Citation Nr: 21020705 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 14-35 405 DATE: April 8, 2021 REMANDED Entitlement to service connection for a chest disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1975 until his honorable discharge in February 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Veteran testified at a hearing before the undersigned. A transcript of his testimony has been associated with the claims file In October 2020, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to request a list of private treatment providers and signed authorizations for release of medical records from the Veteran and obtain relevant Social Security Administration (SSA) records. The RO sent a letter to the Veteran in October 2020 requesting his help with developing the record and obtaining authorizations for release of private medical records. No response was received. The RO obtained the Veteran’s SSA records in October 2020 and his VA treatment records in November 2020. The Veteran’s representative argued in their brief that the RO had failed to comply with the Board’s remand because the RO did not notify the Veteran when all efforts to obtain his private treatment records had been exhausted. This is an inaccurate reading of the Board’s October 2020 remand. This notification was only required if the RO was unable to obtain private treatment records that the Veteran had reported to the RO. As the Veteran did not respond to the October 2020 development letter, there were no records to attempt to obtain and so no possible notification of any failure to do so to send to the Veteran. Unfortunately, the claim must be remanded as the Board cannot make a fully-informed decision on the issue of entitlement to service connection for a chest disability because there is insufficient medical evidence to decide the claim at this time. A remand is necessary to obtain a VA examination. Entitlement to service connection for a chest disability. After the RO obtained updated VA treatment records, a VA examination was required to determine if the Veteran’s atrial fibrillation had any connection to service. The Veteran asserts that he “cracked” the cartilage between his sternum and ribs during active service in Germany when he was sleeping under the “gun butt” of a tank. He asserts that the gun was raised and the end of it “started crushing his chest” before he was able to slide out from under it. See September 2018 Hearing. The representative called this an injury to his “intercostal margin.” The Veteran stated that this caused pain when he coughed or sneezed as well as atrial fibrillation, although he did not have a medical diagnosis or opinion confirming this at the time of the hearing. The Veteran filed his claim for service connection for a “chest injury” in June 2013. However, there was no reference to what that injury was until his hearing. There is no reference to an “intercostal margin” injury in his medical records; however, he was diagnosed with atrial fibrillation as explained in his hearing. See VA Treatment Records. The Board will take an expansive reading of the Veteran’s claim for a “chest injury” and consider his theory of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes providing a medical examination when one is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, has a presumptive disease during the pertinent presumptive period, or is service-connected for a disability that may have caused or aggravated the Veteran's disability; and (3) indicates that the claimed disability may be associated with the in-service event, injury, disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). The Board may not make a medical determination without relying on independent medical evidence. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). As a result, the claim must be remanded in order to obtain a VA medical examination. The matter is REMANDED for the following action: 1. After obtaining appropriate authorization, obtain and associate with the claims file any outstanding VA treatment records and any outstanding, relevant private treatment records related to the Veteran’s claims. 2. Thereafter, schedule the Veteran for a VA examination for his chest disability, to include an injury to the intercoastal margin. The examiner should review the claims file and a copy of this remand. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (Continued on the next page)   a. Is the chest disability at least as likely as not (50 percent or greater probability) related to service, including an injury to the intercoastal margin? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. The examiner should address the Veteran’s theory asserted at his hearing that the injury was caused when the “gun butt” of a tank crushed his chest before he could slide out from under it. It should be noted whether the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A. Johnston, 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.