Citation Nr: 1414933 Decision Date: 04/04/14 Archive Date: 04/11/14 DOCKET NO. 07-13 273A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a left side rib injury. (The issues of entitlement to service connection for a left ankle disability, to include as secondary to knee disabilities; entitlement to service connection for degenerative arthritis of both hips; entitlement to service connection for sleep apnea; and entitlement to an initial compensable rating for allergic rhinitis are addressed in a separate decision.) REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Spouse ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from March 1983 to July 1983, and from November 2004 to January 2006. The Veteran had additional service in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In September 2009, the Veteran testified at a video-conference hearing before P. M. DiLorenzo, a Veterans Law Judge (VLJ). In October 2009 and March 2012 the Board remanded the claim for additional development. In September 2013, the Veteran testified at another video-conference hearing before Michael Martin, another VLJ. Generally, VLJ's who conduct hearings must participate in making the final determination of the claim involved. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2013). By law, appeals can be assigned only to an individual VLJ or to a panel of not less than three VLJ's. See 38 U.S.C.A. § 7102(a). Thus, when a Veteran has had a personal hearing before two separate VLJ's during the appeal, and these hearings covered one or more common issues, a third VLJ is assigned to the panel after the second Board hearing has been held, and the appeal is then ready for appellate review. The Court has interpreted 38 C.F.R. § 20.707 as requiring that a Veteran must be provided the opportunity for a hearing before all three VLJ's involved in a panel decision. Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). Pursuant to the Court's holding in Arneson, a letter was sent to the Veteran in January 2014 notifying him that he had the option of having a third hearing with a VLJ who would be assigned to the panel to decide his appeal. In February 2014 the Veteran indicated that he waived the right to appear at an additional hearing before a third Veterans Law Judge who will be assigned to decide the appeal. Therefore, the Board finds that there is no hearing request pending at this time, and the Board has complied with the requirements set forth in Arneson. 38 C.F.R. § 20.700(a) (2013). FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has a disability manifested by left sided rib pain that is related to his active service. CONCLUSION OF LAW The criteria for service connection for a disability manifested by left sided rib pain have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1117, 1137, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Appropriate notice was provided in May 2006. The duty to assist has also been met and appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA treatment records. VA and private treatment records have been obtained and associated with the claims file. In addition, records regarding an application for Social Security Administration (SSA) benefits have been obtained and associated with the claims file. The appellant was afforded VA medical examinations in May 2010 and June 2012. In October 2009 the Board remanded the issue for additional treatment records to be obtained and associated with the claims file, for SSA records to be obtained and associated with the claims file, and for the Veteran to be afforded a VA medical examination. In March 2012 the Board remanded the issue for additional treatment records to be obtained and associated with the claims file and for the Veteran to be afforded another VA medical examination. Subsequently, additional treatment records were obtained and associated with the claims file, SSA records were obtained and associated with the claims file, and the Veteran was afforded a VA medical examinations in May 2010 and June 2012. In addition, a memorandum dated in July 2010 was associated with the claims file indicating that VA treatment records from the Jackson VA Medical Center were unavailable. Based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's remands. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran seeks entitlement to service connection for a left side rib injury. Initially, the Board notes that Veteran does not have an undiagnosed illness, rather he has contended that he has a residual of an injury to his ribs in service. Additionally, the Veteran does not have a medically unexplained chronic multi-symptom illness as the Veteran's left side rib injury is not contended to be one defined by a cluster of signs or symptoms. In a statement dated in August 2008 a fellow serviceman reported an incident where the Veteran was involved in the explosion of an improvised explosive device (IED). At a hearing in September 2009 the Veteran reported that his left ribs were injured when his chest impacted the steel of his vehicle when they hit an IED hole while in service. He reported that he was treated with Ibuprofen. The Veteran was afforded a VA medical examination in May 2010. The Veteran reported that he has had left-sided rib pain since 2005, after an incident in an Humvee. He reported that while a gunner in a Humvee, the Humvee struck an IED hole and his left side was thrust against the front of the turret. The examiner noted that physical examination revealed pain on palpation of the left side of the chest wall. The examiner stated that he could not comment on the causality of the left-sided chest wall pain without resort to mere speculation. It does not appear to cause any residual impairment, except for some minor pain every two weeks or so. In June 2012 the Veteran was afforded a VA medical examination. The Veteran reported left sided rib pain that had its onset in 2004. The Veteran stated that he was involved in an IED blast in 2005. He was in a Humvee and it went down in a hole. He knocked the left side of his chest against the turret. He developed left sided rib pain which made breathing difficult. He did not seek medical care but took Ibuprofen. Since then, every now and then (once a month), he feels a soreness which lasts about two weeks and then eases away. He rubs analgesic cream, uses icepacks, and takes pain pills for relief. The Veteran's medical history was reviewed and was noted to reveal trauma and pain. Physical examination revealed the chest wall to have intact skin with no rash, lesions, or redness. There was no swelling. There was tenderness on palpation over the left sixth rib beneath the left breast. There was no increase in symptoms with deep breathing or movement of the spine. His lungs were clear to auscultation ant percussion. Rib cage x-rays revealed normal bony structures, normal heart size, no infiltrates, and no pleural effusions or lung masses. The Veteran was diagnosed with left sided rib pain. The Veteran noted that the Veteran has recurrent mild left sided rib pain. It was reported that a rib series in 2010 and chest x-rays in 2009 and 2012 were normal. An electrocardiogram was noted to revealed sinus bradycardia. The claims file was reported to reveal no documentation of the complaint though the examiner indicated that the Veteran gave a history of injury. The examiner rendered the opinion that it is less likely than not related to injury in service. At a hearing in September 2013 the Veteran reported that while driving on "MSR" he injured the left side of his ribs when the Humvee he was riding in slammed into the turf. He indicated that back at headquarters they were just giving Ibuprofen. After reviewing all of the relevant evidence, the Board finds that entitlement to service connection for a left side rib injury is not warranted. The Veteran's service treatment records do not reveal any complaint, diagnosis, or treatment for any rib injury, but the Veteran has competently reported that he injured his ribs in an in service injury and that he has had intermittent rib pain ever since the injury in service. However, post service treatment records do not reveal any residuals of any left side rib injury with the exception of pain reported by the Veteran. In addition, the post service treatment records do not reveal that the Veteran has sought any treatment for residuals of a left side rib injury. After examination, the examiner provided a diagnosis of recurrent, mild, left side rib pain and, after discussion of the Veteran's reported injury in service, rendered the opinion that it is less likely than not related to injury in service. The Board notes that pain alone does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Therefore, as the Veteran's left sided rib injury only manifests mild recurrent pain, there is no disability for which service connection may be granted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In addition, to the extent that the Veteran does have a left sided rib disability manifested by pain, the examiner has rendered the opinion, based upon examination and review of the records, that it is less likely as not related to the Veteran's injury in service. As such, the preponderance of the evidence is against the Veteran's claim and entitlement to service connection for a left sided rib injury is denied. ORDER Service connection for a left side rib injury is denied. ________________________ ________________________ MICHAEL MARTIN P. M. DILORENZO Veterans Law Judge, Veterans Law Judge, Board of Veterans' Appeals Board of Veterans' Appeals ________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs