December 2010 the Veteran was diagnosed with subjective report of left anterior lateral rib trauma in military, no objective residuals on x-ray. The examiner diagnosed the Veteran with subjective report of bilateral knee pain in military and post military, no specific knee diagnosis found in service medical records or since military discharge, and no current diagnosis specific to a bilateral knee abnormality. The examiner noted a lack of objective clinical findings and notation in records regarding the knee. The examiner further diagnosed the Veteran with subjective report of right hip pain in military with no specific right hip joint condition identified in military records or separation physical or ratings exam. It was noted that the Veteran had no specific right hip joint medical diagnosis and that the Veteran had myofascial pain syndrome. The examiner rendered the opinion that it was less likely as not that the Veteran's diagnosed skeletal conditions had their onset during active service or were related to any service disease or injury. The examiner found that the Veteran's knee and hip degenerative joint disease were expected findings in a person of his age, weight, and prior activity level. In addition, the examiner noted that the findings regarding the lateral knee is not trauma related but usually due to overuse or poor stretching. The right hip pain was noted to not be unique to the hip joint but typical of low back radicular pain and that the Veteran had a diagnosis of degenerative disc disease that was not service-connected. Lastly, the examiner indicated that the Veteran was in receipt of service connected benefits for myofascial pain and that the multiple joint and muscle pains were consistent with this diagnosis. After examination in November 2012 the Veteran was diagnosed with minimal degenerative joint disease, as well as, fibromyalgia of the knees and hips; however, the examiner noted that the degenerative joint disease was so slight that it was not believed to be the cause of the Veteran's pain symptoms. The opinion was rendered that the Veteran hip and knee conditions were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner rather indicated that the Veteran's service-connected fibromyalgia diagnosis fully explains the Veteran's symptoms. As such, the preponderance of the evidence is against a finding that the Veteran has knee and/or hip disabilities, separate from the Veteran's service-connected fibromyalgia, that had their onset during active service or are related to any service disease or injury. As the preponderance of the evidence is against a finding that the Veteran has skeletal conditions, including knees, fractured ribs, a scarred lung, and hip, separate from his already service-connected myofascial pain syndrome, that had their onset during active service or were related to any service disease or injury, entitlement to service connection is denied. ORDER Entitlement to service connection for skeletal conditions, including knees, fractured ribs, a scarred lung, and hip, is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs