Citation Nr: 21021080 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 16-11 468 DATE: April 9, 2021 ORDER Entitlement to service connection for a fracture of the right sternoclavicular joint is denied. FINDINGS OF FACT 1. A fracture of the right sternoclavicular joint was noted upon the Veteran’s entry to active duty. 2. The Veteran’s fracture of the right sternoclavicular joint was not aggravated during his period of active service. CONCLUSION OF LAW The criteria for service connection for a fracture of the right sternoclavicular joint are not met. 38 U.S.C. §§ 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from September 1980 to March 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, reopened a previously denied claim of service connection for a fracture of the right sternoclavicular joint and denied the claim on the merits. In June 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In an October 2019 decision, the Board found that new and material evidence had been received to reconsider the previously denied claim of service connection for a fracture of the right sternoclavicular joint. The Board remanded the claim for further evidentiary development. In April 2020, the Board again remanded the matter for additional development. A Supplemental Statement of the Case was issued in February 2021 and the matter has since been returned to the Board for adjudication of the appeal. 1. Entitlement to service connection for a fracture of the right sternoclavicular joint. The Veteran contends that his preexisting fracture of the right sternoclavicular joint was aggravated by his active service, resulting in his current disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Several statutory presumptions operate in connection with the laws providing for service connection, including the presumption of soundness. Under the presumption of soundness, a Veteran is presumed to have been in sound condition when entering service, except as to defects, infirmities, or disorders noted at the time of the examination or where clear and unmistakable evidence demonstrates that the injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C.A. § 1132, 1137. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). As set forth below, the Veteran’s fracture of the right sternoclavicular joint was noted on his entry into service. Thus, the presumption of soundness does not apply. Where, as here, a disability is noted upon entry into service, a claimant cannot bring a claim for service connection for that disorder, but may bring a claim for service-connected aggravation of that disorder. In such cases, the burden falls on the veteran to establish aggravation under 38 U.S.C. § 1153. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing that the increase in disability is due to the natural progress of the disease. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The presumption of aggravation provides that a preexisting disease or injury will be considered to have been aggravated by military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). If the presumption of aggravation under 38 U.S.C.S. § 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing that the increase in disability is due to the natural progress of the disease. 38 U.S.C.S. § 1153. Clear and unmistakable evidence is required to rebut the presumption of aggravation. Aggravation may not be conceded, however, where the disability underwent no increase in severity during service based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and after service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). Further, temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted with symptoms, has worsened. See Davis v. Principi, 276 F.3d. 1341, 1346-46 (Fed. Cir. 2002) ( [E]vidence of temporary flare-ups symptomatic of an underlying preexisting condition, alone, is not sufficient for a non-combat veteran to show increased disability under 38 U.S.C. § 1153 unless the underlying condition is worsened ); Maxson v. West, 12 Vet. App. 453, 458 (1999) (citing Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991)), aff’d 230 F.3d 1330 (Fed. Cir. 2000). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Turning to the evidence of record, the Veteran’s July 1980 entrance examination report notes a history of an open reduction and internal fixation for an injury to the right sternoclavicular joint at the age of 16; in light of this history, he was referred for further orthopedic evaluation. During a September 1980 preservice orthopedic consultation, the Veteran reported that he had no problems with his joint since the repair. He exhibited 100 percent range of motion and good power and function. X-ray studies showed two pins in right sternoclavicular joint, one of which was broken. The examiner noted that that the defects on entry into service included a right clavicular injury three years ago, asymptomatic, and recommended a “2” rating for the Veteran’s upper extremities under the PUHLES system. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992); (observing that the PULHES profile reflects the overall physical and psychiatric condition of the veteran's capacity and stamina (P); upper extremities (U); lower extremities (L); hearing (H); eyes (E) and psychiatric condition (S) assessed on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). In light of this evidence, which is not contested by the Veteran, the Board finds that the Veteran’s fracture of the right sternoclavicular joint with broken surgical pin was noted on entry. In-service treatment records reflect that in January 1981, the Veteran sought treatment for right shoulder pain. He reported a history of a sternoclavicular joint fracture and indicated that his joint was being held together by pins. He indicated that his problems increased during cold or inclement weather and disappeared after. He also reported that pushups caused discomfort and popping. The Veteran was referred for an orthopedic consultation in connection with his reports that he had a history of a right clavicle fracture and was experiencing increasing pain with motion around the primary site. During the February 1981 orthopedic consultation, the Veteran reported a history of an injury to his shoulder at the age of 16. He indicated that approximately two months following the injury, he underwent an apparent open reduction for the sternoclavicular joint injury. The Veteran reported that he had had pain at the operative site since the operation which had been increasing. He specifically denied reinjury. On examination, the Veteran exhibited full range of shoulder motion although quick motion produced pain. The orthopedist noted that X-ray studies showed “retained crossed K-wires at the SC joint. The superior pin is broken and the tip end is displaced 3cm medially. Lateral views show it to be in the sternum.” The orthopedist indicated that removal of the pins may provide pain relief although this could not be guaranteed. He indicated that the pins should have been removed about six weeks post original surgery. A February 1981 Medical Board report shows that the Veteran was determined to be unfit for full duty. It was noted that removal of the two large wire fragments noted on X-ray could be accomplished surgically but removal of the small fragment would be extremely difficult as it was buried deep within the sternum. Although removal could provide pain relief, due to the previous injury to the sternoclavicular joint, permanent pain relief was unlikely. The report noted that the Veteran’s performance to date had been limited by the right shoulder pain and it was the opinion of the examiner that additional surgical treatment would not provide relief of symptoms to allow return to full duty. Thus, the Veteran did not meet the minimum standards for enlistment or induction and was unfit for duty by reason of physical disability. The diagnosis was arthritis, sternoclavicular joint, right, existed prior to entry, not service aggravated, and retained, crossed, broken Kirschner wires, right sternoclavicular joint, symptomatic with training, existed prior to entry, not service aggravated. The Medical Board determined that the Veteran’s physical disability was neither incurred in, nor aggravated by, active service. The condition was noted to have existed prior to entry and was not aggravated in service. During his June 2019 Board hearing, the Veteran testified that prior to service, he had undergone surgery after he injured his shoulder. After that time, he did not have any symptoms. During service while performing physical training, he heard his shoulder pop and felt a pain. He indicated that he underwent X-ray studies and was told that there was a pin by his heart and that an operation was not possible so he was discharged on a medical basis. He indicated that he was currently experiencing pain in his clavicle area. In connection with the Veteran’s claim, VA obtained a medical opinion from a VA physician. After reviewing the record on appeal, the VA physician concluded that the Veteran’s claimed condition clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The VA physician explained that the medically reasonable natural progression from a traumatic injury such as the one experienced by the Veteran prior to service is the early development of degenerative changes in and around the joint as well as progressive discomfort or pain. The physician noted that despite the Veteran’s contentions that the surgical pin in his clavicle was broken during service as a result of physical training, the initial orthopedic evaluation prior to the Veteran’s military service noted a broken pin on X-ray. Thus, the Veteran’s claim that the pin broke during his military service was not consistent with the evidence in his medical records. The VA physician further noted that the Medical Board evaluation also noted a preexisting broken pin on X-ray. The VA physician also considered the Veteran’s reports that he experienced symptoms in service after performing physical training but explained that with the increased activity required for military service, it was understandable that he would have a transient increase in the pain in his right sternoclavicular joint even without a new injury. However, this was consistent with a flare-up of his preexisting condition and not a permanent worsening of it. The VA physician indicated that he had examined the entire file and there was no objective evidence supporting the premise that the Veteran’s preexisting right sternoclavicular joint injury was aggravated beyond its natural progression during his military service. After reviewing the record in its entirety, the Board concludes that the preponderance of the evidence is against the claim. As noted above, the Veteran’s service treatment records show that a fracture of the right sternoclavicular joint was noted on entry. This notation on entry also included X-ray studies showing retained surgical pins at the sternoclavicular joint, one of which was broken. Although the Veteran reported that the condition was asymptomatic at that time, and although he reported that he developed symptoms in service during physical training, the Board finds that the condition (the right sternoclavicular joint fracture with a broken surgical pin) was not aggravated during service. As set forth above, a VA physician reviewed the record and explained that the symptoms the Veteran experienced during service represented a temporary flare-up of his preexisting condition and not a permanent worsening of it. Rather, such symptoms were expected, understandable transient increases in pain as a result of performing the activities required for military service. As noted above, temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted with symptoms, has worsened. See Davis v. Principi, 276 F.3d. 1341, 1346-46 (Fed. Cir. 2002). The Board has considered the Veteran’s contentions to the effect that the symptoms he experienced in service represented an aggravation of his preexisting condition but finds that he lacks the competency to offer such an opinion. This is a subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Similarly, the Board has considered the Veteran’s contentions to the effect that the surgical pins placed prior to entry were broken during active duty as a result of physical training but again finds that his statements are not competent. As explained above, the surgical pins were internal, not observable. Moreover, the VA physician who reviewed the record explained that imaging studies showed that the broken pin was present at entry. Thus, the Veteran’s claim that the pin broke during his military service was not consistent with the clinical evidence in his medical records. The Board notes that its conclusion is also consistent with the findings of the Medical Board, given the conclusion that the Veteran’s condition preexisted service and was not aggravated therein. The Board notes that there is no medical opinion evidence to the contrary and assigns greater probative weight to the opinions of the VA physician and the Medical Board physicians than to the Veteran’s lay contentions, given the medical expertise of the former. As the most competent and credible evidence of record does not show an increase in the severity of the preexisting fracture of the right sternoclavicular joint with broken surgical pin during service, the presumption of aggravation does not attach. As such, a discussion of clear and unmistakable evidence to rebut the presumption of aggravation is not required. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Because the Veteran’s pre-existing fracture of the right sternoclavicular joint was not aggravated by military service entitlement to service connection must be denied. 38 C.F.R. § 3.304(b). The Board has also considered the notation of arthritis, sternoclavicular joint, at the Veteran’s Medical Board. Although arthritis was not noted prior to entry, as set forth above, the VA physician who reviewed the record and offered an opinion in this case explained that the medically reasonable natural progression from a traumatic injury such as the one experienced by the Veteran prior to service is the early development of degenerative changes in and around the joint. Thus, to the extent this represented an increase in the sternoclavicular joint fracture noted on entry, the Board finds that the record clearly and unmistakably reflects that it was part of its natural progression. Again, this is consistent with the findings of the military Medical Board and there is no medical opinion evidence to the contrary. In summary, the Board concludes that the Veteran’s preexisting fracture of the right sternoclavicular joint was not aggravated during active duty and that the arthritis of the sternoclavicular joint identified during active duty clearly and unmistakably represented the natural progress of the disease. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Penn, 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.