Citation Nr: 1315883 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 07-38 067A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for the residuals of an injury to the right ribs and back. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April to November 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The October 2006 rating decision reopened and denied the claim for service connection for residuals of an injury to the right lower rib area, claimed as an injury to the ribs and back. Although the RO reopened the Veteran's claim and denied it on the merits, the question of whether new and material evidence has been received is one that must be addressed by the Board. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In a July 2011 decision, the Board determined that the Veteran had not submitted new and material evidence to reopen the claim. She appealed the July 2011 decision to the United States Court of Appeals for Veterans Claims (Court). In February 2012, the Court granted a Joint Motion for Remand. The July 2011 decision was vacated and the appeal returned to the Board for action consistent with the Joint Motion. In a January 2013 decision, the Board determined that new and material evidence had been presented to reopen the claim for service connection for the residuals of an injury to the right ribs and back. The claim was then remanded. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. FINDING OF FACT The Veteran sustained an injury to her right lower ribs due to a slip and fall during service, but the injury did not cause or aggravate a current disability. CONCLUSION OF LAW A chronic disability of the right ribs and back was not incurred due to active service, and arthritis of the low back is not presumed to have been incurred due to service. 38 U.S.C.A. §§ 1101, 1131, 1112, 1113, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper 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. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2012). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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 (2006). The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must inform a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In this case, the Veteran was provided with a letter in September 2006 that contained all of the notification required by 38 C.F.R. § 3.159, as defined by Dingess and Pelegrini. This letter was provided to the Veteran prior to the initial adjudication of her claim. The Board concludes that the duty to notify has been met. The Board further concludes that the duty to assist has also been met. The Veteran's service treatment records have been obtained. Records have been received from the Social Security Administration (SSA). Private medical records and VA treatment records have been obtained. As instructed in the most recent remand, she was afforded an appropriate VA examination, and relevant opinions have been obtained from the examiners after a review of the relevant history. There is no indication that there is any relevant outstanding evidence or of any further assistance that would be reasonably likely to assist the Veteran in substantiating the claim. The Board's remand also sought to obtain information and assistance from the Veteran in obtaining any additional relevant records. In February 2013, the Appeals Management Center asked the Veteran to identify all sources of treatment for her back disability since discharge from service. The AMC's actions substantially complied with the Board's remand. Cf. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection requires evidence (1) of a current disability; (2) of in-service incurrence or aggravation of a disease or injury; and (3) of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic diseases noted in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (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. Savage v. Gober, 10 Vet. App. 488 (1997) The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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 profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Lay evidence may also be sufficient to establish a nexus between a current disease or disability and service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). As a chronic disease, if arthritis becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of arthritis during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is shown in service and at any time thereafter, service connection will be conceded. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Veteran contends that she sustained an injury to her back and ribs during service. She says that this injury occurred when she was on kitchen patrol (KP) during basic training, and had a slip and fall in which she struck her right side and back. The Veteran reports she has experienced pain in her back and right side on a more or less consistent basis since the injury during service. Service treatment records dated in April and May 1963 show that the Veteran sought treatment for an injury to her right lower ribs after a fall. X-rays performed at that time did not indicate any abnormalities. A questionable diagnosis of "intercostal neuritis" was recorded. The October 1963 service separation examination was normal and absent of any indication of any continuing musculoskeletal problems. The Veteran denied all pertinent symptoms on a report of medical history obtained at that time. The relevant post service medical records include private treatment records dating from August 1985 to January 1986. These show that the Veteran was treated for a lumbar strain which began after she had to lift and reposition a patient in their bed. She had difficulty standing up after this incident. A September 1985 letter from the private doctor shows that the Veteran complained of pain in her back, left leg, and her right arm. The doctor stated that "This all stemmed to an incident approximately one month ago when she was lifting a patient and experienced pain across the lower part of her back and had some aching down into the left leg." Her treatment continued until January 1986. None of these records note a history of a back injury prior to this incident. Private treatment records from Workwell dated from August 1993 to February 1994 include an August 1993 report of an initial visit. At that time, the Veteran noted that she worked as a medical aide, and reported that in July 1993 she and another nursing care assistant were lifting a patient when she experienced pain in her right arm and low back. Although the right arm pain had improved she had experienced persistent low back pain since that time. The Veteran denied previous difficulties with the right arm or low back. A September 1993 magnetic resonance imaging study (MRI) revealed mild herniation at L-2 that was probably not of clinical significance and mild to moderate disc bulge at L-4 to L-5. The remainder of these records is negative for a report of a previous low back or right rib disability. She returned to work in February 1994 with permanent restrictions on the amount she could lift and on excessive bending or stooping. At a VA psychological evaluation in July 1994 the Veteran reported that she had injured her back "one and a half to two years" earlier due to an on the job injury; the evaluation also documented the Veteran's report that "[s]he hurt her back in basic training while doing K.P. duty." VA treatment records dated in July and August 1994 document the Veteran's continuing complaints of low back pain as well as a diagnosis of degenerative joint disease. A VA treatment record dated in July 1994 includes a report of intermittent back pain since 1963, and an additional July 1994 VA treatment record noted the Veteran's report that she injured her low back in "a falling accident" that "occurred in year of 1961 or 1962." This treatment record also indicated that the Veteran had experienced "intermittent back pain since 1963--constant past one year." The Veteran's initial claim for service connection was received in August 1994. A VA examination report dated November 1994 notes the Veteran's report of a "[r]emote injury to the ribs and back on the right side." She further noted that she kept re-injuring her back with different movements. The examiner diagnosed the Veteran with degenerative joint disease of the lumbar spine with radiculopathy. X-rays performed in conjunction with the VA examination revealed degenerative joint disease of the lumbar spine and normal bilateral ribs. The November 1994 VA examiner also opined that "[t]he patient does also have a diagnosis of chronic lumbosacral strain; however, current problems are probably not related to the aforementioned injury." A May 1995 Social Security Administration (SSA) decision determined that the Veteran was under a disability due to degenerative joint disease of her back. The Veteran testified at her SSA hearing that she had served in the military but she did not mention any in-service back or rib injury. The SSA records do not mention the in-service injury elsewhere. Instead, they indicate that the Veteran's initial injury was the July 1993 work related injury. Her period of disability was effective from the date of the July 1993 injury. A January 1996 private treatment note includes a diagnosis of back and right hip pain. A VA physical therapy consultation note dated November 2005 includes the Veteran's report that she injured her back in the Army in the 60's and has had progressing problems since that time. She worked in nursing, which constantly irritated her back disability. A March 2007 VA treatment note includes the history of the fall in service, and was positive for intermittent back pain. A March 2007 X-ray study showed diffuse arthritic changes and scoliosis of the lumbar spine. A November 2007 VA note gives a history of back pain since 1963. In a November 2007 letter, C.R.B., M.D., stated that he began to treat the Veteran for low back pain in 1985. An MRI showed degenerative disc disease at multiple levels with no occult rupture. She was treated conservatively and was able to return to work. The doctor added that he had not seen her for her back on any other occasion until recently. He further added that he could not say when her back problems began other than they have been there since 1985. A second letter from Dr. C.R.B. was received in May 2009. He noted that the Veteran gave a history of suffering a fall in the military, and that she reported suffering chronic pain ever since her fall. The doctor had seen her in 1985 after she suffered pain felt secondary to a strain. He opined that he could not say one way or the other whether her fall caused all these problems. This letter was accompanied by treatment notes dated in 2009, showing treatment for low back pain and repeating the same opinion contained in the letter. The Veteran was provided a VA examination for her disabilities in March 2013. The claims folder was reviewed by the examiner. The Veteran's history of a slip and fall in which she landed on a sink and a bucket in service was noted, as well as her contention that she had had problems ever since the accident. At the conclusion of the examination and record review, the thoracolumbar spine diagnoses included lumbar spondylosis without myelopathy, lumbar strain, and intervertebral disc syndrome with radiculopathy and right sciatic nerve involvement. The diagnosis for the claimed rib disability was chronic right rib strain. The examiner opined that it was less likely than not that the Veteran's thoracolumbar spine and rib condition were incurred in or caused by an injury or event in service. By way of rationale, the examiner cited to the August 1993 records from Workwell in which the examiner recorded the Veteran's statement that she denied previous problems with her right arm or low back and was not being treated for any chronic medical condition. The examiner further noted that at that time the Veteran was a 50 year old who worked as a medical aide, which included bathing, turning, and lifting patients. This work was incompatible with someone with severe chronic low back problems. Instead, her history was more consistent with typical degenerative disease, and she became disabled after the workers compensation injury for which she was assigned a disability rating. Finally, the examiner noted that he was familiar with the doctor who had recorded the August 1993 medical history, in that he followed him as an occupational medicine physician at Workwell. He therefore knew him to be a thorough physician and patient advocate, and to have recorded a reliable history. Analysis The service treatment records confirm that the Veteran suffered a fall during service in which she injured her right lower ribs. The Veteran has also provided written statements describing her injury, and lay statements have been submitted that confirm her slip and fall. Therefore, the requirement for in-service incurrence of an injury has been met. The evidence also shows that the Veteran has a diagnosis of a thoracolumbar spine disability, as well as a disability of the right ribs. These diagnoses have been present since at least the 1990s and were confirmed on the March 2013 examination. This meets the requirement for a diagnosis of a current disability. The only remaining requirement for service connection is for a relationship between the injury in service and the current disabilities. This can be done by competent and credible lay or medical evidence. The Veteran is competent to report having experienced low back pain and right rib pain continuing since the in-service injury. Her reports; however, have not been consistent. She denied all relevant symptoms on the Report of Medical History she completed at discharge from service, and the physical examination conducted at that time showed that her back was normal. These were completed only four months after her injury. The initial post service medical evidence of a low back and rib disability is dated in 1985, which is 22 years after her discharge from service. This treatment was for a recent work related injury, and the Veteran did not report any previous injury. There is no additional evidence of treatment until 1993 after she sustained a second work related injury. The Veteran denied having any previous problems at that time, and made no reference to an injury in service. These reports were relied upon by SSA to award the Veteran disability benefits. The Veteran first related her current back problems to the injury in service in VA records dated 1994, which was after her 1993 work related injury. The March 2013 examiner noted that the Veteran's job included some physical activity that was inconsistent with a chronic back or rib disability, and also noted that the doctor who obtained the 1993 history was reliable. In view of the Veteran's denial of any ongoing symptoms in October 1963 and her denial of a previous injury or disability to the private examiner in 1993, the Board cannot now credit her statements that her back and rib disabilities have been symptomatic more or less continuously since her injury in-service. Hence, her reports of a continuity of symptomatology are not credible. There is no other evidence of a continuity of symptomatology. Continuity of symptomatology is not demonstrated. Similarly, there is no other competent evidence of a relationship between the current back disability and active service. There are VA treatment records dating from 1994 that state the Veteran has had problems since an injury in service. However, these statements were not opinions but were histories that are not supported by the medical record, and a November 1994 VA examiner stated that there was probably no relationship between the injuries in service and the current complaints. The private doctors from 1985 and 1993 did not relate her disability to any prior injuries. The 2007 and 2009 letters from Dr. C.R.B. who had treated the Veteran following her 1985 injury both declined to relate the Veteran's current disabilities to an injury in service. The March 2013 VA examiner found it less likely than not that the current low back disability and right rib disability was related to active service. This examiner reviewed the claims folder and the Veteran's contentions regarding her injury and reports of ongoing symptomatology since service before offering his opinion, and he provided a rationale to support his opinion. There is also no evidence of arthritis in service or to a compensable degree within the first year after discharge from service, so her disability cannot be presumed to have been incurred in service. In the absence of competent and credible evidence showing a relationship between the Veteran's current disabilities and the injury she sustained in service; the preponderance of the evidence is against the Veteran's claim. Reasonable doubt does not arise and the claim is denied. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for the residuals of an injury to the right ribs and back is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs