Citation Nr: 21064975 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 19-05 779A DATE: October 22, 2021 ORDER Entitlement to service connection for the residuals of broken ribs is denied. Entitlement to service connection for the residuals of a left arm compound fracture is denied. Entitlement to service connection for the residuals of a right leg fracture is denied. Entitlement to service connection for a right hip disability is denied. FINDINGS OF FACT 1. The Veteran does not have a current disability of residuals of broken ribs. 2. The Veteran does not have a current disability of residuals of a left arm compound fracture. 3. The Veteran does not have a current disability of residuals of a right leg fracture. 4. The Veteran does not have a current disability of residuals for a right hip disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the residuals of broken ribs have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to service connection for the residuals of a left arm compound fracture have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for entitlement to service connection for the residuals of a right leg fracture have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. 4. The criteria for entitlement to service connection for a right hip disability have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from February 1966 to May 1966, from December 1966 to July 1967, and from July 1971 to August 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in January 2020, it was remanded for additional development. The case has now been returned to the Board for further appellate consideration. In January 2020, the Board previously remanded the issue of service connection for a broken nose. In a March 2020 rating decision, the RO granted service connection for a broken nose, which constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, this matter is no longer in appellate status. The Board finds that there has been substantial compliance with the Board remand directives as they pertain to the claim for service connection for a bilateral knee disability. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). The Veteran contends that he is service connected for the above stated disabilities. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for the residuals of broken ribs is denied. The Veteran contends that he is entitled to service connection for the residuals of broken ribs that occurred while in service. The Veteran's service treatment records reflect an incident in July 1971 in which he fell off a wing and possibly fractured his ribs. While the Board concedes an in-service event, the March 2020 VA examiner diagnosed the Veteran with a resolved rib fracture and found that the Veteran's rib fracture healed well with no functional impairment. As such, the first element of a current diagnosis for entitlement to service connection is not met. The Board is cognizant of the recent holding in Saunders v. Wilkie which stated that where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). In sum, pain alone resulting in functional impairment is in fact a disability and should not be summarily discounted as a bar to benefits based on a finding of no current diagnosis. Here, however, no pain, tenderness to palpation, functional impairment, masses or deformities are indicated during the Veteran's VA examination. As such, Saunders is not for application. The Board notes that the Veteran submitted a private medical report in February 2019, in which Dr. T stated that the pain is constant in varying degrees and the examination revealed tenderness on palpation. Dr. T further stated this is a permanent condition directly related to the Veteran's military service. Dr. T's report does not indicate what if any examinations were conducted to reach her conclusion; as such, the Board affords the private medical report little probative value. Service connection for residuals of broken ribs is denied. 2. Entitlement to service connection for the residuals of a left arm compound fracture is denied. The Veteran contends that he is entitled to service connection for the residuals of a left arm compound fracture due to an in-service motor vehicle accident. The Veteran's service treatment records reflect treatment for a left arm fracture while in service. The Veteran was afforded a VA examination in November 2017, during which the examiner indicated that a 1966 physical examination showed "complete healing of proximal ulna fracture"; however, the examiner further stated that the motor vehicle accident did not occur during active duty. As the Veteran's records indicated the accident did occur during active duty, a new VA examination was provided. The March 2020 VA examiner diagnosed the Veteran with left proximal ulna fracture resolved, stating that the Veteran's fracture healed well with no functional impairment. Moreover, no pain was noted during the examination, to include no evidence of pain with weight bearing. Saunders, at 1361. The Veteran provided a statement in October 2020 in which he stated that after he fractured his arm, he was told he would never be able to use his left arm; however, he does not address his current ability to use his left arm. While the initial fracture was caused during the Veteran's military service, there is no current disability to warrant service connection for the residuals of a left arm compound fracture. There is no contrary medical opinion, so there is no reasonable doubt that could be resolved in the Veteran's favor. Unfortunately, service connection for residuals of a left arm compound fracture must be denied. 3. Entitlement to service connection for the residuals of a right leg fracture is denied. 4. Entitlement to service connection for a right hip disability is denied. The Veteran contends that his right leg and right hip residuals are due to the in-service motor vehicle accident. In the Veteran's October 2020 statement, he stated that he had a cast from his right hip to foot after his motor vehicle accident. However, the Veteran's service treatment records are silent for any right leg or right hip injury, although the Veteran's left arm fracture from the same motor vehicle accident is thoroughly documented. Moreover, the March 2020 VA examiner found no objective evidence of a right leg fracture during the VA examination. The VA examination did not reveal tenderness to palpation, masses or deformities to the right leg. Additionally, during the Veteran's hip examination, the Veteran did not report flare-ups and no pain was noted on the examination. The examiner found no objective evidence of a right hip condition upon the examination. The Board notes that the Veteran's September 2020 treatment records indicate a history of right leg pain and right leg surgery; however, as stated above, the record does not reflect a current disability for residuals of a right leg fracture, no pain was reported during the March 2020 VA examination, and the record is silent for an inservice event pertaining to a fractured right leg. (Continued on the next page) There is no contrary medical opinion, so there is no reasonable doubt that could be resolved in the Veteran's favor. Unfortunately, service connection for residuals of a right leg fracture and a right hip disability must be denied. M. Mills Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Townsend, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED