Citation Nr: 21021815 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 09-31 966 DATE: April 14, 2021 ORDER The severance of service connection for a fractured rib with a painful scar from biopsy, effectuated by a rating decision of November 2011, was proper, and the appeal for restoration of service connection is denied. FINDING OF FACT The rating decision of October 2009, which granted service connection for a fractured rib with painful scar from biopsy, was based on a clear and unmistakable error. CONCLUSION OF LAW The severance of the award of service connection for fractured rib was proper. 38 U.S.C. §§ 1110, 5112; 38 C.F.R. §§ 3.102, 3.105(d). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1967 to August 1969. In November 2012, the Veteran testified at a Board hearing. At that hearing, the issue of severance was briefly discussed, but not on a substantive level. Following the hearing, a December 2013 Board decision found that while a notice of disagreement had been received with regard to the rating decision severing service connection for the rib disability, a statement of the case (SOC) had not been issued. As such, the claim was remanded. The SOC was provided, and the Veteran filed a timely filed a substantive appeal in which he requested a Board hearing on the issue. This hearing was scheduled for October 2015, but the Veteran cancelled the hearing. In December 2013, May 2016, and April 2020, the Board remanded the claim for additional development. 1. Propriety of a severance of service connection for fractured rib with painful scar from biopsy. The Veteran asserts that service connection should be restored for a fractured rib. He argues that service connection for his rib fracture should be restored because his rib would not have broken, but for the treatment and biopsy he underwent in association with his service-connected prostate cancer. During his hearing, held in November 2012, Veteran testified that his biopsy took about five hours and that it was close to his lung. He also stated that his oxygen saturation dropped during his February 2007 biopsy, and he indicated that this may be related to his rib fracture. In written testimony, he has alleged that his treatments for prostate cancer weakened his ribs, resulting in fractures, and that his February 2007 biopsy related to cancer aggravated a prior rib fracture. In a statement, received in October 2008, the Veteran stated that he was not arguing that compensation for a rib fracture was warranted under 38 U.S.C. § 1151. He stated: My rib broke because of coughing and I had a lot of pain. My private providers had to do a biopsy to see if my prostate cancer had spread to my bones because the rib should not have broken. It was not a clean break and the rib was pressing up against some nerves. I still have pain and a good-sized lump at the site of the biopsy from the scar tissue. A biopsy would not have been required if I did not have prostate cancer. See also Veteran’s supplemental statements in support of claim (VA Form 21-4138s), received in September 2009 (accepted as a notice of disagreement), March 2012 and May 2017. Once granted, service connection can be severed only upon VA’s showing that the rating decision granting service connection was clearly and unmistakably erroneous, and only after certain procedural safeguards have been met. 38 C.F.R. § 3.105 (d) (2009); Daniels v. Gober, 10 Vet. App. 474 (1997). Specifically, when severance of service connection is warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. 38 C.F.R. § 3.105 (d); see also Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). The Board will not discuss whether there were any procedural deficiencies in the RO’s severance of service connection, as neither the Veteran nor his representative have asserted any such deficiencies, and as the record shows that the RO complied with the provisions of 38 C.F.R. § 3.105 (d). See e.g., RO’s August 11, 2011 rating decision proposing severance of service connection; RO’s August 19, 2011 notification letter; transcript of Veteran’s hearing before a Decision Review Officer, held in November 2011. The United States Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 3.105 (d) places the same burden of proof on VA when it seeks to sever service connection as 38 C.F.R. § 3.105(a) places upon a claimant seeking to have an unfavorable previous determination overturned. Baughman. Clear and unmistakable error is a very specific and rare kind of error; it is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different, but for the error. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). To determine whether clear and unmistakable error is present under 38 C.F.R. § 3.105 (a) in a prior determination, either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated), or the statutory or regulatory provisions extant at the time were incorrectly applied; the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994). However, while the same standards apply in a determination of clear and unmistakable error in a final decision under section 3.105(a) and a determination as to whether a decision granting service connection was the product of clear and unmistakable error for the purpose of severing service connection under section 3.105(d), section 3.105(d) does not limit the reviewable evidence to that which was before the RO in making its initial service connection award. Daniels. Because 38 C.F.R. § 3.105 (d) specifically states that “[a] change in diagnosis may be accepted as a basis for severance,” the regulation clearly contemplates the consideration of evidence acquired after the original granting of service connection. Thus, “[i]f the Court were to conclude that...a service-connection award can be terminated pursuant to § 3.105(d) only on the basis of the law and record as it existed at the time of the award thereof, VA would be placed in the impossible situation of being forever bound to a prior determination regardless of changes in the law or later developments in the factual record.” Daniels. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303 (d). Service connection may be granted, on a secondary basis, for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. The Veteran is currently service connected for prostate cancer, posttraumatic stress disorder, diabetes mellitus, type 2, peripheral neuropathy of the lower extremities, bilateral atrophy of the testes, bilateral hearing loss, tinnitus, rib biopsy scar, residual prostatectomy scar, and erectile dysfunction. The relevant administrative history of this claim is as follows: In June 2002, the RO granted service connection for prostate cancer, status post radical retropubic prostatectomy, based upon presumed exposure to Agent Orange during service in the Republic of Vietnam. See 38 U.S.C. § 1116 (f); 38 C.F.R. §§ 3.307 (a)(6), 3.309 (e). In October 2008, the RO denied a claim for compensation for a fractured rib with painful scar from biopsy under 38 U.S.C. § 1151. In October 2009, the RO granted service connection for a fractured rib (a specific rib was not specified), and painful scar from biopsy. In relevant part, the RO stated: Service connection for fractured rib has been established as directly related to military service. We found evidence from your private treatment records that you do have had a broken rib, right tenth rib fracture. The physician stated that you had pleuritic pain in 2007 and you underwent an extensive work up at that time and the physician found you had a fracture in the right tenth rib. This supported by X-ray evidence. Based on the evidence of record, service connection for fractured rib is granted with an evaluation of 0 percent effective June 22, 2007, the date of your claim. In November 2011, the RO severed service connection for a fractured rib, after finding that the grant of service connection for a fractured rib in its September 23, 2009 rating decision was clearly and unmistakably erroneous. The RO stated that the cause of the original fracture was not known. A medical opinion concluded that the fracture was more likely than not due to stress on an area weakened by the previous fracture. A review of the Veteran’s service treatment records does not show any evidence of a fractured rib or similar injury at any time during service. The RO stated that as there was no evidence of metastatic cancer in the rib and there is no evidence of a fracture or injury in service, there is no basis on which to establish service connection for the fracture. The medical evidence of record includes the Veteran’s service treatment records, which do not include any complaints, findings, or diagnoses shown to be relevant. The Veteran’s separation examination report, dated in June 1969, showed that his lungs and chest were clinically evaluated as normal, and that a chest X-ray was normal. Following separation from service, the medical evidence includes VA progress notes, and private treatment reports from Pulmonary Services, the Charleston Area Medical Center (CAMC), and T.J., M.D. This evidence shows that the Veteran essentially received ongoing treatment for respiratory symptoms beginning in 1988, with diagnoses that included bronchitis, asthma, and COPD (chronic obstructive pulmonary disease), with associated hospitalizations in 1997 and 1998. He also received treatment for symptoms of inflammatory bowel disease, with diagnoses that included ulcerative colitis and Crohn’s disease, that were treated with medications that included Prednisone. Prior to the February 2007 biopsy at issue, his treatment for his respiratory symptoms included inhaled steroids, with medication that included Prednisone, Flovent, Combivent, Advair, Flovent, Serevent, and Azathioprine. In July 2001, biopsies revealed prostatic adenocarcinoma. In August 2001, the Veteran underwent a radical retropubic prostatectomy and pelvic lymphadenectomy at CAMC. A February 2003 bone scan includes an impression noting a focal area of increased uptake seen involving the anterior portion of the right tenth rib which probably relates to an old healed fracture. Correlative rib films were recommended for-further evaluation. CAMC reports show that in January 2007, the Veteran complained of about a one-month history of progressively worsening right flank pain that started after he sneezed. A chest X-ray shows that an acute right rib fracture was not found. There was right-sided pleural thickening that had not changed since an August 2001 study. An underlying pleural-based mass was suspected. No rib destruction was identified. In February 2007, the Veteran underwent a biopsy of a right rib. His pain had not responded to medication and it was aggravated by coughing and breathing. He stated that he heard a “pop” after sneezing, and that he thought that he fractured his rib at that time. He reported that a private physician (Dr. T.J.) told him that a CT scan showed that he had a fatty tumor in his right lung. It was noted that a CT of the liver was suspicious for metastatic lesions, and that there may be a possible metastatic lesion of the right tenth rib that was causing his pain. A bone scan was positive on the right tenth rib, with a notation of “nonspecific uptake.” An X-ray showed a right tenth rib fracture. Following workup, there was a notation indicating that it was unclear if the Veteran’s right tenth rib fracture was a routine finding or that it was evidence of pathology. A biopsy was recommended. There was an assessment of “fracture rule out a pathological fracture[s] secondary to metastatic lesion from prostate cancer.” The preoperative diagnosis was right tenth rib fracture rule out metastatic tumor/rib lesion. On February 20, 2007, the Veteran underwent an excisional biopsy of a portion of the right tenth rib at CAMC. The postoperative diagnosis was fracture tenth rib on the right side, rule out metastatic disease, history of prostate cancer. The day after the Veteran’s biopsy, a consultation (“evaluation for COPD”) notes that during surgery his oxygen saturation had dropped into the 30s, and that he had saturation in the low 90s that morning, after responding to Narcan. Thereafter, a pathology report notes that there was no morphologic evidence of metastatic tumor seen. A statement of Dr. T.J., dated in November 2008, and received by VA in August 2009, shows that he states that the Veteran had pleuritic pain and that he underwent extensive workup. He was found to have a fracture of his right tenth rib. Dr. T.J. also submitted a February 2007 CAMC X-ray report for the Veteran that notes a right tenth rib fracture and “old rib fracture deformities in the upper ribcage with adjacent pleural thickening.” A VA bones examination report, dated in November 2010, notes that a current X-ray of the ribs and chest did not show a convincing rib abnormality. The impression was “no acute disease.” The diagnosis was status post right tenth rib fracture, with a notation of an associated right sixth rib fracture. The examiner stated the following: It is not clear why the Veteran is service connected for a fractured rib. The Veteran first became aware of a fracture of the right rib when he sneezed in February 2007, resulting in the fracture of that rib. Because he was well known to have had adenocarcinoma of the prostate that was diagnosed in 2001 and treated with a radical prostatectomy, the spontaneous fracture of the rib raised the specter of a pathological fracture, i.e., a fracture secondary to bony metastasis from the prostatic carcinoma. To resolve this question, the Veteran underwent an open biopsy of the fracture rib in February 2007 and no prostatic cancer was found. As to the cause of the spontaneous fracture, it is of note that a February 2003 bone scan showed an area of increased uptake in the right sixth rib (the radiologist’s report incorrectly indicated that it was the tenth rib). The uptake was interpreted as representing an old healed fracture. The Veteran’s fracture in 2007, which occurred with sneezing, was more likely than not due to the stress on an area weakened by the previous fracture. The cause of the original fracture noted in the February 2003 bone scan is not known. What is known is that the fracture in 2007, which was biopsied, was not due to his prostatic carcinoma. Therefore, the reason for it being service connected is not clear. A VA scars disability benefits questionnaire (DBQ), dated in February 2015, notes a history of a biopsy of the right sixth rib. The relevant diagnosis was scar, right lower rib cage, from sixth rib biopsy. A VA bones DBQ, dated in February 2015, notes a history of a biopsy of the right sixth rib in 2002, in order to determine if this was an area of metastasis from prostate surgery. The diagnosis was old rib fracture with rib biopsy, residual pain, and scar. A VA medical opinion, dated in April 2017, shows that the examiner concluded that the Veteran’s right rib fracture is less likely than not proximately due to, or the result of, a service-connected condition. The examiner explained the following: The Veteran is service connected for a painful scar due to his fractured rib. A February 2015 VA examination report showed that he has scar at his right lower rib cage due to a sixth rib biopsy. A review of his records shows that he was diagnosed with COPD. A January 2007 chest X-ray showed a pleural-based mass with pleural thickening. A chest CT revealed a fatty tumor. The Veteran was referred to a hematology and oncology specialist due to right rib pain following a sneezing episode in February 2007. An open pleural biopsy was recommended; a pleural biopsy note is not of record. The Veteran has stated that he nearly died during his surgery and that he has a knot on his side. A June 2012 chest X-ray showed no evidence of aggravation of a fracture rib or any other kind of aggravation. In November 2017, the Board requested an independent medical opinion. See 38 C.F.R. § 20.901 (d). The Board noted that the Veteran alleged that his treatments for cancer weakened his ribs, resulting in fractures, or, in the alternative, that his February 2007 biopsy related to cancer aggravated a prior rib fracture. The Board requested an opinion as to whether it is at least as likely as not that the Veteran’s rib fracture was caused or aggravated by his service-connected prostate cancer, to include treatment for the cancer, the surgical biopsy of the rib, or the treatments associated with such biopsy. In February 2020, an independent medical opinion (IMO) was obtained from C.D., M.D. Dr. C.D. concluded that it is more likely than not that the Veteran’s right rib fracture was not caused by, or is in any way connected to, his prostate cancer diagnosis or treatment. Dr. C.D. explained the following: In January 2007, the Veteran reported a hard sneeze during an emergency room (ER) visit. That is the subjective cause of his right tenth rib fracture. The Veteran was noted to have pain and bruising at that time. Several subsequent visits to the ER eventually led to a chest X-ray and a bone scan. These studies documented the right tenth rib fracture. They also showed several old upper rib fractures. Subsequent visits have shown right and left rib pain from a four-wheeler injury in 2010. Final confirmation on the biopsy report in February 2007 revealed no metastatic prostate disease. Therefore, none of the treatments for prostate cancer in July 2001 and a prostatectomy in August 2001, or the prostate cancer itself, would have played a role in the multiple subsequent rib fractures that the Veteran has sustained. There is a question of an old rib fracture seen on a surveillance bone scan in February 2003, which noted a questionable old rib fracture. That report had some ambiguity in it as to which rib was involved (sixth vs. tenth). This finding would have no bearing on the rib fracture in question, as it was read as “old” at that time, and it may have been a different rib. As previously noted, old rib fractures were seen in the February 2007 X-ray. The Veteran has multiple documents reflecting steroid use for his inflammatory bowel disease and occasionally for his asthma. Chronic steroid use would have a much more likely role in contributing to osteopenia or osteoporosis, which would place the Veteran at a higher risk for fracture. The records show that it is more likely than not that the decision to proceed with the biopsy was influenced by the prior diagnosis of prostate cancer. However, the right tenth rib fracture itself was in no way connected to the prostate cancer. Furthermore, the Veteran’s current symptoms over his right ribs and flank are as likely as not related to the biopsy itself. Diabetes and steroid use both would prolong healing time and are risk factors for fracture non-union, which could lead to persistent rib and flank symptoms. Dr. C.D. stated that in general, his review of the records showed that this Veteran received excellent care. In April 2020, the Board remanded the claim in order to obtain the Veteran’s records from the Social Security Administration (SSA). In July 2020, the Veteran’s SSA records were obtained. This evidence shows that in August 2011, the SSA determined that the Veteran was disabled as of May 2011, with a primary diagnosis of osteoarthrosis and allied disorders, and a secondary diagnosis of COPD. An adult disability report (SSA Form 3368) shows that the Veteran provided history of treatment for conditions that included stomach problems, ulcerative colitis, lung problems, and asthma, and that he reported that his medications included Prednisone, Alprazolam, Azathioprine, Fluoxetine, Advair, and Mesalamine. See also July 2011 Internal Medicine Examination (noting a history of treatment for emphysema, COPD, bronchial asthma, and ulcerative colitis, treated with the reported medications). The Veteran’s right tenth rib fracture was shown in imaging studies dated prior to his February 2007 biopsy, which was performed at a private health care facility (CAMC). The Veteran has made clear that the issue on appeal does not involve a claim for compensation under 38 U.S.C. § 1151. The Veteran’s claim is based on the argument that VA treatment for his service-connected prostate cancer weakened his ribs, resulting in fractures, or, in the alternative, that his February 2007 biopsy (which was necessitated by his service-connected prostate cancer) aggravated a prior rib fracture. The Board finds that the claim must be denied. There is no competent evidence of record to show that he has a rib fracture that was caused or aggravated by treatment for his service-connected prostate cancer. The only competent opinions of record are the November 2010 and April 2017 VA opinions, and the November 2017 IMO. These opinions all weigh against the claim. In particular, the IMO is considered to be highly probative evidence against the claim. The Board may adopt a medical expert’s opinion for its reasons and bases where the expert has fairly considered the medical evidence of record. Wray v. Brown, 7 Vet. App. 488 (1995). The IMO was specifically generated with a view towards resolution of the issue under review, and it shows that Dr. C.D. thoroughly reviewed the Veteran’s claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Dr. C.D. provided a detailed rationale for his conclusion that the Veteran’s right tenth rib fracture itself was “in no way connected to the prostate cancer,” and that it is more likely than not that the Veteran’s right rib fracture was not caused by, or is in any way connected to, his prostate cancer diagnosis or treatment. Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the Board finds that the RO’s October 2009 rating decision granting service connection for a rib fracture was based on clear and unmistakable error, that the RO’s severance of service connection for a rib fracture in November 2011 was proper, and that the claim must be denied. The Board has considered that Dr. C.D. stated that diabetes (for which service connection is in effect) would prolong healing time and that this could lead to persistent rib and flank symptoms. VA has conceded that the Veteran’s biopsy was necessary to rule out metastatic cancer, for which he was at high risk due to his service-connected prostate cancer. Service connection is in effect for his rib biopsy scar. The Veteran is therefore being compensated for his biopsy symptoms. See 38 C.F.R. § 3.310. To the extent that Dr. C.D. states that diabetes (for which service connection is in effect) and steroid use (due to nonservice-connected inflammatory bowel disease and/or asthma) are “risk factors for fracture non-union,” a medical opinion should be viewed in its full context, and not characterized solely by the medical professional’s choice of words. Acevedo v. Shinseki, 25 Vet. App. 286, 293-94 (2012). As discussed supra, the Veteran’s treatment reports show that he was provided with steroids over a period of years for control of nonservice-connected respiratory and gastrointestinal disabilities. Dr. C.D. stated that chronic steroid use would have a “much more likely role in contributing to osteopenia or osteoporosis, which would place the Veteran at a higher risk for fracture.” Accordingly, Dr. C.D.’s statement, that a combination of service-connected and nonservice connected conditions are “risk factors” for fracture, is not a conclusion that the Veteran’s diabetes caused or aggravated his rib fracture, and it is not a basis for a grant of the claim. Reasonable doubt does not include resort to speculation or remote possibility. See 38 C.F.R. § 3.102; Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). The Board has considered an article submitted by the Veteran in September 2014. The article notes that sometimes broken bones can heal so thoroughly within a few months that even an X-ray can’t determine the original fracture line. Bones are constantly changing, with cells called osteoclasts breaking down and being replaced. Bone healing is often divided into four phases involving blood clotting, transformation of a hematoma into a soft callus, transformation of the soft callus into a bone callus, and replacement of the bone callus with harder, compact bone. A number of complications can arise due to the severity of the break, which may be characterized as compound, impacted, comminuted, and greenstick fractures, and the patient’s age. Treatment may include immobilization, traction, surgery, and rehabilitation. The Veteran’s medical article is insufficient to link the claimed disability to a service-connected disability. The U.S. Court of Appeals for Veterans Claims has held that a medical article or treatise “can provide important support when combined with an opinion of a medical professional” if it discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least “plausible causality” based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999). However, in the present case, the article submitted by the Veteran was not accompanied by the opinion of any medical expert. Moreover, VA already obtained a medical opinion of record to address the etiology of the Veteran’s rib disability, and the medical professional who provided the opinion is presumed to be familiar with the available medical literature on the subject matter. As such, the mere presentation of a medical treatise does not trigger any duty to obtain an additional medical opinion. The article does not discuss any generic relationships with at least plausible causality between a service-connected disability and the development of the claimed, demonstrated rib condition on appeal. Thus, the Board assigns no probative value to the article, as it does not reasonably indicate that there may be an etiological relationship between a service-connected disability and the Veteran’s claimed rib condition. With regard to the Veteran’s own contentions, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, it falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although the Veteran is competent to report the presence of rib symptoms, the claimed disability is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that specific findings are needed to properly assess and diagnose this disorder, and determine its etiology. Id. The issue on appeal is based on the contention that restoration of service connection for a fractured rib is warranted. The Veteran’s medical records have been discussed. The Board has determined that the November 2020 IMO is highly probative evidence that weighs against the claim. The Board acknowledges that the standard for severing service connection is that the rating decision granting service connection was clearly and unmistakably erroneous. Here, the medical opinions of record have tended to use language such as less likely than not, rather than clear and unmistakable. However, a reading of the opinions in their totality leaves no doubt that the medical professionals providing them felt that there was no relationship between the Veteran’s rib fracture and any service connected disability. As such, taken in their totality, the uncontroverted medical opinions constitute clear and unmistakable evidence that service connection was in error. As noted, the biopsy was necessary to rule out the spread of prostate cancer to the rib, and for that reason, the scar was, and remains, service connected. However, the biopsy successfully ruled out prostate cancer as the cause of the fractured rib. Therefore, the rib fracture itself should not be service connected. Given the foregoing, the Board finds that the medical evidence outweighs the Veteran’s contentions to the effect that he has the claimed condition due to a service-connected disability. Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997). MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S.E., 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.