Citation Nr: 1323852 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 10-40 222 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for right-sided costochondritis. 2. Entitlement to service connection for gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: Jonathan M. Bruce, Esq. ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from June 1981 to November 1983. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a September 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The issue of entitlement to service connection for GERD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. The Veteran did not sustain an injury, disease, or event manifesting in costochondritis during active service 2. Symptoms of costochondritis were not unremitting in service. 3. Symptoms of costochondritis have not been unremitting since active service. 4. The Veteran does not have a current diagnosis of costochondritis, based upon the best evidence. CONCLUSION OF LAW The criteria for service connection for right-sided costochondritis have not been met. 38 U.S.C.A. §§ 101, 1101, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice included provisions for disability ratings and for the effective date of the claim. In a timely May 2009 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, what information and evidence must be submitted by the Veteran, and what information or evidence VA will attempt to obtain. The letter also described how VA determines disability ratings and effective dates. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA treatment records, and the Veteran's statements. The Board acknowledges that, in his October 2009 Notice of Disagreement (NOD), the Veteran stated that he had been treated at the San Juan VA Medical Center, and requested that his records from that facility from 1985 through the present be considered in adjudication of his claim. Although the earlier records from the San Juan VA Medical Center have not been associated with the claims file, the Board finds that the Veteran is not prejudiced in proceeding with appellate review of his costochondritis claim, as current VA treatment records from the same facility do not show a diagnosis or treatment of costochondritis, as discussed in detail below. Thus, VA has not failed in its duty to assist in not requesting the VA treatment records from 1985 through the present, as obtaining those records would not assist in substantiating the Veteran's claim. The Board further acknowledges that the Veteran has not been afforded a VA medical examination for the claim; however, the Board finds that a VA examination is not necessary in order to decide this issue. Two pivotal Court cases exist that address the need for a VA examination. Those are Duenas v. Principi, 18 Vet. App. 512 (2004) and McLendon v. Nicholson, 20 Vet. App. 79 (2006). In McLendon, the Court held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurring symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on a claim. In Duenas, the Court held that a VA examination is necessary when the record: (1) contains competent evidence that the veteran has persistent or recurrent symptoms of the claimed disability, and (2) indicate that those symptoms may be associated with her active military service. In this case, the Veteran's service treatment records are negative for any complaints of or treatment for right-sided costochondritis. Thus, the weight of the evidence demonstrates that the Veteran did not sustain an injury, disease, or event relating to costochondritis in service, and there is no duty to provide a VA medical examination. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that that where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). As explained in this decision, the Board also finds that the weight of the evidence demonstrates no unremitting symptoms of costochondritis in service and no continuity of symptoms of costochondritis since service separation. Because there is no in-service injury or disease to which a competent medical opinion could relate the current disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection for costochondritis. See 38 U.S.C.A. § 5103A(a)(2) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). The Board has considered the decision in Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); however, in the absence of evidence of an in-service disease or injury, referral of this case to obtain an examination and/or an opinion as to the etiology of the Veteran's costochondritis would in essence place the examining physician in the role of a fact finder, would suggest reliance on an inaccurate history of occurrence of an in-service injury or disease, and could only result in a speculative opinion or purported opinion of no probative value. In other words, any medical opinion which purported to provide a nexus between the Veteran's costochondritis and military service would necessarily be based on an inaccurate history regarding what occurred in service, so would be of no probative value. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). The holding in Charles was clearly predicated on the existence of evidence of an in-service injury, disease, or event and a current diagnosis. Referral of this case for an examination or to obtain a medical opinion would be a useless act. The duty to assist by providing a VA examination or opinion is not invoked in this case because there is no reasonable possibility that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Notably, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection for Costochondritis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). For the 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. The condition at issue is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.309(b) (requiring continuity of a condition after service if chronicity is not found in service) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence 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). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The Veteran contends that he has right-sided costochondritis that is related to active service. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that no relevant injury or disease occurred during active service, and that the weight of the evidence demonstrates that symptoms of right-sided costochondritis were not unremitting in service. At the June 1981 service enlistment examination, the Veteran did not report any symptoms of costochondritis. In June 1983, the Veteran complained of left-sided rib pain after direct trauma to the area during a football game. He was diagnosed with and treated for muscle wall pain and a rib contusion. At no time did the Veteran report pain on the right side. Moreover, it appears that the rib contusion resolved prior to separation, as the September 1983 separation examination report is negative for any report of rib pain or costochondritis. In short, there are no complaints, history, findings, diagnoses, or treatment of symptoms of right-sided costochondritis during active service. The Board next finds that the weight of the evidence demonstrates that symptoms of right-sided costochondritis have not been unremitting since service separation in November 1983. Following service separation in November 1983, the evidence of record does not show any complaints, diagnosis, or treatment for costochondritis. The absence of post-service complaints, findings, diagnosis, or treatment of costochondritis is one factor that tends to weigh against a finding of unremitting symptoms of costochondritis after service separation. See Buchanan, 451 F.3d 1336 (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). With regard to the Veteran's contentions that he experienced unremitting symptoms of costochondritis in service and following service, the Board finds that, while the Veteran is competent to report the onset of symptoms of costochondritis, his recent report of unremitting symptoms since service is outweighed by the other, more contemporaneous, lay and medical evidence of record, both in service and after service, and is not credible. See Charles, 16 Vet. App. 370. The Board finds that the Veteran's statements as to unremitting symptoms of costochondritis in service and unremitting symptoms of costochondritis after service are not credible because they are outweighed by other evidence of record that includes the absence of in-service complaints or symptoms of costochondritis; the September 1983 service separation examination during which the examiner did not note any history, findings, or symptoms of costochondritis; the absence of any post-service history, complaints, symptoms, diagnosis, or treatment of costochondritis; a post-service February 1984 VA examination at which the Veteran did not report any history or symptoms of costochondritis; and the Veteran's claims for service connection for multiple disorders in 1983, 2000, and 2002 without mention of costochondritis. Here, the Veteran filed a claim with VA for service connection for multiple disorders in December 1983, April 2000, and May 2002, but did not claim or mention any costochondritis symptoms at that time. This suggests to the Board that there was no pertinent costochondritis symptomatology at that time. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that a veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. In this case, the Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim for costochondritis, when viewed in the context of his action regarding other claims for compensation, may reasonably be interpreted as indicative of the Veteran's belief that he did not sustain an injury or disease manifesting costochondritis in service, or the lack of costochondritis symptomatology at the time he filed the claim, or both. For these reasons, the Board finds that the weight of the lay and medical evidence that is of record outweighs the Veteran's more recent contentions regarding in-service unremitting costochondritis symptoms and post-service costochondritis symptoms. Moreover, the weight of the evidence demonstrates that the Veteran does not have a current diagnosis of costochondritis. There is no post-service documentation of treatment for or diagnosis of costochondritis, and VA treatment records show that the Veteran consistently denied chest pain during cardiovascular examination following service. Accordingly, the greater weight of the probative evidence is against finding that the Veteran has current costochondritis. As a result, the claim must fail. Indeed, in the absence of proof of a present disability there can be no valid claim. Brammer, 3 Vet. App. at 225. The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, where the overall record fails to support a current diagnosis of the claimed disability, as is the case here, that holding would not apply. In conclusion, after a careful review of the entire record, because the weight of the evidence is against a finding of an in-service injury manifesting symptoms of costochondritis, unremitting symptoms of costochondritis during active service, unremitting post-service symptoms of costochondritis, and current diagnosis of costochondritis, the Board finds that the evidence weighs against the Veteran's claim of service connection for right-sided costochondritis. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for right-sided costochondritis is denied. REMAND The Veteran contends that his currently diagnosed GERD is related to active service. As noted above, he wrote in his October 2009 NOD that he received treatment at the San Juan VA Medical Center, and requested that his records from that facility from 1985 through the present be considered in adjudication of his claim. Unlike the claimed costochondritis, because the Veteran has a current diagnosis of GERD, and because the earlier VA treatment records may establish the presence of unremitting symptoms of GERD since service separation, the Board finds that a remand is necessary to obtain those records. Accordingly, the issue of entitlement to service connection for GERD is REMANDED for the following action: 1. Request any and all treatment records from the VA Medical Center in San Juan from 1983 to the present and associate the records with the claims file. A search of archived or retired records should be made. All attempts to procure the records should be documented in the file. If the records cannot be obtained, any negative responses should be associated with the claims file, and the Veteran and his representative should be notified of unsuccessful attempts to obtain the records, in order to allow the Veteran the opportunity to obtain and submit those records for review. 2. When the development requested has been completed, the issue of entitlement to service connection for GERD should again be reviewed by the RO on the basis of the additional evidence. If any benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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. 2012). ______________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs