Citation Nr: 1337431 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 07-23 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for residuals of a punctured lung (other than blunt trauma to the left chest with residuals of healed left rib fractures and left 8th rib deformity). 2. Entitlement to a compensable rating for migraine headaches. 3. Entitlement to a compensable rating for blunt trauma to the left chest with residuals of healed left rib fractures and left 8th rib deformity. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from April 1980 to April 1984. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a November 2006 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Detroit, Michigan, which, in pertinent part, denied service connection for residuals of a punctured lung. A subsequent June 2009 rating decision granted service connection for blunt trauma to the left chest with healed left rib fractures and left 8th rib deformity, assigning a noncompensable rating. In October 2007, the Veteran testified during a Board video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims folder. The Board has previously considered this claim. In December 2008, the Board remanded the claim to the Agency of Original Jurisdiction ("AOJ") to afford the Veteran a VA examination. In an August 2009 decision, the Board denied the appellant's service connection claim. The appellant subsequently appealed the decision to the Unites States Court of Appeals for Veterans Claims ("Court"). Thereafter, while the case was pending before the Court, the VA Office of General Counsel and the appellant's attorney (hereinafter known as "the parties") filed a Joint Motion for remand ("Joint Motion"), requesting that the Court vacate the decision. By an Order dated September 2010, the Court granted the parties' Joint Motion, vacated the decision, and remanded the claim to the Board for compliance with the directives specified by the Court. The claims folder was subsequently returned to the Board for further appellate proceedings. In November 2010, the Board remanded the claim to the AOJ for additional evidentiary proceedings pursuant to the Court's Order. Specifically, the Veteran was afforded another VA examination for his service connection claim. (There has been substantial compliance with the Board's directives, as will be discussed.) The Board requested that the RO issue a Statement of the Case ("SOC") for three additional issues that had been addressed by means of a June 2009 rating decision, and for which the Veteran had submitted a timely notice of disagreement, namely, 1) entitlement to an initial compensable rating for migraine headaches, 2) entitlement to an initial compensable rating for blunt trauma, left chest healed left rib fracture with 8th rib deformity, and 3) entitlement to a 10 percent evaluation based on multiple, noncompensable service-connected disabilities under 38 C.F.R. § 3.324. In the remand, the Veteran was specifically advised that the filing of a notice of disagreement places a claim in appellate status, after which, an SOC is required, and that if a VA Form 9 (substantive appeal) is not subsequently received, the Board is not required, and indeed has no authority, to decide the claim. Thereafter, the RO issued a February 2011 SOC, along with a February 2011 letter notifying the Veteran that he had 60 days from the date of the letter to perfect his appeal on the issues by submitted a substantive appeal. However, a review of the claims folder (as well as the electronic record) demonstrates that a substantive appeal on the aforementioned additional issues has not been received by the Board with respect to the June 2009 RO decision. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105 (a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after an SOC is issued]. However, in a February 2013 rating decision, the RO again adjudicated the matters of higher ratings for migraine headaches and blunt trauma to the left chest with residuals of healed left rib fractures and left 8th rib deformity. He submitted a timely NOD in August 2013. A SOC has not yet been issued. This matter must be corrected on remand. In an August 2013 statement, the Veteran also raised the issue of a compensable disability rating under 38 C.F.R. § 3.324. This matter has not been developed for appellate review and is referred for appropriate action. Other matters were raised in December 2011 and January 2012 statements, these issues are being developed by the RO. See June 2012 RO development letter. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The matters of higher ratings for migraine headaches and blunt trauma to the left chest with residuals of healed left rib fractures and left 8th rib deformity are REMANDED to the Appeals Management Center (AMC). FINDING OF FACT The most probative evidence of record fails to establish that the Veteran currently has residuals of a punctured lung other than blunt trauma to the left chest with residuals of healed left rib fractures and left 8th rib deformity (which is already service-connected), and fails to establish that his shortness of breath had its onset in service or is otherwise related to some aspect of active duty service. CONCLUSION OF LAW The Veteran's shortness of breath, claimed as a residual of a punctured lung, was neither incurred in, nor aggravated by, active duty service. 38 U.S.C.A. § 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION II. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). II. Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability and effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In this case, VA satisfied the notification requirements of the VCAA by means of a letter dated in March 2006, which informed the Veteran of the types of evidence needed in order to substantiate his service connection claim, the division of responsibility between himself and VA for obtaining the required evidence, and requested that the Veteran provide any information or evidence in his possession that pertained to such claim. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). This letter further satisfied the requirements of Dingess by informing the Veteran of how VA assigns the disability rating and effective date elements of a claim. The claim was subsequently readjudicated in a June 2007 SOC, which provided the Veteran with the pertinent VA laws, regulations and rating schedule provisions. B.) Duty to Assist The Board concludes that VA's duty to assist has been satisfied. The claims file contains the Veteran's service and post-service treatment records, as well as several VA examination reports. Additionally, the claims file contains the Veteran's personal statements and testimony in support of his claim. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claim that have not already been obtained and associated with the record. Although the Veteran identified two private physicians as providing respiratory treatment, the release forms he provided was incomplete. He was notified of this in an April 2013 letter and asked to provide an updated authorization form as well as provide additional details regarding the dates of treatment he received. Thereafter, the Veteran did not respond. The duty to assist is not a one-way street. If the Veteran wishes to have assistance he must cooperate. Here, VA is unable to obtain any additional records given the lack of a response. The Board notes that the Veteran was first afforded a VA examination for his service connection claim in January 2009. However, in their Joint Motion, the Parties determined that the January 2009 examiner's report was inadequate because the examiner failed to provide reasons and bases for his conclusion that the Veteran's shortness of breath was not the result of a punctured lung in service. Accordingly, as noted above, the Board remanded the Veteran's claim in November 2010 in order to afford him a second VA examination. Review of the December 2010 examination report, however, demonstrates that the same VA examiner again failed to provided any reasons or bases for his conclusion that it was less likely than not that the Veteran's subjective symptoms of shortness of breath were related to the injuries he sustained during his in-service motorcycle accident. However, thereafter, in a February 2011 addendum opinion, the VA examiner provided a well-reasoned explanation for his opinion that the Veteran's shortness of breath symptoms were less likely than not related to his in-service motorcycle accident. Accordingly, the Board finds the VA examination reports, when taken as a whole, to be adequate upon which to base a decision in this case. Furthermore, as noted the Veteran was afforded a Board video conference hearing in October 2007. In this regard, the Board observes that in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge ("VLJ") who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the Board finds that the hearing was held in compliance with the provisions of Bryant. Further, a review of the record also reveals no assertion, by the Veteran or his service organization representative, that VA or the VLJ failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any other prejudice in the conduct of the Board hearing. Moreover, the Veteran's statements , as well as those of his representative, demonstrated actual knowledge of the elements and evidence necessary to substantiate the claim because the statements focused on the evidence and elements necessary to substantiate the claim. As such, the Board finds that the VLJ complied with the duties set forth in Bryant and the claim may be adjudicated based on the current record. Cf. Procopio v. Shinseki, No. 11-1253 (Vet. App. Oct. 16, 2012). In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above, finds that the development of the claim has been consistent with the provisions of the VCAA. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claim. Accordingly, the Board will proceed to a decision on the merits. II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3), lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the 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). The Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), aff'g Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). (emphasis added). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). The Veteran avers that he experiences shortness of breath as a result of a punctured lung he says he sustained during a motorcycle accident in service. He specifically claims that he was involved in a motorcycle accident in service at Camp Pendleton, and as a result of this accident, he suffered injuries consisting of a punctured lung, crushed ribs and internal bleeding. The Board observes that the Veteran's service treatment records reflect treatment for a wound in the left lateral chest. His March 1984 separation examination report indicates that he had a two-inch scar on the left side of his chest/abdomen. Additionally, private treatment records from N. Lauder, M.D., beginning in March 2005, reveal that, in January 2007, the Veteran reported having been previously involved in a motorcycle accident. March 2005 reports show that, although he reported experiencing shortness of breath with minimal exertion, especially when stooping down over previous months, he did not advise Dr. Lauder that he had been injured in an accident in service. He denied chest pain, nocturnal dyspnea and orthopnea. He also denied a history of asthma, COPD and neoplasm, and reported a past history of smoking, obesity and sinus problems. The diagnosis was allergic rhinitis. There is no opinion of record from Dr. Lauder that links the Veteran's shortness of breath with any event or accident during active military service. During his January 2009 VA examination, the Veteran reported having sustained injuries in a motorcycle accident and said that he had been hospitalized for approximately two months. He said that he had experienced shortness of breath ever since the accident. The examiner noted that he had been given an inhaler in the past and that was not presently on any medications. The examiner reviewed the results of an August 2007 pulmonary function test ("PFT") and noted that there was no evidence of obstructive ventilator defect. Thereafter, the examiner administered another PFT, but noted that the findings should be interpreted with caution because of poor quality. When compared with the August 2007 PFT, it was observed that there was a significant decrease in FVC from 3.11L to 2.38L and FEV1 from 2.50 to 1.79 (710ml/18%), and no significant change in DLCO. Following a physical examination and diagnostic tests, the Veteran was diagnosed with blunt trauma to the left chest with rib fracture requiring chest tube placement for pneumothorax during military service, along with residuals of healed left rib fractures and left 8th rib deformity. It was noted that no pulmonary residuals were revealed during this examination. The examiner opined that the Veteran's "subjective" symptoms of shortness of breath with exercise was not likely related to the injuries he sustained in his motorcycle accident in service, to include a punctured lung. As noted above, however, the examiner did not provide an explanation for his conclusion. A subsequent examination with the same VA clinician in December 2010 essentially yielded similar results. The examiner noted that the Veteran had a history of dyspnea on moderate exertion, but no history of several other symptoms, including wheezing, respiratory failure, cor pulmone and asthma. An x-ray of the chest revealed no significant findings. A second PFT revealed no significant change from the previous 2009 test. The clinician noted that the Veteran's diagnosis of blunt trauma to the left chest wall with rib fracture and pneumothorax requiring chest tube placement without pulmonary residuals caused no significant effects on his occupational or activities of daily living. The examiner opined that the Veteran's shortness of breath with exertion was less likely than not due to his service-related motorcycle accident, but again, failed to provide an explanation for his conclusion. In February 2011, the Veteran's claims folder was returned to the examiner who performed the 2009 and 2010 examinations in order to provide reasons and bases in support of his negative nexus opinion. In this regard, he wrote that, after reviewing the complete claims folder, including the Veteran's self-reported history, and performing a physical examination, he found that the Veteran had blunt trauma to the left chest wall with rib fracture and pneumothorax requiring chest tube placement without pulmonary residuals. He further noted that the Veteran had an accident in 1980 (during service), but his symptoms did not begin until 1995. He noted that there was no documented evidence of any chronic lung condition during the 15 years between 1980 and 1995. He further observed on physical examination that the Veteran's respiratory system was found to be normal, except for a well-healed scar, and x-ray findings were also normal. Thus, he opined that the Veteran's symptoms of shortness of breath with exertion is less likely than not due to his service-related motorcycle accident. Based on a review of the complete evidence of record, including the Veteran's personal statements, the Board concludes that the competent and probative evidence is against the Veteran's claim of entitlement to service connection for residuals of a punctured lung (other than blunt trauma to the left chest with residuals of healed left rib fractures and left 8th rib deformity). In this regard, the Board again notes that a competent VA examiner, after reviewing the complete claims folder, including service and post-service VA and private treatment reports, interviewing the Veteran concerning his medical history, and reviewing diagnostic test results, concluded that it was less likely than not that his current shortness of breath was the result of any incident of active duty service, to include his motorcycle accident. Notably, there is no indication from the examiner that he did not find the Veteran's self-reported history of symptoms since service to be anything but credible. Moreover, as discussed above, there is no probative evidence showing that the Veteran was treated for a lung disorder during service or until many years after service. In this regard, the Court has held that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Here, the amount of time that passed following service without any documented complaint or diagnosis of shortness of breath is evidence that weighs against the claim. In addition to the medical evidence, the Board has also considered the Veteran's personal statements and testimony in support of his claim. The Court has repeatedly held that a veteran is competent to describe symptoms of which he or she has first-hand knowledge. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As shortness of breath is something the Veteran, as a layperson, is clearly competent to report, his assertions concerning chronic shortness of breath since service are entitled to some probative weight. However, although the Veteran is competent to report symptoms such as shortness of breath, there is no evidence that he has medical knowledge or training that would permit him to attribute these symptoms to a complex medical condition such as a punctured lung. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As such, although the Board acknowledges the Veteran's sincere belief that sustained a punctured lung during his 1980 motorcycle accident in service and has resultant shortness of breath, his statements in this regard are not deemed competent. Thus, the Board finds that the evidence of record is against a finding that the Veteran's reports of shortness of breath since service are related to any incident of active duty service, to include a motorcycle accident therein. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b) ; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for residuals of a punctured lung (other than blunt trauma to the left chest with residuals of healed left rib fractures and left 8th rib deformity) is denied. REMAND In February 2013, the RO denied increased ratings for migraine headaches and blunt trauma to the left chest with residuals of healed left rib fractures and left 8th rib deformity. In a timely statement received in August 2013, he indicated that he was pursuing the increased rating claims. To date, he has not received an SOC related to these issues, so these claims must be remanded for compliance with Manlincon. See 12 Vet. App. 238. Accordingly, the case is REMANDED for the following action: The Veteran and his representative must be provided a SOC on the issues of higher ratings for migraine headaches and blunt trauma to the left chest with residuals of healed left rib fractures and left 8th rib deformity. If, and only if, the Veteran files a timely substantive appeal should these issues be returned to the Board. The appellant has the right to submit additional evidence and argument on the 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 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). ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs