Citation Nr: 1334049 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 11-305 94 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for separated 3rd and 4th ribs. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from June 2009 to March 2010. This matter is before the Board of Veterans' Appeals (Board) on appeal a rating decision in March 2011 of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2012, the Veteran requested a postponement of a hearing. The Veteran then did not appear for rescheduled hearings in August 2012 and November 2012. . In the absence of good cause for failing to appear, the request for a hearing is deemed withdrawn. FINDING OF FACT Separated 3rd and 4th ribs are not currently shown. CONCLUSION OF LAW The criteria for service connection for separated 3rd and 4th ribs have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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 VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter in February 2011. The VCAA notice included the type of evidence needed to substantiate a claim of service connection, namely, evidence of current disability; evidence of an injury or disease in service or event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service. The Veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies and that he could submit other records not in the custody of a Federal agency, such as private medical records, or with his authorization VA would obtain any non-Federal records on his behalf. The VCAA notice included the general provisions for the effective date of a claim and for the degree of disability assignable. As for the content and for the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim); and of Pelegrini v. Principi, 18 Vet. App. 112 (2004). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service records, VA records, and private medical records. Under VA's duty to assist, a VA examination or VA medical opinion is required when there is competent evidence of a disability or persistent or recurrent symptoms of a disability that may be possibly associated with an established in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). While there is evidence of an established in-service event, namely, a back injury, there is no competent or credible evidence of a current disability or persistent or recurrent symptoms of the claimed disability. For this reason, a VA examination or VA medical opinion is not required under the duty to assist. As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Generally, to establish entitlement to VA disability compensation, that is, service connection, a Veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1110 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). 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). Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) ("Fact-finding in veterans cases is to be done by the Board")). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Evidence The service treatment records show that the Veteran was injured in August 2009 when he fell from a top bunk injuring his back. Except for back pain, there were no other complaints. The assessment was acute and chronic low back pain. In November 2009, the Veteran complained of recurrent back pain. In December 2009, the Veteran stated that his mid back pain began after he fell from his top bunk. The pertinent finding was mid thoracic strain. There is no reference to separated 3rd or 4th ribs. After service, private medical records in April 2010 show that the Veteran complained of pain in the thoracic spine between and underneath the shoulder blades. The impression was thoracic pain and no comorbidity. In April 2010 on VA general examination, the Veteran also complained of pain in the thoracic spine. There was no finding of separated 3rd and 4th ribs. Private and VA records from April to November 2010 show no complaint or finding of separated e 3rd and 4th ribs. Service connection has been granted for thoracic spine strain with convexity of the lower thoracic spine. Analysis The service treatment records contain no complaint, finding, history, treatment, or diagnosis of separated 3rd and 4th ribs. On the basis of the service treatment records alone, separated 3rd and 4th ribs was not affirmatively shown to have been present in service, and service connection under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) is not warranted. Also separated ribs is not a chronic disease listed in 38 C.F.R. § 3.309, and chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply and service connection under 38 U.S.C.A. § 1110 as implemented by 38 C.F.R. § 3.303(b) (chronicity and continuity of symptomatology) is not warranted. See Walker v. Shinseki, 708 F.3d (Fed. Cir. 2013) (The continuity of symptomatology avenue to service connection under the regulation creating a presumption of service connection for ceratin chronic diseases manifesting during service and then again at any later date, 38 C.F.R. § 3.303(b), is available only for chronic diseases enumerated in the only regulation listing named chronic diseases, 38 C.F.R. § 3.309(a)). As for service connection based on an initial diagnosis after service, there is no competent evidence by history, clinical finding, or X-ray of separated 3rd and 4th ribs and service connection under 38 C.F.R. § 3.303(d) is not warranted. To the extent the Veteran asserts that he has separated 3rd and 4th ribs with extreme pain, the Veteran as a lay person is competent to identify a simple medical condition. Jandreau, at 1377. A simple medical condition is one capable of lay observation. 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). Whether there is separated 3rd and 4th ribs cannot be competently determined by the Veteran as a lay person based on mere personal observation, as the diagnosis falls outside the realm of common knowledge of a lay person, that is, not capable of lay observation, without specialized education, training, or experience. 38 C.F.R. § 3.159; Jandreau, at 1377. Also separated 3rd and 4th ribs is not the type of condition under case law that has been found to be capable of lay observation. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfeet are capable of lay observation); see McCartt v. West, 12 Vet. App. 164, 167 (1999) (a skin condition is capable of lay observation; see Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus is capable of lay observation); see Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); and see Jandreau, at 1377, n. 4 (a lay witness is capable of diagnosing a simple medical condition, for example a broken leg, but not, for example, a form of cancer). Applying the guidance of current case law, separated 3rd and 4th ribs chronic is more analogous to an internal disease process, rather than either flatfeet, a skin condition, tinnitus, varicose veins, a dislocated shoulder, or a broken leg. For this reason, separated ribs are not the type of condition under case law that has been found to be capable of lay observation. As the claimed disability is not capable of lay observation under Jandreau and by case law, the claimed disability is not a simple medical condition, capable of lay observation. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to diagnose separated ribs. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (the Board may find that lay evidence to diagnose a disability is not competent evidence). For these reasons, the Veteran's statements are not competent evidence on the question of the presence or diagnosis of separated ribs in service, since service, or currently, and the Veteran's statements are excluded, that is, not to be considered as evidence favorable to the claim. While the Veteran as lay person is competent to report a contemporaneous medical diagnosis or symptoms that later support a diagnosis by a medical professional, the Veteran has not submitted evidence of a medical diagnosis of separated ribs or evidence of a diagnosis of the claimed disability by a medical professional based on symptoms described by the Veteran. To the extent the Veteran describes extreme pain, pain alone is not a disability for the purpose of VA disability compensation. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (pain alone without a diagnosed or identifiable underlying disability does not in and of itself constitute a disability for which service connection may be granted). It is the Veteran's general evidentiary burden to establish all elements of the claim, including evidence of a current disability. 38 U.S.C.A. § 5107(a); Fagan v. Shinseki, 573 F.3d. 1282, 1286 (Fed. Cir. 2009). In a service connection claim, the threshold question is whether or not the Veteran actually has the disability for which service connection is sought. In the absence of proof of present disability, there can be no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). And there is no evidence of the claimed disability at the time the Veteran filed his claim. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007). In the absence of competent evidence of separated ribs, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for separated 3rd and 4th ribs is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs