Citation Nr: 1341652 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 97-20 428A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for left rib cage scars. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from August 1973 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont. In December 2002, the Board denied the issue and the appellant appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In June 2004, the Court granted a Joint Motion for Remand, and vacated that part of the Board's decision which denied entitlement to service connection for left rib cage scars. In November 2004, the Board remanded the matter for further evidentiary development. In June 2006, the Board denied, inter alia, the issue listed on the title page. The Veteran appealed, and in December 2007, the Court granted a Joint Motion for Remand. The claim was remanded in September 2008 and October 2009 for further evidentiary development. The claim is again before the Board on appeal. FINDING OF FACT There is at least an approximate balance of positive and negative evidence as to whether the Veteran has left rib cage scars that were incurred in service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, left rib cage scars were incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board considered the regulations pertaining to the VA's statutory duty to assist the Veteran with the development of facts pertinent to his claim. Given the favorable action taken herein below, the Board finds that no further assistance in developing the facts pertinent to the Veteran's claim is required at this time. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish entitlement to service connection for a disability, a Veteran must show: "(1) the existence of a present disability; (2) 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 Veteran contends that he sustained scars to his left rib cage in service in 1974. In this regard, he asserted in a September 1992 Report of Accidental Injury, as well as in various statements and his January 2000 hearing testimony, that while on an authorized pass in Valencia, Spain, in February 1974, he was struck by a bottle while trying to break up a fight between fellow service members. He said he sustained a laceration to the head from that blow, and fell to the floor where he landed on glass causing three cuts across his side. The Veteran's service treatment records show that while stationed in Spain in January 1974 he sustained a laceration to the left temporal area. The circumstances surrounding the incident were noted to be vague. He was treated with fluids and sutures at a local hospital. The hospital records are not on file. He was noted to have a hemoglobin level of 11. Four days later he was admitted to a naval medical facility at his duty station aboard the USS America for post concussion observation. No significant symptoms were noted and he was discharged to light duty the following day. He returned to the facility one day later for the removal of sutures and application of seri strips. There is no mention in the service medical records, or in the ship's deck logs, of any left rib cage injury. In June 1975, he presented to a medical facility requesting an appointment with plastic surgery for possible scar removal. His August 1975 separation examination report is devoid of any notation of scars, including to his head or rib cage. In April 1992, the Veteran underwent a VA general examination, but the report is devoid of complaints or an examination related to left rib cage scars. The examiner did point out that the Veteran's report of blood loss at the incident in 1974 requiring fluid replacement and suturing of his laceration was consistent with his service treatment record noting fluid replacement. He also noted that the Veteran's had significant blood loss as was evident by his hemoglobin level of 11. In March 2002, the Veteran was afforded a VA general examination. The purpose of this examination, in part, was to obtain a medical opinion that addressed whether the Veteran's claimed chest scars were consistent with his report of injury in service. In this regard, the examiner indicated that she had reviewed the Veteran's claims folder. The examiner reported that the Veteran had three scars on his left rib cage, one that was nontender and two that were mildly tender. She noted the size and location of these scars. This examination report is the first medical notation of any left rib cage area scars. After providing the Veteran's reported history of injury and examination findings, the examiner diagnosed the Veteran as having left side/rib cage with three scars, two mildly symptomatic and one asymptomatic, as residuals of the in-service trauma in 1974. Due to the absence of any service medical record notation of scars, the March 2002 examiner was asked to review the record. Thereafter, in May 2002, the examiner acknowledged that the Veteran's service medical records were negative for left rib cage area scars, including at separation. However, she pointed out that the separation examination report was also negative for face/scalp scars to the face despite a clear showing of these scars in the service treatment records. She concluded that the fact that such an obvious scar was not documented on the separation examination report leaves a reasonable doubt in favor of the Veteran that the less obvious scars (to the rib cage) were not noted. She also pointed out that the April 1992 VA general examination did not mention a general skin exam in order to evaluate for scars. These is also an opinion from a VA examiner who examined the Veteran in August 2005. This examiner similarly reported that the Veteran had three left rib cage scars, and initially opined that the scars were more likely than not related to the active duty injury when the Veteran fell on glass in 1974. However, this examiner indicated that he did not have the Veteran's claims file to review. He was thereafter provided with the Veteran's claims file to review and, in January 2006, issued an addendum opinion concluding that since the Veteran's service treatment records do not support the existence of the claimed chest wound from the reported incident in 1974, it was less likely that the documented scars were present during service. At the outset, it is evident from the examination reports above that both examiners found the left rib cage scars to be consistent with the Veteran's claimed injury of falling on glass in service in 1974. The issue thus came down to whether there was such an inservice injury, with one examiner essentially finding it likely by noting that the Veteran's face/scalp scar also was not noted at separation thus leaving reasonable doubt in his favor as to the chest scars, and the other examiner finding that it was less likely as not that the chest wound scars were present during service due to the fact that the chest wound was not documented in his service treatment records. Weighed along with the evidence above are the Veteran's own statements of injury. The Board finds that the appellant is competent to state that he sustained chest lacerations in service when he fell on glass. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In regard to his credibility, see Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006), there is no evidence that directly contradicts his report of injury. In this regard, it is important to keep in mind that the purported injury occurred off base and that the circumstances surrounding the injury were noted in the service treatment records to be vague. Also, the hospital treatment records immediately following the injury are not available for review. In short, the Board finds that both the positive and negative evidence is of approximately equal evidentiary weight with respect to the incurrence of left rib cage scars in service. In these circumstances, the reasonable doubt created by this approximate balance of positive and negative evidence must be resolved in favor of the appellant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the claim is granted. ORDER Entitlement to service connection for left rib cage scars is granted. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs