Citation Nr: 1613638 Decision Date: 04/04/16 Archive Date: 04/13/16 DOCKET NO. 06-17 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a disability manifested by chest pains other than the service-connected muscle group XXI injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from March 1975 to March 1999. This case is before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a February 2005 rating decision of the VA Regional Office (RO) in New York, New York. A November 2012 Travel Board hearing was held before the undersigned Veterans Law Judge. There were several other issues on appeal that have since been decided. By way of relevant history, the RO rating decision on appeal denied petitions to reopen service connection for rib injury, and chest pains. In January 2013 the Board reopened the claims and remanded them. A June 2013 RO rating decision granted service connection for an injury to muscle group XXI (claimed as rib injury). Then an October 2014 rating decision denied a compensable rating for muscle group XXI injury, but incorporated the Veteran's chest pain into service-connected muscle injury. Most recently, by June 2015 Board remand, the claim was returned to the RO to consider still further disability involving chest pain, based on the Veteran's representative's request. No further evidence received, the RO continued denial of the claim and returned it to the Board for appellate disposition. FINDING OF FACT Besides recognized symptomatology of muscle group XXI injury, the Veteran does not have additional disability manifested by chest pain including that which developed from in-service injury. CONCLUSION OF LAW The criteria are not met to establish service connection for disability manifested by chest pains, other than the service-connected muscle group XXI injury. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2014) sets forth VA's duties to notify and assist a claimant with the evidentiary development of a claim for compensation or other benefits. See also 38 C.F.R. §§ 3.102, 3.159 and 3.326 (2015). VCAA notice must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. The Veteran has been provided satisfactory and timely VCAA notice by way of letters dated in November 2004, October 2009 and February 2013. The matter was readjudicated by the AOJ after the letters of October 2009 and February 2013 issued. VA's duty to assist has been fulfilled through obtaining Service Treatment Records (STRs) and post-service VA and other medical records. There is no indication of outstanding private medical evidence to obtain. The Veteran has undergone VA Compensation and Pension examination in this matter. There also has been substantial compliance with prior Board remand directives. The claim was recently remanded for the Veteran to identify any disability involving chest pain other than that already service-connected, including supporting medical records, and no response was received. A Travel Board hearing was held, during which the Veteran presented testimony concerning the chest pain issue. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Neither the Veteran nor the representative has identified any prejudicial error in conjunction with the hearing. Moreover, the issue was thereafter remanded for further development of the evidence and an examination. There is no indication of further development to complete, including in response to prior remand. The Board has a sufficient basis upon which to issue a decision. Under applicable law, service connection is available for current disability resulting from disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also may be granted for disease diagnosed after discharge where incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet.App. 247, 253 (1999). If there was chronic disease in service, reappearance at any later date is service-connected, unless clearly due to an intercurrent cause. If not chronic, there must be continuity of symptomatology to link in-service disability to post-service condition. See 38 C.F.R. § 3.303(b). But see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (continuity of symptomatology principle limited to where involve those diseases already listed as "chronic" under 38 C.F.R. § 3.309(a)). Certain chronic conditions (including cardiovascular disease) may be presumed to have been directly incurred in active service without need for competent evidence proving a causal relationship to service, if manifested to a 10 percent level within one-year of service discharge. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Having reviewed the record the Board must deny the claim. There is no doubt, as the RO itself has already recognized by rating action, that the Veteran's very symptom of chest pain is service-connected as part of injury to muscle group XXI (see again October 2014 RO rating decision). What remains is whether the Veteran has another service-connected disability related to chest pain. That is the issue now considered. This is following earlier statement by the Veteran's representative that "the Veteran probably portends other disability associated other than the grant of service connected cited. It is unknown at this time." The Board recognizes chest pain itself has already been counted once as part of muscle group XXI injury. VA law would not allow a second service-connected disability based on just chest pain. See 38 C.F.R. § 4.14, VA's Rule Against Pyramiding (indicating that the same disability cannot be evaluated twice under separate diagnoses). All the same, if chest pain were symptomatic of a greater medical diagnosis, as separate disability, then that could be found service-connected. During the Board hearing of April 2009, the Veteran testified that the ribs hurt him and that the chest pain is a residual of the rib. BVA hearing transcript, pp. 76, 84. The Veteran indicated that he did not have a heart problem and "don't want you to get the impression I have chest pain from a heart thing." Id. at 85. To address the chest pain, the Veteran was afforded a VA examination of the muscles in April 2013. The examiner noted that the Veteran had injury to muscle group XXI as a residual of a left rib fracture. The Veteran maintains that his rib fracture never healed correctly, and that he continues to have pain in that area. In addition, the examiner noted a positive tenderness to palpation of the left mid chest wall around to the left mid-axillary chest on examination. The examiner referred to November 2006 x-ray studies which revealed an old rib fracture to the left 5th rib. The examiner also noted that more recent x-rays of the right ribs show possible 9th rib fracture related to a new fall in December 2012 and not to the service-connected condition. The examiner did not specifically opine as to whether the Veteran's chest tenderness was related to the rib fracture. In an August 2014 addendum opinion, a VA physician reviewed the evidence of record and opined that the Veteran's chest pains were, as likely as not, part and parcel of the service-connected residuals of his rib injuries. The Veteran provided a positive history of pain or pressure in the chest, with an explanation that he was admitted to an Army hospital in 1997 for chest pain with a possible heart problem, as noted above. The examiner noted that the Veteran continued to complain of chest pain on and off since 1994, with a tender spot in the left chest wall. Evaluations were normal, however, based on an EKG from May 2006 and a negative GXT from February 2001 with an assessment of muscular pain in the left chest. The evidence on the whole weighs against this claim, for lack of another diagnosis involving chest pain. The Board's June 2015 remand directed a letter be sent to the Veteran requesting information on what other disability claimed is manifested by chest pain, accomplished, but to which the Veteran never responded. That of course alone does not determine outcome of this claim, but independent review of the evidence fails to show further disability too. VA examination in April 2013 showed residual chest pain near the site of a healed left fractured rib from service, injury to muscle group XXI (thoracic muscle group, function of respiration) with no more than occasional fatigue-pain. This became the basis for the October 2014 partial grant of service connection. Otherwise, there is no evidence elsewhere of other muscle, orthopedic and/or neurological disability, associated with chest pain. The Veteran's own statements have been considered inasmuch as he is competent to report present symptomatology, pending confirmation. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Likewise, medical history review does not shed further light on the issue, because the Veteran had costochondritis (chest pain) in service and afterwards, but nothing additional diagnosed or suggested. The April 2013 VA examiner included the Veteran's reports of chest tenderness to palpation as a symptom of the service-connected muscle injury and a VA examiner in August 2014 opined, based on the above findings, that the Veteran's chest pain was part and parcel of his in-service rib injury. This is also consistent with the objective evidence of record, including a lack of demonstrable cardiac disability or defect. Moreover, the RO issued a rating decision in October 2014 addressing the issue of an increased rating for the service-connected residuals of injury to muscle group XXI which incorporated the examiner's finding that the Veteran's chest pain was part and parcel of his service-connected rib injury to muscle group XXI. As there is no separate and distinct cardiac or other disability; and, as the competent and probative medical evidence of record indicates that the Veteran's chest pain is part and parcel of his service-connected rib injury residuals, service connection for chest pain is not warranted. On the whole, there simply is not evidence of current disability, including from the Veteran's statements, necessary to support service connection for an additional disorder manifested by chest pain. Without current disability, service connection cannot be granted. See Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). This is despite whether there was precipitating injury in service. Should the Veteran become aware of a separate diagnosis manifested by chest pain that may be of service origin, he may always file a petition to reopen. The preponderance of the evidence being unfavorable, the benefit-of-the-doubt doctrine is not applicable, and the claim under these circumstances must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER The claim for service connection for disability manifested by chest pains, other than the service-connected muscle group XXI injury, is denied. ____________________________________________ S. S. Toth Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs