Citation Nr: 1317536 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 07-17 320 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a disability manifested by chest pains, to include as secondary to service connected residuals of multiple laceration wounds and post-operative scars of the anterior chest wall. 2. Entitlement to service connection for a disability manifested by shortness of breath, to include as secondary to service connected residuals of multiple laceration wounds and post-operative scars of the anterior chest wall. 3. Entitlement to service connection for a stomach and bowel disability, to include as secondary to service connected residuals of multiple laceration wounds and post-operative scars of the abdominal wall. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran had active service from April 1953 to March 1956. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a decision of July 2006 by the Department of Veterans Affairs (VA) St. Petersburg, Florida Regional Office (RO). He perfected a timely appeal to that decision. In October 2009, the Board remanded the case for evidentiary development. Following the requested development, a supplemental statement of the case (SSOC) was issued in November 2010. In February 2011, the Board again remanded the case for further evidentiary development. Following the requested development, an SSOC was issued in April 2012. In June 2012, the Board once again remanded the case for still further development. An SSOC was issued in May 2013. The Board notes that the Veteran's initial claim was for service connection for a disability manifested by shortness of breath. The medical evidence of record also indicates that the Veteran has complained of and was treated for left sided chest pains. The scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Given the foregoing, the Board has recharacterized the claim as entitlement to service connection for a disability manifested by shortness of breath and chest pains as indicated on the title page. The issues of entitlement to service connection for a disability manifested by shortness of breath, to include as secondary to service connected residuals of multiple laceration wounds and post-operative scars of the anterior chest wall, and entitlement to service connection for a stomach and bowel disability, to include as secondary to service connected residuals of multiple laceration wounds and post-operative scars of the abdominal wall, are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. Finally, in his Informal Hearing Presentation (IHP), dated in May 2013, the Veteran's representative raised a claim of clear and unmistakable error (CUE) in the June 1961 rating decision, in that it failed to rate the injury to Muscle Group XIX and the pleural cavity injury. Those CUE claims have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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 medical evidence of record indicates that the Veteran has a diagnosis of "noncardiac chest pain" which, as likely as not, resulted from the service-connected multiple laceration wounds and post-operative scars of the anterior chest wall. CONCLUSION OF LAW Chest pain (non-cardiac type) is proximately due to the service-connected multiple laceration wounds and post-operative scars of the anterior chest wall. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). As will be discussed in further detail in the following decision, the Board finds that the competent and probative evidence of record supports the grant of service connection for a disability manifested by chest pains, to include as secondary to service connected residuals of multiple laceration wounds and post-operative scars of the anterior chest wall. This award represents a full grant of this particular issue on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Factual background. The record indicates that the Veteran entered active duty in April 1953. The service treatment reports (STRs) indicated that the Veteran was admitted to an army hospital in October 1954 with multiple stab wounds of the chest and abdomen; he underwent surgery and the wounds were debrided and closed. The Veteran had a tear in the small bowel; this was repaired. Multiple abdominal wounds were closed. The left pleural space was entered by extending the left chest wound and bleeding from intercoastal was controlled by suture ligatures. A chest tube was placed in the pleural space through a stab wound and the chest wound was closed. In November 1954, repeat chest x-rays revealed that the right lung was completely re-expanded and both lungs were essentially clear. The wounds were well-healed. The Veteran had no GI or GU complaints and he was discharged to duty. In December 1954, the Veteran was evaluated for complaints of dull pain in the abdomen at the site of the wounds. In September 1955, the Veteran was seen for complaints of pain in the left chest at the site of the previous injury; x-ray study of the chest was negative. A transfer examination in March 1956 was negative for any complaints or findings of chest pain, shortness of breath, or a stomach disorder; in fact, it was noted that there were no complaints of a medical nature at the time of the examination. Clinical evaluation of the lungs and chest and the abdomen was normal. On the occasion of his initial VA examination in April 1961, the Veteran complained of occasional pain across the left side of his chest; he also complained of numbness and tingling of the left chest. It was noted that X-ray study of the chest revealed no evidence of gross pleural or parenchymal disease. A gastrointestinal series (GI) was normal, and a study of the small bowel was also normal. The impression was intercostals neuralgia and altered nerve function, residual to trauma and operative intervention. By a rating action in June 1961, the RO granted service connection for multiple laceration wounds and postoperative scars, rated as 10 percent disabling, effective November 29, 1960; service connection was also granted for multiple laceration wounds and postoperative scars on the abdominal wall, rated as 10 percent disabling, effective November 29, 1960. During a VA compensation examination in June 2006 for evaluation of his scars, the Veteran reported that he recently had a pacemaker implanted. Of record is a statement from Dr. Alex A. Caballero, dated in October 2006, indicating that the Veteran has been under his care from a cardiac perspective; and, when he was last examined in August 2006, he was stable from a cardiac perspective. Dr. Caballero noted that the Veteran had complaints of non-cardiac chest pain with deep inspiration, and if he rolls onto his left side while sleeping the pain will awaken him. Dr. Caballero stated that the Veteran related the chest pain to old stab wounds while serving in combat in the military. Also of record is a medical statement from Dr. Paul S. Austin, dated in October 2006, stating that, after reviewing the Veteran's records, it is within a reasonable degree of medical certainty that his current conditions are related to military service. Dr. Austin noted that the Veteran sustained multiple stab wounds to his abdomen and chest in October 1954 that resulted in bilateral pneumothoraces (collapsed lungs) and laceration to his bowel; he had a segment of his bowel resected as a direct result. Dr. Austin stated that, due to these injuries, he has scar tissue in his lungs and his thoracic cage that results in a pleuritic chest pain and shortness of breath, likely due to limited mobility of his lungs and chest wall due to adhesions. Dr. Austin stated that, in his opinion, these present complaints are directly tied to the trauma the Veteran sustained in service in 1954. The Veteran was afforded a VA examination in January 2010. The Veteran indicated that he tried to break up a fight in 1954, while in service, when he got slashed with a knife. Received in April 2010 were treatment reports from Lake Health Care Center, dated from April 2008 to May 2009, reflecting treatment for atria fibrillation. These records do not reflect any complaints or treatment for chest pain. Received in November 2010 were VA progress notes dated from December 2006 to April 2009. During a clinical visit in December 2006, the Veteran complained of shortness of breath with exertion which he contributes to injuries sustained in 1954. It was also reported that the Veteran had chronic pain aggravated if he attempts to sleep on the left side where injuries to the chest occurred in the past. No pertinent diagnosis was noted. The Veteran was afforded another VA examination in September 2011. At that time, it was noted that the Veteran had multiple stab wounds to the chest and abdomen in 1954 and he underwent exploratory laparotomy with wound closures. It was also noted that the Veteran was service-connected for scars secondary to the stab wounds and surgical procedures. The examiner observed that the Veteran did not have symptoms of non cardiac chest pain until 2006, when he was found to be bradycardic and a pacemaker was placed. He was evaluated by Drs. Austin and Caballero in 2006 and both indicated that the Veteran complained of noncardiac chest pain which was related to his scar tissue in his lungs and thoracic cage as a result of the multiple stab wounds to the chest and abdomen in 1954. The examiner opined that the Veteran's complaints of left sided chest pain, noncardiac in origin, is at least as likely as not related to his service connected scars he sustained while in the military; the Veteran indicated that he has been experiencing left sided chest pains in the area of the scars which has gotten worse in the last few years. In December 2012, the Veteran's claims folder was referred to a VA examiner for review and opinion regarding the etiology of the Veteran's claimed conditions. Following a review of the claims folder, the examiner stated that the Veteran's symptoms of chest pain, noncardiac in origin, are at least as likely as not a residual of the scar tissue that was formed after sustaining injuries while in the military. III. Legal Analysis. Service connection is warranted for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"--the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362 (2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be established for disability that is proximately due to or the result of a service- connected disease or injury. 38 C.F.R. § 3.310(a) (2006); See Harder v. Brown, 5 Vet. App. 183, 187 (1993). An October 2006 amendment to 38 C.F.R. § 3.310 sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen v. Brown, 7 Vet. App. 439 (1995) (which allowed for secondary service connection on an aggravation basis), it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice, which strongly suggests that the recent change amounts to a substantive change in the regulation. Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which version favors the claimant. 38 C.F.R. § 3.310 (2006). The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition, (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Noncardiac chest pain. After a careful review of the claims folder, the Board finds that the pertinent evidence of record indicates that it is at least as likely as not that the Veteran's noncardiac chest pain is proximately due to the residuals of multiple laceration wounds and postoperative scars of the anterior chest wall. The Veteran asserts that he suffers from chest pain due to the laceration wounds and postoperative scars of the anterior chest wall which he sustained as a result of an attack in service in 1954. The record shows that the Veteran has received clinical attention for complaints of chest pain, and he is service-connected for residuals of multiple laceration wounds and postoperative scars of the anterior chest wall. The remaining question is whether his chest pain is proximately due to or the result of the service-connected laceration wounds and postoperative scars. Significantly, a September 2011 VA examiner stated that the Veteran's chest pains were at least as likely as not related to the scars he sustained while in service. Likewise, a December 2012 VA addendum opinion found that the Veteran's complaints of chest pain, noncardiac in origin, are at least as likely as not a residual of the scar tissue that was formed after he sustained injuries while in the military. A similar opinion was provided by the Veteran's private physician, Dr. Paul S. Austin, in October 2006, who opined that the Veteran's complaints of chest pain are directly related to the trauma he sustained in service. Specifically, Dr. Austin noted that the Veteran sustained multiple stab wounds to his chest on October 16, 1954 that resulted in bilateral pneumothoraces (collapsed lungs). Dr. Austin explained that, due to those injuries, the Veteran had scar tissue in his lungs and thoracic cage that results in a pleuritic chest pain, which is likely due to limited mobility in the lungs and chest wall due to adhesions. The above medical opinions are uncontroverted. Therefore, in weighing the Veteran's statements, treatment records, reports of VA examinations, and the medical opinions cited above, the Board concludes that the evidence supports service connection for non-cardiac chest pain. It is important to note that this is not a pain alone type of case. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (2001). Here we have disability, chest pain, that is proximately due to service-connected disease, multiple laceration wounds and post-operative scars of the anterior chest wall. Accordingly, service connection for chest pain (non-cardiac origin) is granted. 38 U.S.C.A. § 5107 (b). ORDER Service connection for chest pain (non-cardiac type) is granted subject to the laws and regulations governing pyramiding. REMAND While the Board again regrets the further delay that a remand of this case will cause, the Board finds that once again the issue on appeal must be remanded for further development. As stated in the previous remands by the Board in October 2009 and June 2012, the Veteran claimed that he has a disability manifested by shortness of breath, and a stomach and bowel disability that are secondary to the Veteran's service connected residuals of multiple laceration wounds and post-operative scars of the anterior chest wall and abdomen. In October 2009 and June 2012, based on the contradictory nexus opinions, lack of diagnoses, and the Veteran's statements, the Board found that further development was necessary and instructed the AMC to schedule the Veteran for VA examinations to determine whether the current respiratory or gastrointestinal disorders were secondary to the service connected laceration wounds and post-operative scars of the anterior chest wall and of the abdominal wall. In addition, private treatment records from Dr. C. K. Cartwright, Dr. P. S. Austin, and other sources identified by the Veteran, were absent from the record. Therefore, they were to be retrieved and incorporated in the claims file. In January 2010, the Veteran underwent VA examinations but the additional private treatment records from Lake Health Care Center, Dr. C. K. Cartwright, and Florida Hospital Waterman were not considered by the VA examiner prior to the examination and opinion. Therefore, in February 2011 and again in June 2012, the Board remanded the claims for additional development. Namely, the Board requested the VA examiner specifically address the findings and positive nexus opinions from Veteran's private physicians, Drs. P. S. Austin, C. K. Cartwright, and A. A. Caballero stated in letters dated October 2006. In September 2011, a VA examiner provided an addendum to the January 2010 VA examinations. The examiner opined that the Veteran's symptoms of shortness of breath and his gastrointestinal condition were less likely as not the result of military service. The examiner attributed the Veteran's shortness of breath to a history of smoking and age. The examiner also stated that the Veteran had significant symptoms of shortness of breath until 2006 when a pacemaker was inserted. The examiner opined that the Veteran's gastrointestinal problems began in the 1980s and that he has been diagnosed with irritable bowel syndrome. Regarding the positive nexus opinion from the Veteran's private doctors, examiner questioned why Dr. Cartwright, a urologist, evaluated the Veteran for respiratory conditions. As for the positive nexus opinions offered by Dr. Austin and Dr. Caballero, the examiner restated their opinions but did not offer any discussion against their findings. In a December 2012 addendum, a different examiner provided opinions, but did not discuss and of the other evidence of record. The examiner did note that the claims folder was not available to review. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the Board's remand. Stegall v. West, 11 Vet. App. 268 (1998). Since the September 2011 and June 2012 VA addendum did not sufficiently comply with the instruction of the prior remands, the RO/AMC must either obtain an addendum report from the earlier examiner or provide the Veteran another examination. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.) 1. The claims file should be returned to the examiner who conducted the June 2012 VA addendum (or if unavailable, to another appropriate VA reviewer). In an addendum, the examiner should state whether it is at least as likely as not that any a disability manifested by shortness of breath are symptoms of a disability or residuals of the laceration wound. The examiner is also asked whether it is at least as likely as not that any gastrointestinal disability diagnosed is related to his period of service or secondary to his laceration wound residuals. The examiner is asked to specifically address the findings and opinions from Veteran's private physicians, Drs. P. S. Austin, C. K. Cartwright and A. A. Caballero, stated in letters dated October 2006, and discuss the reasons contrary to their opinions in the new addendum. The entire claims file and a complete copy of this REMAND must be made available to and reviewed by the examiner in conjunction with the examination and this fact should be acknowledged in the report. If the examiner who conducted the June 2012 VA addendum is not available, the Veteran should be afforded an appropriate VA examination(s) for his claimed disorders. The claims folder must be made available and reviewed by the examiner. All indicated studies and/or tests should be performed. 2. Upon completion of the addendum, review the examiners' report to ensure substantial compliance with the Board's directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Take any necessary corrective action. 38 C.F.R. § 4.2 . 3. Following the completion of the foregoing, and after undertaking any other development it deems necessary, the AMC should readjudicate the Veteran's claims, considering all applicable laws and regulations. The AMC should provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B , 7112 (West Supp. 2011). ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs