Citation Nr: 18151562 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 10-16 106 DATE: November 20, 2018 ORDER The claim of entitlement to service connection for a left rib disability is denied. REMANDED The claim of entitlement to service connection for a left shoulder disability is remanded. FINDING OF FACT Although the Veteran asserts that he has a current left rib disability related to his service, to include a September 1969 motor vehicle accident, no chronic left rib disability was shown in service or thereafter; and the only competent, probative evidence to address whether there exists a medical relationship between a left rib disability shown in 2009 and the Veteran’s service weighs against the claim. CONCLUSION OF LAW The criteria for service connection for a left rib disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from May 1966 to March 1970. This appeal to the Board of Veterans’ Appeals (Board) arose from a June 2009 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in denied the Veteran’s claims for service connection for a left rib disability and left shoulder disability. The Veteran filed a notice of disagreement (NOD) in July 2009. A statement of the case (SOC) was issued in March 2010 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in April 2010. In March 2012, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In March 2013, December 2014, May 2016, and May 2017, . the Board remanded the claims on appeal to the agency of original jurisdiction (AOJ) for additional development. After accomplishing further action on each occasion, the AOJ continued to deny each claim (as reflected in supplemental SOCs (SSOCs) dated in August 2013, April 2015, November 2016, and April 2018, respectively), and returned this matter to the Board for further appellate consideration. The Board is now satisfied that all notification and development actions needed to fairly resolve the Veteran’s claim of entitlement to service connection for a left rib disability have been accomplished. A pre-rating letter providing notice of what is needed to substantiate a claim for service connection was sent to the Veteran. Furthermore, prior to the Veteran’s Board hearing and pertinent to this claim, as explained below, the record included the Veteran’s service treatment records (STRs), private treatment records, VA treatment records and the report of a June 2009 VA examination. Pursuant to the development requested in the March 2013 remand, the Veteran underwent a VA examination in July 2013; the report of that examination is of record. In April 2015, the Veteran underwent an additional examination as requested in the December 2014 remand; the report of that examination is also of record. Moreover, updated VA treatment records were obtained on each occasion. On the most recent remand in May 2017, the Board directed the to obtain outstanding VA treatment records dating back to 1984, to specifically include from the Ann Arbor VA Medical Center (VAMC), where the Veteran reported he may have received back surgery “in 1984 or 1994.” However, in March 2018, it was certified that the Veteran had no VA medical records prior to his initial treatment date in February 2003. Also, although, on multiple occasions, the Veteran was invited to submit, or identify, pertinent additional records, to include private records, there is no identified evidence for which the Veteran has provided appropriate authorization to obtain, or other existing, relevant evidence outstanding, and neither the Veteran nor his representative has alleged any error or omission in the assistance provided regarding the Veteran’s claim for service connection for a left rib disability. Hence, the Veteran is not prejudiced by the Board proceeding to a decision on this claim, at this juncture. The Veteran generally contends that he has a chronic left rib disability resulting from an in-service motor vehicle accident. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) 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, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1101. Thus, evidence of current disability is a fundamental requirement for a grant of service connection. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (citing Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997)). In McClain, the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a veteran has a disability at the time she files her claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain, supra. at 321; see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (holding that a recent diagnosis of disability prior to the Veteran filing a claim is relevant evidence that must be considered). Certain chronic diseases shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit has clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology (in lieu of a medical nexus opinion) apply to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The determination as to whether elements of a service connection claim are met is based on an analysis of all the evidence of record and the evaluation of its competency, credibility and probative value. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). See Baldwin v. West, 13 Vet. App. 1,8 (1999). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-6 (1990). The Veteran’s STRs reflect that the Veteran was involved in an automobile accident in September 1969. One month after the reported automobile accident, the Veteran’s hospital treatment record dated October 24, 1969, shows the Veteran complained of pain in the left lower rib cage with tenderness. The radiographic report states, “[t]here is callus about the 6th [left] rib laterally, suggesting a healing rib fracture.” Treatment records from five days later state that the Veteran’s chest x-ray was negative for rib fractures. The following month, in a treatment record dated November 5, 1969, there is a note stating that the x-ray results were now interpreted as showing a fracture of the 6th rib. February 1970 treatment records indicate that x-rays revealed well-healed left rib fractures. Following the Veteran’s separation from service in March 1970, there are no medical treatment records until 1983; the claims file includes post-service private treatment records from various facilities dated from May 1983 to December 2002. The private treatment records are silent as to complaints of a rib condition and include several records of chest x-rays, none of which were noted to show any rib fractures. The Veteran began receiving VA treatment in February 2003. These records reflect that chest x-rays in July 2006 and January 2008 were interpreted as revealing no rib fractures. In June 2009, the Veteran’s chest x-ray was noted to show a fracture of the left 7th rib and a possible fracture of the left 8th rib. Subsequent chest x-rays in September 2009, February 2010 and April 2014 revealed rib fractures. In the report of a June 2009 VA examination, the examiner noted the Veteran’s report that he had “always had rib problems” but had never been seen by a doctor. The examiner reviewed the Veteran’s chest x-ray from the same date and reported, “[a] mildly displaced fracture of the left seventh rib is noted. There is also mild deformity along the anterior left 8th rib which may represent a fracture. On one view there is also a linear lucency seen through the left 10th rib which could be artifact versus a fracture.” The examiner further stated that “[r]eview of the c-file show SMR notes of the x-ray revealed fracture of the 6th rib anteriorly. It could be speculation that the current x-ray findings (2009) showing “mildly ribs” could be the old fractures in 1969. Veteran had a fall from the ladder in 2000 at work but did not report rib fractures. VA Medical records did not show any treatment for residuals of rib fractures.” During the March 2012 Board hearing, Veteran expressed his belief that, as a result of his motor vehicle accident in service, he injured his ribs and left shoulder and that those injuries became a chronic problem which he believes have risen to the level of being debilitating disabilities. The Veteran also testified that his ribs have always been painful and that he is impacted by weather changes or if he moves a certain way. Additionally, during the hearing, the Veteran testified that he has hurt his ribs several times since his in-service automobile accident, to include three or four instances of broken ribs. In July 2013, the Veteran underwent a VA examination as directed by a March 2013 remand. This examiner reported the Veteran’s diagnosis as old healed rib fractures. Under medical opinion for direct service connection, the examiner marked the box for a positive nexus opinion, however, he proceeded to provide a rationale for a negative nexus opinion. The examiner stated, “[t]he veteran’s 6th rib fracture historically was caused by his MVA in service. However, the vet has no disability related to same at this time. Also note that vet had subsequent rib fractures/trauma after service.” In April 2015, the Veteran underwent another VA examination, pursuant to a December 2014 remand. After reviewing all evidence of record, including medical evidence and lay statements, the examiner concluded that the Veteran’s left rib injury described in the June 2009 x-ray report is less as likely as not medically related to the Veteran’s service, to include the Veteran’s in-service motor vehicle accident. The examiner provided an extensive summary of the medical evidence and the Veteran’s lay assertions, including the Veteran’s STRs, post-service private treatment records, post-service VA treatment records, VA examinations of June 2009 and July 2013 and the results of chest x-rays within these medical records. The examiner reported that the medical evidence of record reflects no complaints or diagnoses of rib conditions after service and further noted that during this period, the Veteran had several chest x-rays, none of which noted a rib fracture condition or any residuals until June 2009. In summary, the examiner wrote the following: The veteran’s recent medical records show no documentation of complaints or diagnosis of rib fracture condition or residuals. Medical literature supports that the rib fractures heal over time and the pain from rib fractures last a few months and then goes away. Also, medical literature does not support that a left rib fracture of 1969 can cause a left 7th and 8th rib fracture noted in 2009. These conditions are anatomically different and cannot be causally related. Considering the pertinent evidence of record in light of the governing legal authority, the Board finds that service connection for a left rib injury is not warranted. The Board notes that the Veteran’s x-ray reports document that he had a fracture of the left 6th rib subsequent to his 1969 in-service motor vehicle accident (evidence that satisfies the in-service injury or disease requirement) and that he had left 7th and 8th rib fractures in 2009 (which appears to document current left rib disability at a point pertinent to the current claim, consistent with McClain, supra). However, competent, credible and probative evidence does not support a finding of a current, chronic rib disability that began in service. The claim must, thus, be denied based on medical nexus. As indicated, despite the Veteran’s injuries sustained as the result of an in-service motor vehicle accident, no chronic rib disability was shown in service or immediately after. Further, the Veteran’s private treatment records and VA treatment records after service are silent as to complaints of rib conditions or notations of rib fractures until the 2009 x-ray reflecting fractures of the left 7th and 8th ribs. The Veteran reported a history of multiple rib fractures and as stated by the VA examiner of April 2015, the medical literature supports that rib fractures heal over time and the Veteran’s June 2009 rib fractures are anatomically different than the Veteran’s September 1969 rib fractures. Notably, as a fractured rib is not listed as a chronic disease under 38 C.F.R. § 3.309(a), presumptive service connection is not available and he cannot establish service connection solely based on continuity of symptoms. See 38 C.F.R. §§ 3.303, 3.303(b), 3.307, 3.309; Walker, supra. The Board notes, in any event, that while the Veteran has asserted that he suffered from rib problems continuously since his September 1969 in-service motor vehicle accident, the Veteran’s post-service treatment records are silent for rib complaints or fractures (despite reporting other problems) until his June 2009 x-rays, and the Veteran has admitted experiencing additional (intervening) rib injuries since his initial in-service injury. Significantly, moreover, the only competent, probative opinion evidence to address the medical relationship, if any, between any current rib condition and the Veteran’s service—particularly, his in-service motor vehicle accident and resulting rib fracture—weighs against the claim. Indeed, the only etiology opinions of record are negative. The Board notes that, in the March 2013 and December 2014 remands, the Board found deficiencies with the June 2009 and July 2013 VA examiners’ opinions. However, the April 2015 VA examiner’s opinion clearly was based on examination of the Veteran, as well as full consideration of the Veteran’s documented medical history and assertions, and is supported by clearly-stated rationale. As such, the Board accepts this opinion as probative of the medical nexus question. See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Significantly, there is no contrary medical evidence or opinion of record—i.e., one that, in fact, establishes a medical nexus between any current rib condition and service—and the Veteran has not presented or identified any such existing evidence or opinion. Finally, as for any direct assertions by the Veteran that there exists a medical relationship between any current left rib condition and service, the Board finds that no such assertions provide persuasive evidence in support of the claim. The matters of diagnosis and etiology of the disability here at issue are ones within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Although lay persons are competent to provide opinions on some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the diagnosis and etiology of any rib condition at issue are complex medical matters that fall outside the realm of common knowledge of as lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As the Veteran is not shown to be other than a layperson without appropriate training and expertise, he is not competent to render a probative (i.e., persuasive) opinion on the complex medical matters upon which this claim turns. Id. As lay assertions as to diagnosis and etiology of the disability for which service connection is sought have no probative value in this claim, the Board points out that the Veteran can neither support his claim, nor counter the competent, probative opinion of record, based on lay assertions, alone. For all the foregoing reasons, the Board finds that the claim for service connection for a right knee disability must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. REASONS FOR REMAND Unfortunately, the Board finds that further AOJ action on the remaining claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. The Veteran contends that he has a disability of his left shoulder that has caused him chronic pain since his in-service motor vehicle accident of 1969. On June 2009 VA examination, the examiner opined that the Veteran’s claimed left shoulder condition was less likely than not related to injuries incurred in service, but also indicated that examination revealed a normal left shoulder. The examiner specifically stated that the Veteran had no current disability, diagnosis or abnormality of the left shoulder. The examiner also stated, as part of the rationale for his negative nexus opinion, that the Veteran had not been treated for a left shoulder condition since his discharge from service and that he was not then being treated for a left shoulder condition. VA treatment records reveal that subsequent to that examination, and during the pendency of the Veteran’s appeal, the Veteran has sought treatment for his shoulder pain. Further, the Veteran’s records reveal that he was seen by an orthopedic physician in late 2015 and was offered shoulder replacement surgery, which he declined. Given the above, the Board finds that the medical evidence currently of record is insufficient to resolve the claim for service connection for a left shoulder disability, as outstanding questions pertaining to what, if any, current left shoulder disability(ies) exist(s), and as to the etiology of any such disability(ies), remain. Accordingly, the Board finds that another remand of this matter for further examination and opinions are needed to resolve the claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination or obtain a VA opinion when developing a service connection claim, even if not statutorily obligated to do so, it must provide or obtain one that is adequate for purposes of the determination being made). To this end, on remand, the AOJ should arrange for the Veteran to undergo VA examination by an appropriate physician, preferably an orthopedic physician. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of his claim for service connection. See 38 C.F.R. § 3.655. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records, to include any updated records of VA evaluation and/or treatment of the Veteran from the Bay Pines VAMC (where he has most recently been treated). The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal (to particularly include regarding any private (non-VA) medical records), explaining that he has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining claim on appeal. The matter is hereby REMANDED for the following action: 1. Obtain from the Bay Pines VAMC all outstanding records of VA evaluation and/or treatment of the Veteran. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the remaining claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination by an appropriate physician—preferably, an orthopedic physician. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. All indicated tests and studies, to include X-rays, should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly identify all left shoulder disability(ies) currently present or present at any point shortly prior to, at the time of the filing of, or during the pendency of, the current claim (even if now asymptomatic or resolved). Then, with respect to each such diagnosed disability, the physician should provide opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset during, or is otherwise medically related to, the Veteran’s active service, In addressing the above, the physician must consider and discuss all medical and other objective evidence of record, as well as all lay assertions, to include the Veteran’s assertions as to the nature, onset and continuity of symptoms, such as his report of experiencing shoulder pain since the in-service accident. Notably, the absence of documented evidence of a left shoulder disability and/or associated symptoms during or shortly after service should not, alone, serve as the sole basis for a negative opinion. In this regard, the physician is advised that the Veteran is competent to report his symptoms and history, and that his assertions in this regard must be considered in formulating the requested opinion(s). If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claim on appeal considering all pertinent evidence (to particularly include all that added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jacqulyn Lane, Associate Counsel