Citation Nr: 21071819 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 14-41 847 DATE: December 1, 2021 ORDER Entitlement to service connection for a disability manifested by thoracic outlet syndrome (claimed as a rib dislocation) is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDING OF FACT The evidence of record is at least in equipoise that the Veteran's disability manifested by thoracic outlet syndrome was caused by the Veteran's in-service bicycle accident. CONCLUSION OF LAW The criteria for entitlement to service connection for a disability manifested by thoracic outlet syndrome (claimed as a rib dislocation) have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2000 through September 2006. The Veteran testified at a hearing before the undersigned in December 2020. A transcript of the hearing is associated with the claims file. The Veteran's claims were remanded by the Board of Veterans' Appeals (Board) in April 2021 and July 2021. Review of the completed development related to the Board's remand reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 1. Entitlement to service connection for a disability manifested by thoracic outlet syndrome (claimed as a rib dislocation) The Veteran contends that he suffers from a disability that he initially believed was a rib dislocation due to an in-service bicycle injury. See November 2014 VA Form 9. The Veteran stated that the disability was found during physical therapy through the VA Medical Center and that there was no other trauma to his chest than the bicycle accident. Service connection may be granted for a 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. In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entire record. A layperson is competent to report on the onset and continuity of current symptomatology based on personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if the layperson: (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) is describing symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, at 1376-77 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded. The Veteran's service treatment records (STRs) do not report symptoms of a rib injury or a diagnosis of thoracic outlet syndrome. However, treatment records from January 2006 indicated that the Veteran was seen in April 2005 after he fell off mountain bike and fractured his elbow. It noted that the Veteran sought additional visits for symptoms of shoulder and wrist pain. During the Veteran's examination prior to separation in June 2006, the Veteran's lungs, chest, and abdomen were reported to be normal upon examination. The Veteran's Report of Medical History prior to separation from service also did not report symptoms of rib or chest pain. In July 2008, the Veteran was seen for physical therapy at a VAMC for an initial evaluation and treatment secondary to pain, numbness, weakness and tingling in his left upper extremity. The Veteran reported onset of symptoms in 2002 but did not notice radicular symptoms until after he fell and injured his left shoulder which resulted in surgery in 2005. In August 2008, the Veteran was provided a diagnosis of thoracic outlet syndrome in relation to the symptoms described. In May 2021, a VA examiner provided a diagnosis of thoracic outlet syndrome and opined that the condition was less likely than not due to the Veteran's period of active service. The examiner supported this opinion by stating, "there is no evidence in the Veteran's claims file that the Veteran's rib condition or thoracic outlet syndrome began during his time in service. This condition was first noted in 2008 as reported both by the veteran and in the claims file. A nexus has not been established." In September 2021, another VA examiner opined that it is at least as likely as not that the symptoms that were eventually diagnosed as thoracic outlet syndrome did indeed arise either during his period of active duty or soon afterwards due to the left shoulder area injuries and surgeries he required. The examiner indicated that the symptoms were likely either from direct damage occurring from his bike injury in 2005 or to damage and/or scar tissue development from his subsequent surgery. After review of the evidence of record, the Board finds that service connection is warranted for disability manifested by thoracic outlet syndrome (claimed as a rib dislocation) on a direct basis. The medical evidence of record, including the May 2021 VA examination, provides a diagnosis of thoracic outlet syndrome during the period on appeal. Accordingly, the first element needed for service connection has been established. The evidence also supports that the Veteran suffered an in-service bicycle injury, where he fell and injured his left elbow and shoulder. The Veteran has provided statements that after this injury he began suffering from pain that radiated from the left side of his chest into his left arm and neck. The Board finds these reports by the Veteran to be competent and credible; therefore, the second element needed for service connection has been established. Finally, the Board finds that the evidence of record supports a nexus between the Veteran's thoracic outlet syndrome and his in-service bicycle injury. The Board finds probative the positive opinion provided by the September 2021 VA examiner. The Board finds the opinion provided by the September 2021 examiner to be competent and credible, and as the report was based on accurate facts and review of the Veteran's medical records, the Board finds this opinion is entitled to significant probative weight as to the etiology of the Veteran's disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds the opinion of the September 2021 examiner to be of higher probative value than the opinion provided by the May 2021 examiner as it considered the Veteran's competent and credible lay statements regarding the onset of his symptoms of thoracic outlet syndrome. Id. It is also considered to be of greater probative value than the opinion provided by April 2018 VA examiner that found that the Veteran did not have a current disability as there was insufficient clinical evidence to support a diagnosis associated with rib dislocation. Rather, as discussed above, the Board finds probative the findings of the 2008 VA physical therapist and the May 2021 VA examiner that diagnosed the Veteran with thoracic outlet syndrome. Thus, the Board finds that the evidence is at the very least in equipoise as to whether the Veteran's thoracic outlet syndrome has been caused by his in-service bicycle accident in April 2005. As a result, the Board finds that the criteria for entitlement to service connection for a disability manifested by thoracic outlet syndrome (claimed as a rib dislocation) have been met. 38 C.F.R. §§ 3.102, 3.303; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran was afforded a VA examination regarding the etiology of his acquired psychiatric disorder diagnosed as an adjustment disorder in August 2021. Unfortunately, the Board finds that the evidence of record is not adequate to resolve the issue on appeal. Specifically, the Board finds that entitlement to service connection for an adjustment disorder on a secondary basis has been reasonably raised by the evidence of record. The August 2021 examiner provided a diagnosis of an adjustment disorder and stated that the Veteran has anxiety which is the result of current phase of life issues (i.e., a family move, work uncertainty) as well as general worry and anxiety about the future. The Board notes that during the Veteran's December 2020 Board hearing the Veteran reported concerns about having passed on jobs due to his service-connected disabilities. See Hearing Transcript p.9. The Board finds that a medical opinion should be obtained that addresses whether the Veteran's current psychiatric disorder has been caused by, or aggravated by, his service-connected disabilities. The matters are REMANDED for the following action: 1. Undertake appropriate efforts to obtain a medical opinion regarding the etiology of any current acquired psychiatric disability. The entire claim file must be reviewed by the examiner. If the examiner determines that a physical examination is necessary, then one should be provided. The examiner should opine as to whether the Veteran's adjustment disorder, or any other current acquired psychiatric disability, is it at least as likely as not (a 50 percent probability or greater) caused by, or aggravated by, any service-connected disability. Separate opinions with rationale addressing causation and aggravation must be provided. If aggravation is found, the baseline level of the disability prior to aggravation should be provided, if possible. Any examiner is advised that the Veteran is competent to report in-service events, his symptoms and history. Such reports must be specifically acknowledged and considered in formulating any opinions. A thorough rationale, to include reference to relevant evidence of record as appropriate, should be provided for all opinions expressed. If the examiner is unable to provide a requested opinion, a supporting rationale must be given concerning why the opinion cannot be provided. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.M. Johnson, 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.