Citation Nr: 1335594 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-37 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a disability of the right rib cage. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), this appeal has been advanced on the Board's docket. The Veteran served on active duty from April 1952 to March 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision from the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied service connection for a disability of the left rib. The Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge in November 2010. A transcript of the proceeding is of record. The Board remanded the Veteran's current claim for additional development in December 2010. As noted in the December 2010 remand, the issue has been recharacterized to comport with the Veteran's testimony regarding the disability for which he is seeking service connection. In a September 2011 decision the Board denied the Veteran's claim. This decision was appealed to the Court of Appeals for Veterans Claims (Court). In a memorandum decision dated in April 2013, the Court vacated the Board's decision and remanded the matter to the Board for further proceedings consistent with the Court's decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for a disability of the right rib cage. He testified that, in 1953, he was training in the field and fell on a rock and was bandaged up in the hospital where he stayed for 3 weeks. His right side has been hurting ever since. The Veteran's March 1954 separation examination indicates that clinical evaluation revealed that his lungs and chest, heart, abdomen, upper extremities, and spine were normal, and that he had no defects or diagnoses. A November 2008 VA treatment record notes that the Veteran has a significant past smoking history of 50 years and reported that he suffers chronic pain in his side related to a soft tissue injury he sustained in 1953. A March 2009 VA treatment record notes that the Veteran reported pain in his side since 1953, and was given an assessment of chronic intermittent side pain. In January 2011 a VA examiner noted that the Veteran reported injuring his right rib in 1953, and has had a mass on it and pain ever since. X-rays showed no acute or old rib fracture on either side. The examiner gave the Veteran a diagnosis of no rib abnormality, and noted that the mass the Veteran had was, in fact, a benign cavernous hemangioma of his liver which the Veteran likely had prior to his service since the endothelial cells that form hemangiomas form during the first year of life. The Veteran indicated that he fell and injured his right side during service and has experienced right side pain since service. The Board accepts these statements to be credible. The Court determined that service connection for cavernous hemangioma of the liver is reasonably encompassed in the Veteran's claim for service connection for an injury to his right rib cage. It also determined that the Board erred in not considering whether the Veteran's cavernous hemangioma was aggravated by service. A VA examination is required in order to properly evaluate that question. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination by a physician who has not previously examined the Veteran. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. After conducting a physical evaluation of the Veteran, the examiner must identify all currently existing right rib cage area/liver disorders. a) For all identified right rib cage disorders, the examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that it is related to the Veteran's service. b) The examiner must state whether the Veteran's cavernous hemangioma of the liver is a congenital defect or a disease, as defined by VAOPGCPREC 82-90 (generally, a congenital abnormality that is subject to improvement or deterioration is considered a disease). c) If the cavernous hemangioma of the liver is a "defect;" i.e. it is not expected to improve or deteriorate, then the examiner must offer an opinion as to whether there is any superimposed disease or injury in connection with the congenital defect; and if so, whether it is at least as likely or not (i.e., there is at least a 50 percent probability) that the identified superimposed disease or injury is related to the Veteran's service, to include the fall reported by the Veteran. d) If the examiner finds that the cavernous hemangioma of the liver is a "disease," then he/she is to offer an opinion as to whether it is at least as likely as not (greater than 50 percent probability) that it was aggravated by the Veteran's service, to include the fall reported by the Veteran. The term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, he/she must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Then, readjudicate the appeal. If the benefit sought remains denied, issue a Supplemental Statement of the Case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).