Citation Nr: 1306867	
Decision Date: 02/28/13    Archive Date: 03/01/13

DOCKET NO.  10-38 846	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office 
in Columbia, South Carolina


THE ISSUES

1.  Entitlement to service connection for a left hip disorder.

2.  Entitlement to service connection for a left shoulder/arm disorder.

3.  Entitlement to service connection for a rib fracture.

4.  Entitlement to service connection for an upper back disorder.


REPRESENTATION

Appellant represented by:	Elizabeth A. Camputaro, Attorney at Law


WITNESS AT HEARING ON APPEAL

The Veteran
ATTORNEY FOR THE BOARD

L. Barstow, Counsel


INTRODUCTION

The Veteran had active military service from March 2000 to March 2006.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  

In February 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the claims file.


FINDINGS OF FACT

1.  At the February 2011 hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew from appellate review his appeal of the claims for service connection for left hip and left shoulder/arm disorders.

2.  The Veteran's rib fracture is as likely as not related to his active duty.

3.  The Veteran has not had an upper back disorder at any time since filing his claim for compensation.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of an appeal of the claim for service connection for a left hip disorder by the Veteran have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).  
2.  The criteria for withdrawal of an appeal of the claim for service connection for a left shoulder/arm disorder by the Veteran have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).  

3.  The criteria for service connection for a rib fracture are met.  38 U.S.C.A. §§ 1110, 1117, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2012).

4.  An upper back disorder was not incurred or aggravated in service.  38 U.S.C.A. §§ 1110, 1117, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 & 3.326(a) (2012).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The VCAA notice must inform the claimant of any information and 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.  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

Regarding the issue of service connection for a rib fracture, the Board is granting in full that issue.  Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA, cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources.

As for the issue of service connection for an upper back disorder, the Veteran was notified in letters dated in February 2009 and March 2009 of what the evidence must show to establish entitlement to the benefit sought, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf.  The letters also notified the Veteran of the criteria for assigning a disability rating and an effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

Regarding VA's duty to assist, VA obtained the Veteran's service treatment records (STRs), post-service medical records and also secured examinations in furtherance of his claim.  Pertinent VA examinations were obtained in March 2009 and May 2010.  38 C.F.R. § 3.159(c)(4).  The VA examinations obtained in this case are sufficient, as the examiners conducted complete examinations, recorded all findings considered relevant under the applicable law and regulations, and offered well supported opinions based on consideration of the full history of the disorder.  The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issue of service connection for an upper back disorder adjudicated herein has been met.  38 C.F.R. § 3.159(c)(4). 

VA has no duty to inform or assist that was unmet.  The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder.

The Veteran was also provided with a hearing related to his present claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fulfill two duties to comply with the above the 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 this case, the VLJ explained the issue on appeal, but did not note the specific elements necessary to substantiate the service connection claim or suggest the submission of any additional evidence.  This was not necessary, however, because the Veteran volunteered his information regarding his in-service injury, treatment history and current symptoms, thus fully describing the nature and severity of his upper back complaints.  He also indicated that he received private treatment from a chiropractor, whose records were previously obtained.  Accordingly, the Veteran is not shown to be prejudiced on this basis.  The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  As such, the Board finds that, consistent with Bryant, the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). 

II.  Analysis

	A.  Withdrawal of Issues on Appeal

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2002).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2012).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.

In the present case, the Veteran has withdrawn the appeal of his claims for service connection for left hip and left shoulder/arm disorders.  See February 2011 statement received at hearing.  Hence, there remains no allegation of errors of fact or law for appellate consideration of these issues.  Accordingly, the Board does not have jurisdiction to review these claims, and they are dismissed.

	B.  Service Connection

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service.  38 U.S.C.A. § 1110.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  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 may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).  

Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (1995).  

The Board notes that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  See 38 U.S.C.A. § 1110.  In the absence of proof of present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Degmetich v. Brown, 104 F.3d 1328 (1997); Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996).

Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  

Service connection may also be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more.  38 U.S.C.A. § 1117 (West 2002 & Supp. 2012); 38 C.F.R. § 3.317 (2012).

Persian Gulf veteran means a veteran who, during the Persian Gulf War, served on active military, naval, or air service in the Southwest Asia theater of operations, which includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations.  38 C.F.R. § 3.317(d).
For purposes of section 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection.  38 C.F.R. § 3.317(a)(2).

An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  

A medically unexplained chronic multi-symptom illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome.  A medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.  Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained.  38 C.F.R. § 3.317(a)(2).  

Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  38 C.F.R. § 3.317(a)(3).  Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders.  38 C.F.R. § 3.317(b).

Presumptive service connection is warranted with the manifestation of the following infectious diseases: (i) brucellosis, (ii) campylobacter jejuni, (iii) Coxiella burnetii (Q fever), (iv) malaria, (v) mycobacterium tuberculosis, (vi) nontyphoid salmonella, (vii) shigella, (viii) visceral leishmaniasis, and (ix) West Nile virus.  38 C.F.R. § 3.317(c).

For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic.  The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.  38 C.F.R. § 3.317(a)(4).

Lastly, compensation shall not be paid under section 3.317 if there is affirmative evidence that an undiagnosed illness was not incurred during active military service in the Southwest Asia theater of operations during the Persian Gulf War; if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs.  38 C.F.R. § 3.317(c).

		1.  Rib Fracture

The Veteran contends that he fractured his ribs in service when the force of a mortar/rocket attack propelled him into the side of a bunk when stationed in Iraq in April 2004.  See, e.g., January 2009 claim.  

In the current appeal, the Veteran's DD 214 from his period of active military service shows that he had service in Iraq from January 2004 to April 2004.  Accordingly, his participation in the Southwest Asia theater of operations during the Persian Gulf War has been confirmed.  

After reviewing the evidence of record, the Board concludes that service connection for a rib fracture is warranted.  Specifically, the evidence supports of a finding that the Veteran incurred an in-service rib fracture that has left residuals.  

Post-service records show the presence of a current rib fracture that has not yet healed.  A letter from P.C., M.D. received in March 2009 indicates that X-rays of the first left rib showed complete separation of distal head of rib from manubrium.  At a VA examination in March 2009, the Veteran complained of pain; the impression was rib fracture.  A May 2010 VA examiner indicated that the Veteran's fracture was well-healed.  However, a December 2010 letter from Dr. P.C. reveals that the fracture was not yet healed.  Indeed, this letter indicates that the distal end of the rib might require surgical wiring to heal.  In this case, evidence since the Veteran filed his claim in January 2009 demonstrated a current disability.  Namely, the March 2009 and December 2010 letters from Dr. P.C. as well as the March 2009 VA examination reveal a current fracture.  Although the May 2010 VA examination report indicates that the fracture was well-healed, the preponderance of the evidence weighs against such a finding, especially as a December 2010 record confirms that the fracture still existed.  Therefore, the evidence shows a diagnosis of a current rib disorder.

The evidence also supports a finding that the Veteran's current rib fracture is related to his military service.  As noted above, the Veteran's DD 214 confirms his service in Iraq in April 2004.  In this case, the Veteran's STRs show no complaint of, or treatment for, any rib problems.  The Veteran testified that he received over-the-counter pain medication in service after the injury occurred.  February 2011 Hearing Transcript (T.) at 8.  He testified that no X-rays were done in service.  Id. at 7.  Although the Veteran's discharge examination is not of record, the Veteran indicated that he did not complain of rib pain since he had discomfort, but nothing he believed to be "major" as the pain usually subsided after a night's sleep.  See January 2009 statement.  In cases where records are lost or presumed lost, a heightened duty is imposed on the Board to consider the applicability of the benefit of the doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when the veteran's medical records have been destroyed.  See Russo v. Brown, 9 Vet.App. 46 (1996).  
Although the Veteran's STRs do not confirm the incurrence of the in-service injury, a lay statement dated in February 2010 confirms the Veteran's reports of receiving rocket and mortar attacks.  This statement does not specifically indicate that the Veteran's reported injury was witnessed.  However, the evidence does support a finding that the reported injury occurred.  The March 2009 letter from Dr. P.C. indicates that the distal edges of the rib were rounded and therefore not of recent injury.  The injury appeared to be four to five years of age.  The December 2010 letter from Dr. P.C. dated indicates that the fractures were five years of age or more.  The time frames reported by Dr. P.C. in 2009 and 2010 are consistent with the Veteran's report of the injury occurring in April 2004.  Furthermore, statements from the Veteran's wife and father dated in February 2010 and March 2010, respectively, indicate that the Veteran had pain following his return from Iraq.  The statement from his father indicates that the Veteran reported the injury to him and also that the Veteran did not have any other accidents or injuries since his return to the United States that could have caused such a severe injury.  

The Veteran is competent to report his in-service injury.  Layno v. Brown, 6 Vet. App. 465 (1994).  Also, a layperson is competent to testify in regard to the onset and continuity of symptomatology.  Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991).  The Board also finds the Veteran to be credible.  As noted above, the Veteran's report of injury is supported by the buddy statement confirming mortar and rocket attacks in Iraq in 2004, as well as the wife and father statements indicating symptoms after his service in Iraq.  The serviceman is competent to report experiencing mortar and rocket attacks, while the Veteran's father and wife are competent to report what the Veteran told them and witnessing the Veteran's signs of pain and discomfort.  There is nothing in the record to indicate that the lay statements are not credible.  Furthermore, the records from Dr. C.P. indicate that the Veteran's fractures were incurred during his service.  Therefore, the Board concludes that the Veteran incurred an in-service injury.  

The evidence also supports a finding that his current disability is related to the in-service injury.  The Veteran testified that he had no intervening injury between April 2004 and 2009 when X-rays were first done revealing the fracture.  T. at 11.  His father's statement supports this assertion.  Throughout this appeal, the Veteran has reported having a continuity of symptomatology since the in-service injury.  The statement from his wife confirms his reports.  As noted above, the Board finds the Veteran, his wife and father are all competent and credible.  Furthermore, as already noted above, the letters from Dr. P.C. place the timeframe of the fracture during the Veteran's service.  Absent an intervening injury between the in-service injury and the current fracture, the evidence thus establishes a nexus between the Veteran's current disability and his in-service injury.  

The Board observes that, in some instances, lay evidence may be sufficient to establish a nexus.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (rejecting view lay person is not competent to provide testimony regarding nexus).  In this case, the Veteran has provided a competent and credible report of having an in-service rib injury.  Also, the Veteran's contentions throughout this appeal have indicated a continuity of symptomatology since service.  Letters from Dr. P.C. indicate that the Veteran's current fracture occurred four to five years earlier, placing the occurrence of the fracture during the Veteran's military service.  The Veteran has credibly and competently reporting having no intervening injury since the in-service injury.  Thus, the Board concludes that the Veteran's reports, along with the letters from Dr. P.C., are sufficient to establish a positive nexus for a rib fracture.

Therefore, in considering the Veteran's competent and credible contentions, the presence of a current rib fracture, the buddy, father and wife statements, as well as the pertinent medical evidence of record, and in affording the Veteran the benefit-of-the-doubt, the Board finds that it is at least as likely as not that the Veteran has a rib fracture that was incurred in service.  The evidence is in favor of the grant of service connection for a rib fracture.  Service connection for a rib fracture is granted.  38 U.S.C.A §5107 (West 2002 & Supp. 2012).  

		2.  Upper Back Disorder

The Veteran contends that he has an upper back disorder that is due to the in-service rib fracture.  For the reasons set forth above, the Board concludes that the Veteran did incur an in-service injury wherein he was thrown into a bunker from the force of a mortar/rocket attack.   

The Board has conducted a careful review of the record, and concludes that the record is without sufficient evidence supportive of a finding that the Veteran has a current disabling upper back disorder.  In this case, no competent medical evidence has been presented to show that the Veteran has a current upper back disability that is the result of the in-service injury.  At no time since the Veteran filed his claim in 2009 has any diagnosed upper back disability been shown.  A March 2009 VA examiner opined that the Veteran's upper back disorder was related to the rib fracture and was in the precise location of the rib fracture.  It was not a spine condition and pain was relieved when the rib was adjusted by a chiropractor.  A May 2010 examiner also did not diagnose the Veteran with an upper back disorder.  The examiner opined that there was no current objective evidence for or etiology identified for neck or back pain.  Treatment records and statements from the Veteran's chiropractor fail to show the presence of an upper back disorder.  As such, the Board concludes that the evidence of record does not show the presence of a current upper back disorder.  

In finding that the Veteran does not have a current disabling upper back disorder, the Board is cognizant that as the Veteran had service in Southwest Asia theater of operations during the Persian Gulf War, service connection for an undiagnosed illness may be warranted.  However, in this case, the evidence suggests that the Veteran's upper back complaints are actually due to the rib fracture, for which service connection has been granted.  As noted above, the March 2009 VA examiner indicated that the Veteran did not have a spine condition, but his complaints actually pertained to the rib fracture.  No medical professional has provided any opinion indicating that the Veteran has upper back complaints that are indicative of an undiagnosed illness.  Furthermore, the Veteran has not reported other symptoms that may indicate an undiagnosed illness.  

Without a recognized injury or disease entity, VA is not authorized to award compensation for reported symptomatology.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) (Service connection is awarded for "a particular injury or disease resulting in disability"); see also Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999); aff'd Sanchez-Benitez v. Principi, 259 F.3d 1356, 1363 (Fed. Cir. 2001) (The United States Court of Appeals for Veterans Claims (Court) held that symptoms alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.)

In reaching this conclusion, the Board acknowledges a March 2010 opinion from C.B, M.D. indicating that the Veteran's January 2009 X-rays from Dr. P.C. showed spine transverse process degenerative arthritis.  However, the Board finds that such opinion lacks probative value.  Unlike the March 2009 and May 2010 VA examiners who actually physically examined the Veteran, Dr. C.B. did not.  The May 2010 examiner ordered X-rays of the cervical spine and thoracic spine and found that they were normal.  Furthermore, the January 2009 letter from Dr. P.C. who performed the X-rays does not actually indicate that the Veteran had degenerative arthritis of the spine.  A follow-up letter from Dr. P.C. in December 2010 showing the results of additional X-rays also fails to indicate that the Veteran had degenerative arthritis of the spine.  The Board finds that the VA examination reports, as well as the letters from Dr. P.C. showing no upper back disorder are more probative than Dr. C.B.'s opinion as the VA examiners and Dr. P.C. had the benefit of examining the Veteran, which Dr. C.B. did not.  Therefore, the Board concludes that the Veteran does not have an upper back disorder.  

The Board has considered McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) which held that the requirement that there be evidence of a current disability in a service connection claim is satisfied by evidence showing that the Veteran had such a disability at the time he filed claim for compensation, or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to the Board's adjudication of the claim.  The Board again notes, however, that no other evidence of record reflects the presence of a diagnosed disability during that time frame.

Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the diagnosis of an upper back disorder falls outside the realm of common knowledge of a lay person.  See Jandreau at 1377 n.4 (lay persons not competent to diagnose cancer).  The Veteran's own assertions as to diagnosis have no probative value.

Moreover, to the extent that the Veteran's upper back complaints are actually manifestations of his rib injury, for the reasons set forth above, the Board concludes that service connection for a rib fracture is warranted.  In denying service connection for an upper back disorder, the Board finds that the Veteran does not have a spinal disorder separate from his now service-connected rib injury.  

Accordingly, service connection must be denied because there is no competent evidence of a diagnosis of an upper back disability.  See 38 U.S.C.A. § 1110; Brammer at 225; Degmetich, 104 F.3d 1328; Wamhoff at 521.  Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for an upper back disorder.  As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for an upper back disorder is denied.  See 38 U.S.C.A §5107.















CONTINUED ON NEXT PAGE

ORDER

The appeal of the issue of entitlement to service connection for a left hip disorder is dismissed.

The appeal of the issue of entitlement to service connection for a left shoulder/arm disorder is dismissed.

Entitlement to service connection for a rib fracture is granted.

Entitlement to service connection for an upper back disorder is denied.



____________________________________________
MICHAEL MARTIN 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs