Citation Nr: 1605200 Decision Date: 02/10/16 Archive Date: 02/18/16 DOCKET NO. 08-38 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for a right hip disability. 2. Entitlement to service connection for chronic abdominal soreness. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from July 2000 to July 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Jurisdiction subsequently transferred to the RO in Reno, Nevada. A hearing was held on October 15, 2014, by means of video conferencing equipment with the appellant in Las Vegas, Nevada, before Kathleen K. Gallagher, a Veterans Law Judge, sitting in Washington, DC, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. In February 2015, the Board remanded the aforementioned issues for additional development. That development has been completed and the appeals have since been returned to the Board for appellate review. In November 2015, the Veteran filed a VA Form 28-1900, Disabled Veterans Application for Vocational Rehabilitation. It does not appear from the record presently before the board that this matter has been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the issue of entitlement to VA vocational rehabilitation benefits, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The issue of entitlement to service connection for a right hip disability is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. In 1997, the Veteran suffered multiple stab wounds to the left chest/abdomen which required exploratory laparotomy with repair of the left hemidiaphragm and insertion of a chest tube; the Veteran was cleared to return to work in February 1997, and there is no indication he suffered from residual symptoms prior to his enlistment in the Army. 2. The Veteran currently experiences chronic abdominal soreness which began during an active duty deployment to Iraq, and which at least as likely as not represents an aggravation during service of his post-surgical residuals of stab wounds to left chest/abdomen. CONCLUSION OF LAW The criteria for service connection for postsurgical residuals of stab wounds to the left chest/abdomen have been met. 38 U.S.C.A. §§ 1110, 1153, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.306 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Where a pre-existing disease or injury is noted on the entrance examination, 38 U.S.C.A. § 1153 provides that "[a] pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." See also 38 C.F.R. § 3.306(a). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups of symptoms of a pre-existing condition, alone, do not constitute sufficient evidence for a non-combat Veteran to show increased disability for the purposes of determinations of service connection based on aggravation unless the underlying condition worsened. Davis v. Principi, 276 F.3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). It is an "onerous" evidentiary standard, requiring that the no aggravation result be "undebatable." Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)) and Vanerson, 12 Vet. App. at 258, 261; id. at 263 (Nebeker, C.J., concurring in part and dissenting in part). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). Due regard will be given the places, types, and circumstances of service and particular consideration will be accorded combat duty and other hardships of service. 38 C.F.R. § 3.306(b)(2). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran asserts that his chronic abdominal soreness is related to his military service. At the December 2006 VA examination, less than six months following separation from active duty, the Veteran reported chronic abdominal soreness localized to the left upper quadrant, which he related to being on guard duty for approximately 12 hours. The VA examiner noted a diagnosis of chronic abdominal soreness and then stated that there was insufficient evidence to warrant diagnosis of an acute or chronic condition. The examiner also wrote that repaired left hemidiaphragm was a potential source of discomfort, although this was speculation and not certain. The claims file includes an December 2007 VA primary care note documenting the Veteran's reports of initially noticing severe pain while serving a second tour in Iraq in approximately 2005-2006 when working in a detention center. The examiner assessed vague abdominal pain and noted his suspicion that this was related to the Veteran's history of hemidiaphragm repair in 1997, status-post stabbing. A CT of the abdomen was ordered to rule out other abnormalities. A February 2008 report notes that testing resulted in an unremarkable CT chest, abdomen, pelvis. The physician had noted in the December 2007 note that adhesions would not be seen on a CT. A January 2011 VA primary care outpatient note states that the Veteran has had left trunk pain for years, and that he first noticed pain while on active duty when doing physical activity, such as side crunches and working in a detainee center while in Iraq where he had to stand for hours at a time without break. Chronic left trunk pain was assessed, with a question as to whether adhesions were causing pain when inflamed or with increased activity. The Veteran submitted a June 2011 private medical record including a diagnosis of chronic pain syndrome and neuropathic costochondritis. The nurse practitioner