Citation Nr: 1547952 Decision Date: 11/13/15 Archive Date: 11/25/15 DOCKET NO. 09-23 053 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for residuals of fractured ribs. 2. Entitlement to service connection for a low back disorder. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for an abdominal aortic aneurysm. REPRESENTATION Veteran is represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Banister, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1967 to August 1967. These matters come before the Board of Veterans' Appeals (Board) on appeals from December 2008 and February 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In an August 2013 remand, the Board found that the issues of entitlement to service connection for chronic obstructive pulmonary disease and emphysema were raised by the record in a July 2013 statement and referred them to the RO for appropriate action. To date, the record does not show that the RO has undertaken any development or adjudication of these claims. As such, the Board is again referring them to the RO for appropriate action. REMAND The Veteran's service treatment records are not available. In August 2009, the RO issued a formal finding of unavailability of the Veteran's service treatment records in which it detailed the efforts made to locate such records and determined that further attempts to obtain them would be futile. Service personnel records indicate that the Veteran was hospitalized during basic training at Amarillo Air Force Base on more than one occasion between June 1967 and August 1967 for a total of approximately one month. The record does not show that the RO specifically requested the Veteran's hospital records from the Amarillo Air Force Base hospital. As clinical records are sometimes stored separately from service treatment records, the Board finds that a remand is necessary in order to make a separate request for the Veteran's records of treatment at the Amarillo Air Force Base hospital between June 1967 and August 1967. See 38 C.F.R. § 3.159(c)(2) (2015); see also M21-1MR Part III, Subpart iii, 2.A.2.c. With respect to the Veteran's service connection claim for residuals of fractured ribs, the Veteran asserts that he sustained fractured ribs five days prior to enlistment, which were permanently aggravated by service. A preexisting disease or injury will be considered to have been aggravated by military service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2014); 38 C.F.R. § 3.306(a) (2015). Generally, a veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304(b) (2015). When a preexisting condition is not noted on a veteran's entrance examination, the burden is on VA to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). As the Veteran's service treatment records are not available, the Veteran is presumed to have been in sound condition at enlistment unless clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). A May 1967 private treatment record shows that the Veteran was struck with a blunt instrument in the left lower rib cage five days before enlistment. X-rays revealed a fracture to his eighth, and possibly seventh, ribs on the left side. A November 2008 VA examiner provided a diagnosis of mild deformity of the left ribcage, secondary to rib fractures. A November 2013 VA examiner indicated that the Veteran's rib deformities were asymptomatic and that there was no aggravation during service. In April 2014, the Board remanded the Veteran's service connection claim for residuals of fractured ribs, in part, because "the November 2013 VA examiner did not state with the requisite amount of certainty (clear and unmistakable evidence) that the fractured ribs were not aggravated by service." In November 2014, a VA examiner provided the following opinion: It is my opinion that [the] Veteran's residuals of fractured ribs, diagnosed as mild deformity of the fifth and six[th] ribs, (a disability which preexisted service) is less likely as not aggravated (i.e., permanently worsened beyond its natural progression) during his active service. There is no objective medical evidence of worsening or aggravation of a preexisting condition in the available Veteran's service medical records. There are no chest wall injuries or its related treatment records in active service[e]. Because the November 2014 VA examiner did not state with requisite amount of certainty (clear and unmistakable evidence) that the Veteran's fractured ribs were not aggravated by service but rather stated "less likely as not" (reasonable doubt), the Board finds that a remand is necessary in order to obtain another medical opinion which complies with the April 2014 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the Veteran asserts that a current low back disorder was incurred in or aggravated by service when his drill instructor stepped on his back during basic training. Service personnel records indicate that the Veteran complained of low back pain on multiple occasions during basic training, but doctors never found anything wrong. In July 1967, the Veteran produced a July 1966 private treatment record to his motivation flight superior, which read: "lumbar spine: mild degenerative arthritic changes are noted about the anterior aspect of the vertebral body of L-4. There is no other bone or joint lesion." The Veteran's motivation flight superior had the record interpreted by a medical personnel, who indicated that "this meant [that the Veteran] had . . . an old injury there[,] but it shouldn't be enough to keep this airman from training." During a February 2010 VA examination, the Veteran reported first experiencing low back pain in 1962 after he sprained his back lifting a mail bag. He stated that he again experienced low back pain during service when his drill instructor stepped on his lower back. The Veteran also reported injuring his lower back in a car accident in 1992. A December 2009 X-ray revealed significant degenerative changes throughout the lumbar spine with marginal osteophyte changes and narrowing of the disc spaces, dextroconvex scoliosis of the lower thoracic and upper lumbar spine, levoconvex scoliosis of the mid to lower lumbar spine, and osteoporosis. The examiner provided the following etiological opinion: With the minimal information available in the personnel record as well as his previous and subsequent back injuries, I cannot state that his current back problems are related to service without resorting to mere speculation. In December 2012 and November 2013, a VA examiner opined that the Veteran's low back disorder was "less than likely as not caused by or a result of [service]" because degenerative conditions of the joint or disc are the result of natural progression with advanced age, which was likely accelerated by the Veteran's 50 years of tobacco usage. After the Veteran's service connection claim for a low back disorder was remanded in April 2014 for a new medical opinion, a November 2014 VA examiner opined as follows: It is my opinion that [the] Veteran's lumbar spine osteoarthritis and degenerative disc disease [are] less likely as not related [to] or aggravated [by] his active military service (including complaints of back pain). Historically, [the] Veteran's low back pain onset was in 1962, when he sprained his back in high school while lifting a mail bag. [The] Veteran's lumbar spine X-rays dated [July 1966] (Popular clinic, Department of Roentgenology, Memphis, Tennessee) revealed mild degenerative arthritic changes are noted about the anterior vertebral aspect of the body of L-4. There is no other bone or joint lesion. As per [a] record dated [June 1991], [the] Veteran went on sick call 16 times for a variety of reasons including pain in his back, leg, knee, head, and teeth. He was hospitalized on [two] occasions for back pain, which was diagnosed as an old sprain. He was returned to duty after each hospitalization. He was seen in Medical Orthopedic and Mental Hygiene Clinics numerous times. The orthopedist's assessment was that he was using his back complaints in an effort to gain an excuse from basic training or gain a discharge from the service. His opinion was that the applicant was a malingerer. But there is no objective medical evidence of worsening or aggravation of [the] above preexist[ing] back condition in the available Veteran's service medical records. There are no back injuries in active service. Like the opinion pertaining to the Veteran's preexisting rib condition, the November 2014 VA examiner did not state with requisite amount of certainty (clear and unmistakable evidence) that the Veteran's preexisting low back disorder was not aggravated by service but rather stated "less likely as not" (reasonable doubt). Thus, the Board finds that a remand is necessary in order to obtain another medical opinion. Additionally, in opining that the Veteran's preexisting rib and low back disorders were not aggravated by service, the November 2014 VA examiner relied solely on the lack of evidence of worsening during service. However, because the burden is on VA to show clear and unmistakable evidence that the disabilities were not aggravated by service, the examiner may not rely solely on the lack of affirmative evidence of aggravation during service, particularly in light of the fact that the Veteran's service treatment records are not available. See Wagner, 370 F.3d at 1096. On remand, the examiner must discuss the expected natural progression of the Veteran's preexisting rib and low back disorders and comment on whether the Veteran's current rib and low back disorders are consistent with the expected natural progression of the preexisting conditions. Accordingly, the case is remanded for the following action: 1. The RO must request the Veteran's records of treatment at the Amarillo Air Force Base hospital, to include both inpatient and outpatient treatment records. All attempts to secure this evidence must be documented in the evidence of record by the RO. If, after making reasonable efforts to obtain the named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Thereafter, the evidence of record, including any clinical records obtained as a result of this remand, must be made available to the November 2014 VA examiner in order to obtain a supplemental opinion. If the November 2014 VA examiner is not available, the evidence of record must be provided to another appropriate examiner. The examiner must review all pertinent records associated with the evidence of record, and the examiner must specify in the examination report that these records have been reviewed. After reviewing the evidence of record, the examiner must provide opinions as to: a.) Whether the Veteran's preexisting fractured ribs clearly and unmistakably were not aggravated (i.e., permanently worsened beyond its natural progression) by service, to specifically include any in-service exercise. In doing so, the examiner may not rely solely on the absence of affirmative evidence of worsening during service, as the Veteran's service treatment records are not available. The examiner must discuss the expected natural progression of the Veteran's May 1967 rib fractures and comment on whether the current deformity of the left ribcage is consistent with the natural progression of the Veteran's preexisting rib fractures. The examiner must state the specific evidence upon which this determination was based. b.) Whether the Veteran's mild degenerative arthritic changes noted in July 1966 clearly and unmistakably were not aggravated (i.e., permanently worsened beyond their natural progression) by service, to specifically include any in-service exercise and/or the Veteran's assertion that his drill instructor stepped on his back. In doing so, the examiner may not rely solely on the absence of affirmative evidence of worsening during service, as the Veteran's service treatment records are not available. The examiner must discuss the expected natural progression of the Veteran's mild degenerative arthritic changes noted in July 1966 and provide an opinion as to whether a current low back disorder is consistent with the expected natural progression of the Veteran's preexisting degenerative arthritic changes. The examiner must also consider and discuss the Veteran's report of increased back pain following a 1992 motor vehicle accident. The examiner must state the specific evidence upon which this determination was based. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide any of the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the above-captioned claims must be re-adjudicated. If any claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).