Citation Nr: 18124841 Decision Date: 08/08/18 Archive Date: 08/08/18 DOCKET NO. 15-25 789 DATE: August 8, 2018 ORDER Entitlement to service connection for costochondritis is denied. FINDING OF FACT Costochondritis did not manifest in service and is not attributable to service. CONCLUSION OF LAW Costochondritis was not incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 2006 to October 2011. Service in Southwest Asia as well as receipt of the Combat Infantryman Badge are indicated by the record. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). On the Veteran’s substantive appeal dated July 2015, he requested a hearing before a Veterans Law Judge. However, in a statement dated August 2015, he cancelled his hearing request. Accordingly, his request for a hearing is considered to be withdrawn and his claim will be reviewed based on the evidence of record. See 38 C.F.R. § 20.704(e) (2017). Additional evidence was associated with the claims file following the most recent adjudication of the claim by the RO which was a June 2015 statement of the case. Although the Veteran has not waived initial review of the evidence by the RO pursuant to 38 C.F.R. § 20.1304 (2017), the Board notes that these records are essentially duplicative of the evidence of record at the time of the last RO adjudication as they simply continue to show current diagnosis of the disability on appeal. Costochondritis The Veteran contends that he has costochondritis that is related to his service, in particular from performing parachuting exercises. See, e.g., the Veteran’s VA Form 9 dated July 2015. Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: “(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”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). In the case of a Veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. 38 U.S.C. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The phrase "engaged in combat with the enemy" requires that the veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. VAOPGCPREC 12-99 (October 18, 1999); Gaines v. West, 11 Vet. App. 353 (1998). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2017). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. As to a current disability, the competent and probative evidence of record documents costochondritis. The May 2015 VA examiner diagnosed the Veteran with costochondritis, stating “This veteran has costochondritis, which is not a muscle injury, but rather: inflammation of the costal cartilage, the structure which connects each rib to the sternum at the costosternal joint.” Turning to in-service incurrence of an injury or disease, although the Veteran’s available service treatment records do not document treatment for costochondritis, the Board acknowledges his report that he was injured in service from performing parachuting exercises. The Board further notes that the Veteran is in receipt of the Combat Infantryman Badge for his combat service in Southwest Asia. Under 38 U.S.C. § 1154(b), a combat veteran's assertions of an event during combat are to be presumed if they are consistent with the time, place and circumstances of such service. The Board also notes that the Veteran’s personnel records document receipt of the parachutist badge. In light of the circumstances of the Veteran's service, the Board accepts his description of in-service event in which he had injury from parachuting. 38 U.S.C. §. 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. As such, although the Board accepts the Veteran's description of in-service injury from parachuting, the evidence must still establish by competent and probative evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet. App. 563 (1996); Kessel v. West, 13 Vet. App. 9 (1999); Libertine v. Brown, 9 Vet. App. 521 (1996). The Board has carefully evaluated the evidence and, for reasons stated immediately below, finds that a preponderance of the competent and probative evidence of record is against a finding that the Veteran’s current costochondritis is related to his service. Specifically, the Veteran was provided a VA examination in May 2015. The VA examiner noted the Veteran’s report of a history of injury during service from parachuting. After examination of the Veteran and consideration of his medical history, the VA examiner diagnosed the Veteran with costochondritis and concluded that it is less likely than not that the Veteran’s costochondritis was incurred in service. The VA examiner’s rationale for his conclusion was based on his finding that according to the Veteran’s verbal history, the onset of the costochondritis was in 2013 which is two years following discharge from service. Moreover, the service treatment records did not document treatment or findings related to costochondritis to include body trauma associated with parachute jumps. The May 2015 VA examiner’s opinion was based upon thorough analysis of the Veteran’s entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”]. Additionally, the VA examiner’s opinion is consistent with the Veteran’s documented medical history, which is absent any report of in-service symptomatology consistent with costochondritis. The examiner also noted the Veteran’s report of injury from parachuting exercises and further indicated that such injury did not cause the current costochondritis. The Veteran has not submitted a medical opinion to contradict the VA examiner’s opinion that his current costochondritis is not related to service. The Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim. He has not done so. See 38 U.S.C. § 5107(a) (2012) [it is the claimant’s responsibility to support a claim for VA benefits]. In relevant part, 38 U.S.C. 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). To the extent the Veteran asserts that his current costochondritis is related to his service, he is competent to report that he has a current diagnosis (as that is documented in the record). He is also competent to report that he has had symptoms since service. However, the record does not document any findings of symptoms associated with costochondritis in any of the available treatment records. The Board further notes the Veteran’s report to the May 2015 VA examiner that the onset of the costochondritis was in 2013. The Board also finds that the Veteran’s statements do not outweigh the opinion of the VA examiner who provided a thorough examination of the Veteran, considered his medical history and thereafter indicated that the Veteran’s current costochondritis is not related to service. Thus, these arguments do not outweigh the specific findings of the VA examiner who is a skilled neutral professional. In short, the more credible and probative evidence establishes that the Veteran’s current costochondritis was not manifest during service. For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for costochondritis. The benefit sought on appeal is accordingly denied. BISWAJIT CHATTERJEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Arif Syed, Counsel