noted that the Veteran reported that he believed the injury occurred while on active duty in Iraq, and that he presented her with certificates from the Army showing that he was in the top 1% of a fitness test. The nurse practitioner wrote a letter noting that the practice had been treating the Veteran for the past 4 months for chronic left chest wall pain with date of onset in 2005 during an active duty deployment to Iraq. She noted that the Veteran was extremely active at a high level of physical demand and that he reported a progressive worsening of pain over the last several years. She stated that, based on review of medical records, personnel records, and physical examination/treatment, it was her belief that his chronic pain condition is probably directly related to his military service. At the October 2014 Board hearing, the Veteran testified that he experienced abdominal pain in service, but that he always put the mission first, rarely went to sick call, and did not miss duty because he always just pushed on. The Veteran was provided with another VA examination in May 2015, where a diagnosis was given of stab wounds with residuals, Group XXI, affecting the left side. The Veteran reported experiencing chronic left upper quadrant, costal margin pain since 2004, and the examiner noted that the Veteran had a history of stab wound to the upper abdomen in 1997 with injury to the left hemidiaphragm. On physical examination, the examiner documented cardinal signs and symptoms of muscle disability affecting the left side to include consistent loss of power and consistent fatigue-pain. The examiner opined that the disability was less likely as not caused during, caused by, or otherwise related to the Veteran's active military service. As rationale, the examiner stated that the Veteran's claims file included an entrance examination in 2000 that reported multiple stab wounds and a laparotomy performed before service, in 1997, and considering the evidence, one can infer that the Veteran's abdominal symptoms existed prior to service and were not caused during active duty. He further stated that the abdominal disability less likely as not increased in severity during active service, reasoning that aside from the entrance exam reporting multiple stab wounds and a laparotomy, there were no further service treatment records (STRs) or details during service noted in the record. The examiner concluded that without medical evidence during service which could establish chronicity and an increase in symptomatology, one cannot determine if the condition worsened during active duty and a nexus of aggravation was therefore precluded. The Veteran submitted a statement in July 2015 responding to the findings of the May 2015 VA examiner. He stated that following surgery in 1997, he made a full recovery, and although he had resulting scars, did not otherwise experience pain. The Veteran reported not having any kind of abdominal symptoms leading up to his enlistment, and he indicated that he told the VA examiner about a number of specific events which triggered and ultimately exacerbated his abdominal soreness including, but not limited to, the following: abdominal burning/aching in approximately 2004 with physical training (PT) side crunches; excessive running and extreme weightlifting; 2005 rail loading; severe abdominal burning/aching pain during long convoys during his second tour to Iraq (2005 to 2006); 12-hour guard shifts in 2005; and Kuwait wash rack operations in 2006. The Veteran stated that 2006 was one of the most painful timeframes, but he refused to go to sick call because he was a workhorse and one of the toughest men in the regiment. The Veteran's service treatment and personnel records include a July 2000 enlistment examination which notes scars from stab wounds to the abdomen in 1997 with exploratory laparotomy and repair left hemidiaphragm with chest tube. On the entrance report of medical history, the reviewing physician noted the Veteran's report of having no problems since that time, no counseling, no pain, and no new symptoms. Service personnel records include notations that the Veteran ran marathons, "maxed [his] PT test many times," and maintained one of the highest averages on the Army Physical Fitness Test in the troop. A March 2006 post-deployment health assessment documents the Veteran's report of muscle aches. Further, an April 2006 report of medical assessment notes chronic pain in several areas that were fine when the Veteran joined military service. It was documented that the Veteran had not missed duty for longer than three days because, in his words, "I always drive on." It was noted that the Veteran had been seen for stomach cramps and abdomen pain. When considering the evidence of record under the relevant laws and regulations, the Board finds that an award of service connection is in order. The Veteran is competent to provide evidence of his experienced abdominal pain/soreness, and the date of onset of such symptoms, as this requires only personal knowledge as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Additionally, the Board finds no reason to question the credibility of the Veteran's consistent reports of experiencing a full recovery without related symptoms following his 1997 surgery for his stab wounds, first experiencing a recurrence of symptoms and an onset of chronic abdominal soreness and pain following intense exertional activities during military service. These assertions are corroborated by the Veteran's service treatment and personnel records, which include an entrance examination noting a history of the 1997 injury without subsequent problems or pain and post-deployment assessments from 2006 documenting muscle aches and indicating that the Veteran had been seen for stomach cramps and abdominal pain. The weight of the medical evidence of record demonstrates that the Veteran's current chronic abdominal pain and soreness represent residual symptoms of his 1997 abdominal/chest stab wounds. This evidence includes the following: findings of the December 2006 VA examiner that the repaired left hemidiaphragm represented a potential source of discomfort; a notation in a January 2011 VA primary care note that the chronic left trunk pain is questionably due to adhesions causing pain; and findings by the May 2015 VA examiner diagnosing the Veteran with stab wounds with residuals, Group XXI. The Board finds the Veteran's consistent reports of experiencing a complete dissipation of abdominal symptoms following his 1997 surgery with abdominal/chest wall pain, with aching first occurring during service and continuing and progressing to the present, to be credible and persuasive. When considered alongside the April 2006 report of medical assessment indicating that the Veteran had been seen for stomach cramps and abdominal pain during his deployment and reported chronic pain in several areas that were fine when he began military service, the Veteran's competent and credible lay statements bring the weight of the evidence into his favor; supporting a finding that the postsurgical residuals of stab wounds to the left chest/abdomen increased in severity during active military service. In reaching the conclusion that the weight of the evidence demonstrates a worsening of the Veteran's pre-service disorder during service, the Board acknowledges the May 2015 VA examiner's opinion that it could not be determined whether the condition worsened during active duty because of a lack of medical evidence from this time, and therefore, it was less likely as not that the disability increased in severity during active duty. However, as the examiner incorrectly stated that, aside from the entrance examination reporting multiple stab wounds and laparotomy, there were no further STRs addressing abdominal or chest symptomatology, his opinion is found to lack probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (conclusions based on an inaccurate factual premise lack probative value); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning and that it must be clear that the medical expert applied valid medical analysis to the significant facts of a particular case). In conclusion, a preponderance of the evidence is found to demonstrate that the Veteran's pre-service postsurgical residuals of stab wounds to the left chest/abdomen underwent an increase in severity during military service. Clear and unmistakable evidence is required to rebut the presumption of aggravation following such a finding, and the Board finds that there is no evidence of record sufficient to rebut the presumption in this case. Accordingly, service connection for postsurgical residuals of stab wounds to the left chest/abdomen is warranted. See 38 U.S.C.A. §§ 1110, 1153 (West 2014); 38 C.F.R. §§ 3.303, 3.306 (2015). ORDER Service connection for postsurgical residuals of stab wounds to the left chest/abdomen is granted. REMAND Reason for remand: To provide the Veteran with a supplemental VA medical opinion and to associate updated VA treatment records with the file. The Veteran has competently and credibly reported an onset of right hip pain during military service. Although the Veteran's contentions are supported by STRs including a March 2006 post-deployment health assessment where he reported swollen, stiff or painful joints and an April 2006 report of medical assessment documenting his report of suffering from right hip pain without seeking medical care, the May 2015 VA examiner stated that there was no mention of the right hip in the STR's. The May 2015 examination report is therefore found inadequate for adjudicatory purposes. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (conclusions based on an inaccurate factual premise lack probative value); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning and that it must be clear that the medical expert applied valid medical analysis to the significant facts of a particular case). The Board finds credible the Veteran's reports of experiencing right hip pain continuously since military service. However, the medical evidence of record includes various diagnoses rendered during the appeal period, to include right hip sprain, trochanteris pain syndrome, and small labral tear. A supplemental medical opinion is needed to aid the Board in determining the correct diagnosis or diagnoses relating to the Veteran's right hip disability and to provide the Veteran with an adequate VA medical opinion regarding the etiology of such disability/disabilities. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (VA-provided examination or opinion must be adequate). As the Board is remanding this matter for further development, the AOJ should take action to obtain any records of VA treatment since the last responsive production of records in June 2015. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the appeal of the denial of service connection for a right hip disability is REMANDED for the following action: 1. Obtain any and all records of the Veteran's treatment at a VA facility from June 2015 to the present and associate them with the file. All efforts to obtain such records must be fully documented and VA facilities must provide a negative response if no records are found. 2. Thereafter, refer the Veteran's claims file to an appropriate medical professional (hereinafter "reviewer") who has not yet provided an opinion on this matter, preferably an orthopedic specialist, to provide a supplemental VA medical opinion as to the nature and etiology of the Veteran's right hip disability. The reviewer must be given full access to the Veteran's complete VA claims file and the Veteran's electronic records for review. The reviewer must specifically note on the VA examination report whether the Veteran's VA claims file, to include a copy of this remand, and any electronic records, were reviewed in connection with this examination. If, after review of the file, the reviewer determines that another VA examination is necessary, such must be scheduled and the Veteran must be notified. The reviewer must provide opinions on the following: * The reviewer is advised that Board finds credible the Veteran's reports of right hip pain arising during service and continuing to the present, and highlights STRs including a March 2006 post-deployment health assessment where he reported swollen, stiff or painful joints and an April 2006 report of medical assessment documenting his report of suffering from right hip pain without seeking medical care. Service personnel records also corroborate the Veteran's reports of pushing himself to a great extent physically during service: August 2005 developmental counseling form notes he maxed his PT test many times and his example had made a difference in the way his squad trained to keep up with his standards; November 2005 recommendation for award noting the Veteran maintained one of the highest averages on the Army Physical Fitness Test; and a November 2005 developmental counseling form indicating that the Veteran ran 10K marathons during service. All opinions rendered below should proceed from an initial finding that the Veteran began experiencing right hip pain during service, which has continued to the present. a. Provide a diagnosis for any right hip disability which at least as likely as not (50 percent or greater probability) was present at any time from July 2006 to the present. If the disability was more likely than not present for only a specific portion of the appeal period, the reviewer should so state. The reviewer's attention is directed to the following medical evidence: - December 2006 VA examination report diagnosing right hip sprain and including right hip x-ray findings of no fracture or osteoarthritis, but documenting ".6 cm ovoid sclerotic focus... in the femoral head/neck, probably representing a bone island." -May 2015 VA examination report diagnosing "trochanteris pain syndrome." - March 2015 private MRI report with impression of "small labral tear at 2:00," and findings including "no trochanteric or iliopsoas bursitis." b. For any diagnosis identified by the examiner in response to part a, state whether the disability at least as likely as not (50 percent or greater probability) arose during or was caused by any incident of the Veteran's active military service. - The reviewer is asked to address the Veteran's contention that trigger events during service are related to his chronic hip pain and disability (including excessive running in marathons and otherwise, flutter kicks, weightlifting squats up to 475 pounds, and playing combat football without pads, and other military duties). With regard to the etiology of the right hip labral tear found on the March 2015 MRI, the Veteran referenced University of California in San Francisco, Department of Orthopaedic Surgery, Sports Medicine findings that labral tear of the hip are is more frequently encountered in athletes and is especially common in athletes who perform repeated hip flexion, such as runners. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it. The examiner must include in the examination report the rationale for any opinion expressed. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 3. After completing the above, review the requested medical opinion to ensure responsiveness and compliance with the directives of this remand; implement corrective procedures as necessary. 4. After completing the aforementioned, and conducting any additional development deemed necessary, readjudicate the Veteran's claim for service connection for a right hip disability in light of all additional evidence received. If any of the benefits sought on appeal are not granted in full, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or 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 of Veterans' Appeals 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 2014). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs