Citation Nr: 1316334 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 11-18 382A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a right lung disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from June 1952 to June 1958. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In that decision, the RO denied entitlement to service connection for a right lung disability. The RO provided notice of the November 2010 rating decision to the Veteran that same month. In January 2011, the Veteran requested to have his claim of service connection for a right lung disorder reopened. Along with this request, the Veteran submitted a lay statement which was not previously of record, and which raises a reasonable possibility of substantiating the Veteran's claim. Thus, the evidence received at the RO at the time the Veteran requested reconsideration of his claim of service connection for a right lung disability is new and material. As set forth in 38 C.F.R. § 3.156(b), when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, if a veteran merely states that he wishes to reopen his claim before the appeal period ends, but does not submit new and material evidence with that request, then his statement will be accepted as a new claim and not as new and material evidence relating to the original claim. See Voracek v. Nicholson, 421 F.3d 1299 (Fed. Cir. 2005). In this regard, the Veteran's original claim of service connection for a lung disability was denied by way of a November 2010 rating decision. Although the Veteran did not specifically appeal that determination, he did request reconsideration of his claim before the one-year appeal period had expired; and, he submitted new and material evidence with his request for reconsideration. Because new and material evidence was received within a year from the November 2010 rating decision which denied service connection for a lung disability, and because the RO later adjudicated a claim of service connection for a right lung disability on a new and material basis, that was received in January 2011, such a submission kept the November 2010 rating decision from becoming final. See Young v. Shinseki, 22 Vet. App. 461, 469 (2009). Therefore, the issue on appeal is recharacterized as entitlement to service connection for a right lung disability. 38 C.F.R. § 3.156(b). Although the RO did not need to subsequently reopen the claim, it did so anyway, in a May 2011 rating decision, but subsequently denied the claim on the merits. The Veteran's Notice of Disagreement with that decision was received at the RO in May 2011. The RO issued a Statement of the Case (SOC) in February 2012. The Veteran perfected his appeal with the submission of a timely substantive appeal (VA Form 9), which was received at the RO in March 2012. The case was remanded back to the RO in December 2012 for additional development of the record. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The documents in the VVA file have been reviewed, and all relevant records are either duplicative of the evidence in the paper claims file or are separately identified and summarized below. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran does not have a current lung disability that had its onset during service or within the first post-service year, and no current lung disability is shown to be related to any event, injury or disease in service. CONCLUSION OF LAW A lung disability was not incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated March 2010. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a service connection claim, and the relative duties of VA and the claimant to obtain evidence. The letter also notified the Veteran of how initial disability ratings and effective dates are assigned for all grants of service connection, pursuant to the holding in Dingess. The Veteran responded with a statement (which also pertained to other claims that were pending at that time) that he was involved in an overturned truck accident in service in 1953 and it was during this time that he fractured his ribs and punctured his right lung. The Veteran also provided lay statements from people to support his claim. Additional private treatment records from 1976 and 1979 were obtained. With regard to VA's duty to assist, the RO scheduled the Veteran for a VA examination in August 2010. The Veteran appeared for the scheduled VA examination. The claim was denied in November 2010. In response, the Veteran requested a copy of his service treatment records (STRs), and provided a statement in support of his claim. The RO sent the Veteran a copy of his STR's in January 2011. The case was remanded back to the RO for additional development of the record. In particular, the Board found that the August 2010 VA examination was inadequate for the purpose for which it was administered. A subsequent examination was scheduled for the Veteran and the Veteran appeared for that examination in February 2013. The February 2013 examination is adequate, as it is based on a complete review of the record, including the Veteran's statements and a physical examination. The Veteran's opinion relies on sound medical principles, as well as an extensive chronological history of medical findings during service and since service. Thus, the VA examiner's opinion in February 2013 is highly probative. A review of the Veteran's Virtual VA folder reveals that the RO obtained and associated with the file all outstanding VA treatment records generated since March 2010, as directed in the December 2012 remand. The agency of original jurisdiction (AOJ) substantially complied with the December 2012 remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand 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). In light of the notices sent to the appellant, as discussed above, the duty to notify has been met. As noted above, VA has obtained service treatment records. VA has assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, obtained medical opinions as to the likely etiology of any diagnosed lung conditions and/or whether any diagnosed lung condition as likely as not had its onset during service or is otherwise related thereto. The Veteran was afforded an opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Service Connection The Veteran seeks service connection for a lung disorder. The Veteran maintains that he has a current lung disorder that resulted from an overturned truck accident in service in August 1953. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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. 38 C.F.R. § 3.303(d). A Veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111; VAOPGCPREC 3-2003. The presumption of soundness is rebutted only where clear and unmistakable evidence shows that the condition existed prior to service and that it was not aggravated by service. See VAOGCPREC 3-2003. The General Counsel concluded that 38 U.S.C.A. § 1111 requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011). In sum, when no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C.A. § 1153. If this burden is met, then the Veteran is not entitled to service-connected benefits. As explained in Wagner, 370 F.3d at 1096, and more recently in Patrick, "both the plain language and legislative history of section 1111 make clear that the presumption of soundness can only be rebutted by clear and unmistakable evidence both that a condition existed prior to service and that it was not aggravated by service." Patrick, 668 F.3d at 1328. To satisfy the second requirement for rebutting the presumption of soundness, the government must show, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The clear and unmistakable evidentiary standard applies to the burden to rebut the presumption, but this standard does not require the absence of conflicting evidence. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). However, if the government fails to rebut the presumption of soundness under section 1111, the Veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). As noted, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions," Id. at (b)(1). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competent and credible lay evidence may establish the presence of observable symptomatology and, in certain circumstances, may provide a basis for establishing entitlement to service connection. When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh the lay testimony and make a credibility determination as to whether it supports service connection. See, e.g., Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Medical evidence is therefore not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Nonetheless, although claimants may be competent to provide the diagnoses of simple conditions, such as a broken leg, separated shoulder, pes planus (flat feet), tinnitus (ringing in the ears), varicose veins, etc., they are not competent to provide evidence on more complex medical questions beyond simple observations. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (indicating lay 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 professional). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). Even if lay testimony is competent, should VA find it to be mistaken or lacking credibility, the Board may reject it as unpersuasive. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board may find a lack of credibility in, for example, conflicting medical statements or witness biases. Id at 1337. See also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). The lack of contemporaneous medical evidence is also relevant; however, the mere lack of such evidence may not constitute the sole basis for discrediting the lay evidence. Id. The Veteran asserts that he has a current right lung disability as a result of an injury suffered during service in 1953. A review of the Veteran's STRs shows that no pre-existing lung injury or car accident was noted on the Veteran's entrance physical in June 1952. The STRs also show that the Veteran was injured in an auto accident in August 1953, but there is no indication that the Veteran was treated for a lung condition at that time. Instead, the Veteran was treated for lumbar spine pain and a broken finger. However, prior to the accident, in January 1953, there is a record noting complaints of chest pain. A chest x-ray was negative and the examiner indicated that examination of the lungs was entirely negative. In March 1954, the Veteran presented to sick call with "lung trouble." He reported having a feeling that his lung was going to stop. He also reported pain. The chest was assessed as ok, and there was no diagnosis indicated. In January 1956, the Veteran reported pain in the chest at night. It was noted at that time that the Veteran had injured his lung in a car accident in 1949. More specifically, there was a notation that the Veteran had a rib fracture and pneumothorax in 1949. Examination and x-ray were negative. In May 1958, x-rays of the lungs, taken in conjunction with a severe viral infection, indicated that lung markings in the right mid lung field were still very slightly increased. Otherwise, the heart and lungs appeared normal. Regarding the Veteran's discharge examination, he checked the box marked "yes" when referring to a "rupture" on his Report of Medical History. The Report of Medical Examination, however, specifically noted that no rupture was found; and, a consultation report notes that despite the Veteran's belief that he had a right-sided inguinal hernia, examination findings confirmed that he did not have any hernia; and, there was no mention of any lung condition, pulmonary insufficiency or chest pain. As the entrance examination found no abnormality with respect to the lungs, the Veteran is presumed sound at entry into service. There is nothing recorded at the time of entry indicating that the Veteran injured his lung in a car accident prior to service, or that he had any existing lung condition at that time. Furthermore, the presumption of soundness at entry is not rebutted because clear and unmistakable evidence showing that a lung condition pre-existed service and was aggravated by service is lacking. Although an STR from 1956 suggests that the Veteran injured his lung and ribs in a car accident in 1949, the Veteran has rejected this notion, and has provided lay statements from those who knew him prior to his entry into service who stated that the Veteran was never in an automobile accident in 1949 and never injured his lung or fractured his ribs in 1949. Because no such pre-existing injury was noted at discharge, and because the Veteran has provided lay evidence to the contrary, there is some question as to the accuracy of the 1956 STR as it pertains to the Veteran's involvement in an automobile accident in 1949. In other words, the presumption of soundness is not clearly and unmistakably rebutted by evidence that clearly and unmistakably shows the existence of a pre-existing car accident and resultant injury to the right lung. As the presumption of soundness at entry is not rebutted, the claim is one of service connection. At a VA examination in August 2010, the Veteran reported that he was injured in a truck accident in service and suffered, among other injuries, fractured ribs and a punctured lung on the right side. The Veteran indicated that he currently uses an inhaled bronchodilator daily. It was also noted that the Veteran was a smoker. The examination report noted a positive history of wheezing; dyspnea (on mind exertion); anorexia; night sweats; and bronchiectasis. Curiously, however, the report noted no history of spontaneous pneumothorax, among other lung-related issues which were listed under the category of "No history of:" On physical examination, the examiner noted no cardiac findings, but did indicate right abnormal breath sounds, with decreased breath sounds on the right. The examiner noted that the Veteran had moderately limited diaphragm excursion and moderately limited chest expansion. The examiner indicated that neither of those conditions was associated with pulmonary restrictive disease. X-rays revealed minimal right pleural based scarring, and right 5th to 7th rib lateral aspect old fracture deformity. Vertebral spurring was also noted. There was no pleural effusion. The examiner first indicates that the Veteran has a diagnosis of residuals of a crush injury and right pneumothorax associated with a right lung injury, but opined that the residuals of right sided thoracic crush injury were less likely than not caused by or a result of a crush injury to the right side of the thorax (due to an overturned truck) on active duty. The examiner reasoned that there was no evidence of a thoracic injury in any of the STRs; and, although there was a record of treatment in response to the truck accident, it only addressed the lumbar area and the right 5th phalanx fracture. The examiner also pointed out that no lung or thoracic abnormality was noted on the discharge physical in 1958. The RO denied the Veteran's claim, citing both the opinion of the August 2010 VA examiner, and the STR which noted that the Veteran had a pre-existing car accident in 1949 and suffered lung and rib injuries at that time, with no evidence of aggravation in service of these pre-existing disabilities. In response to the RO's November 2010 decision, the Veteran submitted an NOD indicating that he was never in any car accident prior to the in-service truck accident in August 1953. He reported that the STRs referring to such a 1949 car accident are in error. In support of his assertions, the Veteran submitted a lay statement from an acquaintance who reported that the Veteran lived and worked with her husband's family between 1946 and 1950, and who corroborated the Veteran's assertion that he was never in a car accident during that period of time. Finally, the Veteran submitted private treatment records from January 1976 and March 1979. The January 1976 hospital records indicate that the Veteran was treated for pain in the upper portion in the right upper quadrant of the abdomen with episodes of nausea and vomiting. Under the "Past History" section of the report, it was noted that the Veteran had numerous injuries secondary to trauma, mostly to his ribs and abdomen. It was also noted that the Veteran had a back injury during the Korean War in the early 50's. The March 1979 records show treatment for "fullness in the chest," chest pain and upper abdominal distress. The records do not specifically support the Veteran's claim of service connection, and it appears that the 1979 treatment was related to peptic esophagitis. Finding the August 2010 VA examination unclear, the Board remanded the case in December 2012, primarily for a re-examination of the Veteran to determine what, if any, lung disorder(s) existed, and whether any such disorders were related to service. The examination was held in February 2013. The examiner extensively reviewed the claims file and noted a diagnosis of posttraumatic scarring of the right lower lobe of the lung. The examiner acknowledged the Veteran's report that he was a passenger on the back of a truck that ran off the road and overturned; he lost consciousness. The Veteran reported that he was hospitalized [in a tent hospital] in Korea and was treated for fractured ribs that were taped. The Veteran reports that he was put on light duty for 10 months. The Veteran currently had chronic dyspnea and diffuse chest pain. Physical examination of the Veteran revealed that he was well-developed, obese and elderly; and, he was in mild respiratory distress. The chest was of normal shape with no deformities. The lungs were clear to auscultation and percussion. There were no adventitious sounds. A February 2013 chest x-ray taken in conjunction with the examination revealed a negative cardiac silhouette, clear lungs, and extensive metastatic disease to the bony thorax. No pathologic fractures were identified. It was noted that the Veteran had metastatic prostate cancer. The February 2013 chest x-ray was compared to a chest x-ray taken in February 2004. The report notes that the Veteran was being evaluated for COPD changes, and that per the Veteran's self-reported history, he had a past history of pneumothorax with rib fracture on the right. The x-ray study revealed an unremarkable cardiac silhouette. The mid and upper lung fields were clear. The Veteran had findings of COPD. There was a question of bibasilar scarring, slightly more prominent of the left base. An old healed rib fracture was noted on the right. The bony thorax was unremarkable. No acute process of the chest was identified. The VA examination report also contained the results of July 2006 and April 2007 VA computerized tomography (CT) scans of the thorax. The July 2006 report refers to a prior scan from May 2006 which revealed a 16 x 19 mm enhancing irregular pleural based mass along the posterior right lateral right lower lobe adjacent to the major fissure. 1 cm lymph node in the inferior right hilum; probable primary lung tumor. The April 2007 scan was compared to a previous scan taken in July 2006. The findings in April 2007 were as follows: the heart size was stable; no pleural or pericardial effusion was identified; small medistinal lymph nodes seen which were not pathologically enlarged by CT criteria. With regard to lung windows, there had been interval decrease in the size of the opacity in the periphery of the right lower lobe overlying a healed rib fracture consistent with focal area of scarring. No pulmonary masses or areas of consolidation were seen. A few tiny subpleural nodules were seen which were stable and consistent with benign subpleural lymph nodes. Healed bilateral rib fractures were seen in the bone windows. The impression was slight interval decrease in the size of the peripheral opacity seen in the right lower lobe overlying a healed rib fracture consistent with retraction of benign scarring. The examiner in February 2013 indicated that pulmonary function testing had been completed in October 2006, but that the PFT results at that time did not accurately reflect the Veteran's current pulmonary function. According to the examiner, the 2006 PFT results showed no evidence of obstructive or restrictive lung disease; and, the Veteran's lung scarring had been shown to improve with serial CT scans of the chest. The examiner also noted that the Veteran was unable to perform PFTs for a third exam; the results were unreliable and could not be interpreted. The PFT report suggested that the likely explanation of impaired vital capacity was obesity. The examiner summarized his findings as follows: 1) Old fractures bilateral ribs 2) Post inflammatory scarring R lower lung 3) Obesity, recent BMI 36; explains reduced vital capacity on PFts 2006 4) Metastatic Prostate cancer involving rib cage With regard to all current lung disabilities, if any, and the etiology thereof, the examiner specifically indicated that he was not able to identify any intrinsic lung disease based on the limited available medical data. The chest x-ray was negative for any lung pathology and Veteran was unable to perform pulmonary function tests. His last PFTs in 2006 showed no evidence of intrinsic lung disease, and his reduced vital capacity in 2006 is best attributed to obesity at BMI 36. Additionally, the examiner added that a review of the Veteran's private medical records did not provide any relevant diagnostic data regarding any lung pathology. The examiner acknowledged the Veteran's current metastatic prostate disease which diffusely involves his rib cage. He complained of diffuse chest pain, which will affect breathing mechanics and aggravate dyspnea. With regard to any relationship to service, the examiner opined that the Veteran's lung conditions are less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided a detailed summary of the sequence of events numbered 1 through 10 as follows: 1) Multiple medical providers on Jan 12, 1956, in 2004 (see CXR dated 2/17/04) and 2006 all reported that the Veteran had a MVA in 1949 or 1950 which caused fractured ribs and pneumothorax. Pulmonologist in 2006 gave limited but the most details of this injury which included chest tube drainage of R lower lung. Veteran denied today ever having had a chest tube. See details below. Clinical History: CXR 2/17/2004 -"h/o tobacco use in past. Eval for COPD changes. H/O pneumothorax with rib fx on right in past per patient." VAMC records August 2006; pulmonary consult S: no cough, sputum, hemptysis, dyspnea at rest, but has DOE at 200 yds, stable over the last 3-5 yrs. reports a hx of pneumonia while on duty in Korea, and again 3-4 yrs ago (not sure of which lungs). Also hx of 1950 landmine injury to ribs(broken) and kidney) when his truck ran over the mine. He reports requiring a chest tube on the right for drainage related to the trauma. A: Right lower pleural based lung nodule. Given his hx of trauma in that area AND his essentially nonsmoker status AND the lack of PET scan FDG abnormal uptake, this nodule is most c/w an old postinflammatory/traumatic density. 2) Veteran emphatically stated that he sustained chest injuries on Aug 5th 1953. However service treatment record dated August 5th 1953 briefly mentions an auto accident, no description of truck rollover accident. Veteran sustained a back injury and a 5th finger fracture, and was not hospitalized. There was no chest injury or broken ribs as claimed by the Veteran. The Veteran complained of back pain and R 5th digit; Xray showed fracture of R 5th finger. Veteran had no complaints of chest pain or shortness of breath as would be expected from rib fractures or lung contusion. 3) STR March 29, 1954; Veteran complained of "lung is going to stop"; normal chest exam, Rx phenobarb. No abnormality on CXR. 4) STR--Jan 12, 1956; Veteran complained of pain in chest at night, reported that he had lung injury in 1949 with rib fracture and pneumothorax; CXR normal, AP and lateral. 5) STR April 25, 1958; Discharge exam--no lung complaints on questionnaire; normal lung exam. 6) STR May 15, 1958; Veteran was hospitalized for febrile illness; "toxic" with fever to 101F. He was noted on exam to be wheezing, CXR on May 15th and 19th showed slightly increased lung markings in different zones on either Xray. No inflammatory mass or rib fractures noted. 7) 1958 to 2003; no CXR or CT scan data available. Veteran reports he was seen once by a pulmonologist in this time but no records provided. This information may help to clarify nature of his lung disease. In this regard, the Board notes that the Veteran has provided private medical records to VA dated in the 1970s. He did not however provide or authorize the release of other records in response to the Board's November 2010 letter. 7) VAMC--Aug 14, 2003; initial visit; he denied any chest pain; he reported following for past history. he did not report any history of lung trauma or fractured ribs. But there is no documented kidney injury either in military records. PSH/Trauma Hx: H/O injured kidney, hematuria, after accident when in military 8) VAMC 2/17/2004--first CXR available since military discharge; R rib fractures noted. 9) VAMC 7/13/2006--CT chest; first documentation of pleural based lesion 10) VAMC 4/19/2007--CT repeat--Slight interval decrease in size of a peripheral opacity seen in the right lower lobe overlying a healed rib fracture consistent with retraction of benign scarring. According to the examiner, this sequence of events, and the x-ray findings, clearly show that the Veteran was not hospitalized in Aug 1953; and that the Veteran did not sustain a lung injury in 1953 as he claims. The examiner concluded that the Veteran did have a lung injury but without disabling sequelae. The examiner acknowledged that the date of this lung injury is not clearly established and may have occurred pre military duty in 1949 or 1950; however, multiple normal chest x-rays in 1958 suggests that the lung injury occurred after 1958. In the absence of interval chest x-rays, the examiner opined that the Veteran may have had a second lung injury between 1958 and 2003. The examiner specifically pointed to the CT scan showing evidence of bilateral rib fractures consistent with Veteran's history of a roll over truck accident confusing the picture even more. The examiner opined that the statement about car accident of 1949 is likely correct for following reasons: 1) Proximity of the event in 1949 to date of Veteran's statement in 1956; 2) Veteran repeats this history to pulmonologist in 2006 with date of event stated as 1950; 3) Historical info correlates with finding of fractured ribs found on recent Xrays and CT scans. In sum, the evidence clearly establishes that the Veteran suffered an injury to his ribs and right lung at some point on or after 1949. The Veteran maintains that he was never involved in an auto accident in 1949, or at any time prior to service; and, that he suffered injury to his ribs and lung in the auto accident in service. Although his contentions in this regard are inconsistent with other evidence of record, the evidence does not clearly and unmistakably show that the injury occurred prior to service for the reasons stated above. As to whether the Veteran sustained a lung/rib injury during service, the STR's document an automobile accident in August 1953, as the Veteran has alleged; however, the treatment associated with that accident only involved the lumbar spine and a broken finger. The examiner pointed out that the pain associated with fractured ribs is severe such that the Veteran's complaints of such would clearly be noted in the STR's along with the complaints of back pain and pain due to a fractured finger. See Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) ("[T]he Board may use silence in the [service medical records] as contradictory evidence only if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the [service medical records].") citing to Fed.R.Evid. 803 (7) (the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). In this case, the examiner specifically indicated that the lack of reported rib pain and lung pain at the same time as the reported back pain and finger pain in August 1953 suggests that no such injuries to the ribs and lung occurred at that time. The examiner specifically made clear that the pain from a rib fracture in and of itself would lead to some notation in a service treatment record if it stemmed from the same automobile accident that caused the lumbar spine pain and the finger fracture. The examiner is not stating that there was no rib fracture or lung injury in service; he is merely stating that those injuries did not likely occur as a result of the August 1953 accident. In fact, the examiner did opine that the Veteran had some sort of lung problem in service, but that it was acute and transitory. No lung problems, rib fractures, or lung disorders were noted at the time of discharge, and although the Veteran filed a claim of service connection in July 1958, shortly after discharge from service, his claim did not include a claim of service connection for any lung disability. A VA examination conducted in February 1959 indicated that the Veteran's respiratory system was normal. The VA examiner also considered the possibility that the Veteran may have had an additional injury to the lung and ribs sometime after service given that the 1958 x-ray was negative. The examiner is not relying on a lack of evidence to support his opinion; but rather, he explains why the fractured ribs and right pneumothorax are unrelated to the 1953 accident; and, he also explains why the subsequent reports of lung pain and chest discomfort are also not associated with the 1954 accident. Further, because the Veteran's complaints of pain in the chest/lung in service were never attributed to any chronic disability during service, and no chronic lung disability, as indicated at 38 C.F.R. § 3.303(b), 3.307, 3.309(a) was shown at the time of discharge or within the first post-service year, a presumption of service connection for a chronic lung disability is not established. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Although the examiner suggested that the Veteran may have injured his ribs and lung in 1949, as suggested in the STRs, the Board has already established that clear and unmistakable evidence of a pre-existing rib fracture/right pneumothorax is lacking in this case, and the Veteran is therefore entitled to the presumption of soundness at entry. Throughout the years, as established by the medical record, the Veteran has had various disabilities which have had an effect on his breathing. For example, the record shows evidence of old fractured ribs, evidence of esophagitis, COPD, and metastatic prostate cancer affecting the rib bones. All of these disabilities have, at one point or another, affected the Veteran's chest/lung area and may have caused pain and/or pressure in the lung area; however, the preponderance of the evidence is against a claim of service connection for a lung disability. The totality of the evidence, as summarized by the VA physician in February 2013 establishes that the Veteran complained of tightness in his chest, and lung discomfort in service; however, there was no lung disorder noted in service nor was a chronic lung disorder manifested within the first post service year. Moreover, no current disability affecting the lung has been medically linked to any injury, disease or event in service. Although the Veteran is competent to report symptoms of chest tightness and difficulty breathing, he is not competent to diagnose a lung disability, which requires medical expertise. Further the Veteran is similarly not competent to provide a nexus opinion as to whether his complaints of chest tightness and lung discomfort during service in the 1950's are related to any current lung disability, particularly because no chronic lung disability was established in service. Although the Veteran may sincerely believe that service connection is warranted for a lung disability, the competent and probative evidence does not support his claim. The medical opinions of record outweigh the Veteran's statements in this case. The medical opinion in February 2013 is highly probative because it is based on the entire record, including the STRs, an examination of the Veteran, and a medical history supported by medical treatment records. The examiner's opinions are based on logical rationales and sound medical principles. The examiner clearly reviewed the record as evidenced by his lengthy summary noted on the examination report. There is no competent medical evidence of record that contradicts the February 2013 medical examiner's findings. For all the foregoing reasons, the preponderance of the evidence is against the claim and service connection for a lung disorder is not warranted. As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. (CONTINUED ON NEXT PAGE) ORDER The claim of service connection for a lung disorder is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs