Citation Nr: 1337411 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 95-38 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for body strain of the chest and abdomen. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Becker, Counsel INTRODUCTION The Veteran served on active duty in the Army from February 1964 to April 1967. He thereafter served in the Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) from an August 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, that denied service connection for a body strain of the abdomen, back, and chest. The Veteran testified at a hearing before a Decision Review Officer in November 1995. During the course of appealing it, he testified at a hearing before the undersigned held at the RO in August 2004. In July 2005, the Board denied service connection for body strain, including of the chest, back, and abdomen. The Veteran appealed to the United States Court of Appeals for Veterans Claims. An August 2007 Memorandum Decision of the Court vacated the Board's decision and remanded this matter back to the Board for readjudication. In May 2009, the Board remanded for additional development. An August 2011 rating decision granted service connection for degenerative disc disease of the lumbar spine, claimed as back strain. The benefit sought was granted with respect to the claimed back disability such that it is no longer on appeal. In August 2012 and July 2013, the Board once again remanded for additional development the claim for service connection for chest and abdomen strain. FINDING OF FACT The Veteran currently does not have body strain of the chest or abdomen. CONCLUSION OF LAW The criteria for establishing service connection for body strain of the chest and abdomen have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty of notification regarding a claim for VA benefits. 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159 (2013). VA specifically must notify the claimant and his representative of any information and evidence not of record that is necessary to substantiate the claim, that VA will seek to obtain, and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Notification that an initial rating and an effective date will be assigned if the benefit sought is granted should also be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided prior to the initial decision by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, there is no error in failing to provide prior notice if it was not required at the time. Subsequent VA process following notice instead must be provided. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Neither the Veteran nor his representative has alleged prejudice concerning notice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found. The Veteran and his representative were informed of the criteria necessary to establish service connection, the evidence required, and his and VA's respective duties for obtaining evidence in letters dated in January 2002 and April 2003. That was prior to the initial adjudication by the RO, in the August 2003 rating decision. Repeat information was provided thereafter in letters dated in July 2004 and August 2009. Notification of how an initial rating and effective date would be assigned if service connection was give in an August 2009 letter and a June 2009 letter. There was subsequent VA process from issuance of supplemental statements of the case in August 2011 and August 2013. The Board finds that any defect in notice content or timing is harmless. The Veteran has had a meaningful opportunity to participate in the processing of this matter. Thus, the essential fairness of adjudication has not been impacted. In addition to the duty to notify, VA has a duty to assist claimants with respect to claims for VA benefits. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). VA specifically is required to aid the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A(b-c) (West 2002); 38 C.F.R. § 3.159(c)(1-3) (2013). VA also is required to provide a medical examination or obtain a medical opinion when necessary. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Some VA and private treatment records could not be obtained for various reasons. Yet service medical records, service personnel records, available VA treatment records, and available private treatment records regarding the Veteran have been obtained, whether through VA efforts, him submitting them on his own behalf, or both. The most recent VA treatment records were obtained in compliance with the Board's May 2009 remand. In compliance with the Board's May 2009 and August 2012 remands, a VA medical examination has been conducted. The examiner reviewed the claims file and VA treatment records. To the extent the claims file was not reviewed, there is no prejudice because the Veteran gave a reasonably accurate account of his medical history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97 (2008). He also was interviewed about his current state and then physically assessed. Those actions provide sufficient detail so that the decision herein is fully informed. As such, the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Significantly, neither the Veteran nor his representative has identified any further development necessary for adjudication that has not been completed. The record also does not indicate any further necessary development. Accordingly, the Board finds that no further action is required and that VA's duties to notify and to assist have been satisfied. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227 (2000). Further, the only other action directed by the Board in it May 2009, August 2012, and July 2013 remands, readjudication, was completed the issuance of supplemental statements of the case. Therefore, there has been substantial compliance with the remand instruction and adjudication may proceed. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Service Connection The Veteran contends that he has body strain of the chest and abdomen because of parachute jumps he made during service. Specifically, he contends that he strained his chest and abdomen after jumps and has had problems ever since. The Veteran alternatively contends that he has body strain of the chest and abdomen due to his service-connected knee or lumbar spine disabilities. Service connection means that a disability was incurred during service or that a preexisting disability was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). To establish service connection, there must be a current disability, the in-service incurrence or aggravation of an injury or disease, and a nexus between them. Hickson v. West, 12 Vet. App. 247 (1999); Barr v. Nicholson, 21 Vet. App. 303 (2007). For chronic diseases, service connection also may be established through chronicity or continuity of symptomatology. 38 C.F.R. § 3.303(b)(2013); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection is presumed for various diseases to include chronic diseases if certain requirements are met. 38 U.S.C.A. §§ 1112, 1113, 1116, 1153 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). However, body strain is not a chronic disease. Service connection may also be established for any disease diagnosed after separation from service if it was incurred in service. 38 C.F.R. § 3.303(d) (2013). Secondary service connection means that a nonservice-connected disability is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2013). To establish service connection on a secondary basis, a current nonservice-connected disability must be caused by or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The Board must identify the evidence it finds to be persuasive and unpersuasive and explain why any favorable evidence is unpersuasive. Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Both medical and lay evidence may be discounted in light of inherent characteristics and the relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). When there is an approximate balance of positive and negative evidence regarding any point, reasonable doubt is resolved in favor of the claimant. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claimant prevails when the evidence supports the claim or is in relative equipoise, but does not prevail when the preponderance of the evidence is against the claim. Only the most salient and relevant evidence must be discussed, although all the evidence must be reviewed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Based on the evidence of record, the Board finds that service connection for body strain of the chest and abdomen is not warranted. Service connection can be granted only if there is a current disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). A current disability exists when there is a disability at or contemporary to the time a claim is filed or at any time during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran filed his claim in May 1994. He has not had any diagnosed body strain of the chest or abdomen or any other similar disability at any point contemporary to his claim or since. VA and private treatment records dated during the period under consideration contain numerous complaints from the Veteran of abdominal pain and tenderness, and chest pain, pressure, heaviness, and tingling. There is no indication that he has medical expertise, so he is a lay person. A lay person is competent to relate personal experiences and observations. Layno v. Brown, 6. Vet. App. 465 (1994). The Veteran is competent to report his symptoms because they are within his personal experience. He is credible because there is no significant reason to doubt his assertions. Pond v. West, 12 Vet. App. 341 (1999); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991). However, neither body strain of the chest or abdomen nor any other similar disability has been diagnosed by any competent medical professional to account for his competently and credibly reported symptoms. Diagnostic test results have frequently been normal. Often no diagnosis, or at least no diagnosis relevant to the chest or abdomen, was made. Of the diagnoses that were made, many are not musculoskeletal in nature such as body strain. The diagnoses include a cardiac disability, atypical chest pain, gastroenteritis, irritable bowel syndrome, questionable diverticulosis and diverticuli, and gastritis. None of those diagnoses would be envisioned by a claim for service connection for chest and abdomen strain. The diagnosis of atypical chest pain was made, and it once was noted that the problem sounded musculoskeletal. VA Dr. D.S. diagnosed chronic muscle pain around the abdomen after noting the presence of pain and muscle spasm. Yet pain as a symptom alone, without an underlying diagnosis, do not constitute a disability. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Since May 1994, one relevant VA medical examination has been conducted. That examination, in September 2012, did not result in any diagnosis. Notwithstanding the Veteran's complaints of chest symptoms, his chest was normal upon assessment. His abdomen also was normal upon assessment, with the exception of obesity, despite his complaints of abdominal symptoms. No pathology of the chest or of the abdomen was found. It was remarked that the Veteran wore a back brace and the examiner opined that his disability was in his spine. He was subsequently service-connected for a spine disability. Acknowledgement is given to a letter dated in November 1998 from private Dr. K.B. stating that the Veteran had received treatment since 1989 for abdominal sprain. Dr. K.B. essentially diagnosed him with chronic abdominal sprain during the pertinent period beginning in May 1994. However, the Board finds that diagnosis is not persuasive. Available private treatment records from Dr. K.B. are dated only from January 1997 to May 2009. They contain no mention whatsoever of abdominal sprain, but discuss other musculoskeletal disabilities. That strongly suggests that the Veteran did not have abdominal sprain at least as of January 1997. Buczynski v. Shinseki, 24 Vet. App. 221 (2011). It also strongly suggests that he did not have abdominal sprain prior to 1997. Dr. K.B.'s letter, in addition to being unsupported by treatment records, does not describe the Veteran's disability in any detail much less in adequate detail as is required. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Ardison v. Brown, 6. Vet. App. 405 (1994). Neither are his complaints nor findings made upon assessment set forth. The basis for the diagnosis was not stated. If it was based solely upon statements from the Veteran, mere transcription of a Veteran's self-reported medical history by a medical professional is insufficient. Leshore v. Brown, 8 Vet. App. 406 (1995). That history must be accurate. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Coburn v. Nicholson, 19 Vet. App. 427 (2006). Here, the evidence of record shows that there is no indication that the Veteran's self-reports of abdominal sprain are accurate. The Board finds that VA examination which found that no chest or abdomen sprain was present to be much more persuasive based on recorded findings, or recorded negative findings, by the examiner. A lay person is competent to diagnose a disability only when the lay person is competent to identify it, the lay person is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Flat feet, a dislocated shoulder, certain skin ailments, tinnitus, and varicose veins are examples of disabilities a lay person is competent to identify. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398 (1995). Body sprain or strain of the chest and abdomen, in contrast to those simple disabilities, is not capable of identification by a lay person such as the Veteran. There are numerous chest and abdominal disabilities other than body sprain, strain, or a similar disability. Many of those other disabilities have the same or at least comparable symptoms as body sprain or strain. For instance, the evidence of record shows that chest pain can be musculoskeletal in nature or due to a cardiovascular cause. Abdominal pain can also be attributable to a digestive cause or musculoskeletal in nature. The Veteran has not reported a contemporaneous medical diagnosis during the period from May 1994 to present or described symptoms supporting a later medical diagnosis within that period, other than the letter from Dr. K.B., which the Board finds unpersuasive as it is not documented by any findings or actual treatment history to support that letter. As the preponderance of the evidence is against a finding that there is a current disability, the Board finds that no current disability of abdomen or chest sprain is shown. Accordingly, service connection for body strain of the chest and abdomen must be denied. It thus is not necessary to proceed by considering whether the other criteria for establishing service connection have been met because the Board finds that a current disability is not shown. The Board finds that the preponderance of the evidence is against the claim and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for body strain of the chest and abdomen is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs