Citation Nr: 18159221 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 16-42 601 DATE: December 19, 2018 ORDER An application to reopen a claim for entitlement to service connection for residuals of a chest wall injury is granted; the appeal is reopened. Entitlement to service connection for residuals of chest wall injury is granted. FINDINGS OF FACT 1. In an June 1988 decision, the Agency of Original Jurisdiction (AOJ) denied reopening a claim for service connection for residuals of a chest injury; a timely notice of disagreement was not filed, and no new and material evidence was received within the appeal period. 2. Additional evidence received since the June 1988 decision is new, relates to an unestablished fact necessary to substantial the claim of service connection for residuals of a chest injury, to include fractured ribs, and raises a reasonable possibility of substantiating the claim. 3. The evidence is at least evenly balanced as to whether the Veteran’s has residuals of a chest injury related to an in-service injury. CONCLUSIONS OF LAW 1. The June 1988 RO denial of service connection for residuals of a chest wall injury became final, but new and material evidence has been received sufficient to reopen the previously denied claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for residuals of a chest wall injury are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSIONS Claim to Reopen Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. §3.156(a); see Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA’s duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. After reviewing the record, the Board finds that new evidence has been received since the final prior decision, and such evidence is material to the issue of service connection for a chest injury, to include residuals of broken ribs. In January 1977, the AOJ denied service connection for residuals of a chest injury based on the lack of a nexus between a pre-existing chest injury and active service. The Veteran did not appeal the determination. The Veteran filed an additional claim for service connection for broken ribs in April 1988. The AOJ denied reopening the claim in a June 1988 decision. Again, the Veteran did not file a timely notice of disagreement and no new and material evidence was received within the appeal period; therefore, the June 1988 rating decision also became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. Consequently, the Board will consider evidence received since the June 1988 decision. A November 2011 VA examiner determined that the injury from the pre-service motor vehicle injury which likely resulted in rib fractures with misattributed to the subsequent chest wall pain that started in July 2015. The area where the Veteran was found to have chest wall pain is consistent with where one might reasonably expect an injury to occur due to a sudden jerk from grabbing onto a rope while falling. If this injured the intercostal ligaments, the examiner reasoned that it was entirely possible they never completely healed, due in part to the constant movement of the chest with breathing. This opinion is both new and it is material to the claim as it relates directly to the issue on appeal and the reason that the claim was previously denied. Therefore, the claim of service connection for residuals of a chest injury is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). The Veteran contends he has a residual disability due to a chest injury in service. The Veteran’s service treatment records include February 1974 enlistment and medical history reports in which the Veteran reported a history of cracked ribs. The Veteran denied pain or pressure in chest, and physical examination showed lungs and chest as normal. The Veteran entered service in September 1974. In a July 1975 STR, the Veteran complained of a pulled muscle on the left side of chest two years ago. He stated it has been bothering him the last two days. In a subsequent July 1975 STR, the Veteran complained of left sided chest pain after swinging a golf club. In a September 1975 STR, the Veteran reported he has pain without tenderness in the left ribs. He stated it hurts to sneeze and deep breathe. He stated he had a fracture in his ribs one year ago that never really got back to normal, though he was less symptomatic until now. During a September 1975 thoracic surgery evaluation, the Veteran reported that in about April 1974, he was involved in a motor vehicle accident in which he sustained probable hairline fractures of the midribs on the left, at which time had considerable and associated pain. This pain has resolved considerably, though not completely. He reported pain and discomfort when he engages in vigorous or sudden physical activity which utilizes the muscles attached to the left chest wall. Upon physical examination, the examiner noted he has AP and lateral chest wall compression tenderness of a minor degree centered around the midaspect of the left hemithorax as well as mild tenderness to the direct pressure over ribs 6-10. A deep breath also produces minimal discomfort as does forced adduction of the left upper extremity. The diagnosis was left chest wall pain, musculoskeletal in origin. In a November 1975 anesthesiology note, the Veteran reported persistent left chest wall pain following nondisplaced rib fractures in April 1974. A Medical Board report showed the Veteran was referred to the thoracic surgery for evaluation. The determination was that the Veteran was unfit for full duty or further service by reason of physical disability; and this physical disability was neither incurred in, nor aggravated by, a period of active military service. In an April 2014 statement, the Veteran reported that while a junior in high school, he skidded on some ice and slid into the back of a parked car. He went to see a doctor and was told he had bruised or possibly cracked ribs. He still played basketball that year and baseball that summer. He also played sports his senior year of high school. When he was in the military, he was going to the gym a lot and working on his pull-ups. He first really hurt his left side while climbing up a rope. He slipped, but caught himself, hurting his side. It felt like pulling a muscle. He sought treatment. He started getting nerve blocks which made his pain worse. He reported he was told that if he wanted to discontinue nerve blocks, he would have to say he wanted a medical discharge and admit to a pre-existing condition. The Veteran underwent a VA examination in June 2014. The examiner noted a history of a motor vehicle accident in April 1974. His pain had reduced, but was still chronically persistent with certain activities. The Veteran reported he has occasional catch in his left chest when he takes a breath. He concurs with the history of the pre-service accident and rib fractures. While in service he was trying to do pull-ups in mid-summer 1975 and yanked his ribs which caused pain, leading ot the need for visits for rib pain. Due to the increase in pain due to heavy physical activity in 1975, and the lack of improvement after various forms of light duty and treatment, he was found unfit for duty. Since discharge from service, the condition and pain has decreased over time to approximately the pre-service baseline of an estimated 5 percent. However, had the aggravated not occurred, it is opinion that he would not likely have any residual pain at this time many years later. In a July 2014 addendum, the examiner reported the Veteran’s left-sided chronic chest wall pain was not permanently aggravated by service and the opinion of the June 2014 examiner has no merit. Her opinion is not supported by the objective records and no rationale for her opinion was provided. It is well-known to experts that rib fractures or chest surgery may result in intercostal nerve neuralgia due to direct nerve trauma or due to nerve encasement in scar tissue. On active duty, the Veteran had disabling chronic chest wall pain flares. Once released from active duty, the Veteran went back to his stable civilian level with no functional impairment of occupation. There is no permanent aggravation if there is no functional loss and the pain levels remained stable. In a May 2015 notice of disagreement, the Veteran asserted he enlisted in February 1974 and he had been injured in a vehicle accident and had cracked ribs. He continued to play sports. He asserted he was injured climbing a rope at Camp Pendleton. He was given nerve blocks which paralyzed him below his waist. He asserts he was advised to tell the Board that this had happened before he enlisted, but it happened while he was in training. The Veteran provided a statement with his August 2016 substantive appeal. The Veteran asserted he was in an accident while a senior in high school. He stated he went to basketball practice three days after the accident. He pitched baseball and carried shingles up a ladder all summer. In July 1975, he was climbing a rope on base to try to get stronger. He was at the top of the rope when he slipped and slid down the rope. He asserted he jammed his left knee which was fixed in December 1976. He stated he tore something in his chest which he still feels. This was diagnosed as an intercostal muscle injury. He reported he was told to request a medical discharge and say it was pre-existing because in one year he could start the paperwork to have it changed to service connected. He asserted his cracked ribs are not even in the same position as his current pain. During a June 2017 Board hearing, the Veteran reported he first injured his ribs in 1972 or 1973. At that time, it was the lower region of his ribs that was injured, the bottom of his ribcage. He asserted he never reinjured that area. In service, he sustained a separate injury to his intercostal muscles while climbing a rope. He stated he was climbing a rope, and slipped, He fell all the way down till he hit the ground and it felt like he pulled something under his left armpit. The Veteran submitted a private evaluation dated in July 2017. The examiner reviewed the Veteran’s service treatment records as well as post-service treatment records. The osteopath indicated the Veteran stated he was 19 years old when he had been in the Marines and stationed at Camp Pendleton, when he was on a rope trying to clime about 20 feet. He stated he fell off the rope and pulled his ribs on the left side and has had significant pain ever since. He stated that he saw multiple providers and had complaints of intercostal muscle pain. He continued to have a lot of shortness of breath with inspiration. He was evaluated by a thoracic surgeon who reported the Veteran had midthoracic chest wall pain prior to this; however, the Veteran does not state that he had that problem. He asserts that he had a minor motor vehicle accident when he was 16, and this was 3 years prior to enlisting in the Marines. He stated the pain resolved and he had no treatment. After the rope incident in service, the Veteran sustained a lot of significant pain and he has not been able to do a lot of activities. The examiner noted the Veteran was not a good historian as he has had 4 head injuries in the past and has had additional motor vehicle accidents. After interview with the Veteran, the osteopath determined it is at least as likely as not probability that the Veteran sustained this costochondritis pain while he was in the service in 1975. The Veteran had a previous motor vehicle accident when he was 16, but did not seek any medical attention, did not get an x-ray, and did not have any rib fractures. This was inappropriately stated in his records and has impaired his ability to get service connection. The Veteran did have a significant injury in July 1975 whereby he fell off a 20-foot rope, and ever since then he has had significant pain in the midaxillary line. The Veteran underwent a VA nerve examination in October 2017. After a physical examination, the examiner noted that the STRs clearly support the evidence that at a point in time during his active duty service he sustained either a new injury, or a re-injury or re-aggravation to the left chest wall and subsequently sought medical attention which led to the diagnosis on July 19, 1975 of an acute left chest wall intercostal strain. When the Veterans symptoms persisted, he was referred for MEB board and was released from service in March 1976 as he could not perform the duties of his position due to the injury. The Veteran was evaluated by a private examination in July 2017. The examination findings and conclusions as detailed in her medical report are additional evidence of continuity of symptoms from service to present. The Veteran underwent a VA muscle injuries examination in November 2017. The Veteran reported the onset of the condition in 1975. He reported he was climbing a rope while enlisted in the Marines and fell catching himself with the rope. He reported immediate pain in the upper left lateral chest and difficulty breathing after this incident. He was seen several times after the reported incident. He does also report an accident in 1974 that likely resulted in lower rib fractures on the left side, but this condition had almost completely resolved prior to the injury while enlisted. Furthermore, he stated that the pain from the rib fractures was much lower down on the chest wall than the pain that resulted from the injury while climbing the rope. The condition did improve initially, but has since been stable for decades. He complained of a constant pain in the left upper lateral chest which is sharp in nature and gives him the feeling he cannot take a full breath. The pain worsens with overhead activity and sleeping on his left side. The examiner noted muscle injury to Group XXI muscles, the thoracic muscle group, on the left. The Veteran was visibly uncomfortable and hesitated with overhead movements and points to his upper left chest. The examiner opined that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury. The Veteran entered military service in September 1974 after a recent motor vehicle accident where he admittedly sustained an injury to the lower chest wall. The medical record is silent regarding any subsequent chest wall pain until September 1975 when he was seen at a medical clinic and diagnosed with chest wall strain. The history in the medical record as to when the pain started is poor and somewhat conflicting. The examiner found it is likely that his injury from the motor vehicle accident which likely resulted in right fractures was misattributed to the subsequent chest wall pain that started in July 1975. The area where the Veteran was found to have chest wall pain was consistent with where one might reasonably expect and injury to occur due to a sudden jerk from grabbing onto a rope while falling. If this injured intercostal ligaments, it is entirely possible that these have never completely healed, due to part to the constant movement of the chest with breathing. While the Veteran’s symptoms have not been debilitating, they have been persistent and consistent with chronic intercostal strain/sprain of the muscles/ligaments in this area. The evidence noted in the examination reports and treatment notes establish that the Veteran has current residuals of a left chest wall injury. Although there is no evidence of a rope fall, there is evidence of an injury while swinging a golf club and a pre-existing rib injury. Nonetheless, the Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he has observed and are within the realm of his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The dispositive issue is whether there is a nexus between the two. (Continued on the next page)   Although the July 2014 VA examiner determined there was no aggravation of a pre-existing injury, the June 2014 VA examiner determined there was aggravation of a pre-existing injury. Additionally, the July 2017 private examiner and November 2017 VA examiner found the Veteran’s current disorder to be the result of a separate in-service injury from a claimed rope fall. The October 2017 VA examiner indicated the Veteran’s complaints persisted since service. The Board finds that the evidence is at least evenly balanced as to whether the Veteran’s current residuals of a chest wall injury are related to an in-service left chest injury. Under these circumstances, the law requires the application of the benefit of the doubt doctrine. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for residuals of a chest wall injury is warranted. M. Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Diane M. Donahue Boushehri, Counsel