Citation Nr: 0809957	
Decision Date: 03/26/08    Archive Date: 04/09/08

DOCKET NO.  05-06 529	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Whether new and material evidence has been submitted to 
reopen a claim of entitlement to service connection for 
residuals of frostbite to both feet.

2.  Whether new and material evidence has been submitted to 
reopen a claim of entitlement to service connection for 
residuals of shell fragment wound to the right leg.

3.  Entitlement to service connection for a left shoulder 
disorder.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Mark Vichich, Associate Counsel


INTRODUCTION

The veteran served on active duty from November 1942 to 
November 1946 and from September 1948 to June 1952.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a January 2005 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Waco, Texas.  

The veteran testified before the undersigned Veterans Law 
Judge at a travel board hearing in January 2008; a transcript 
is of record. 

In January 2008, the veteran filed a motion to advance on 
docket.  In February 2008, the Board granted the veteran's 
motion.


FINDINGS OF FACT

1.  The veteran has been notified of the evidence necessary 
to substantiate his claims, and all relevant evidence 
necessary for an equitable disposition of this appeal has 
been obtained.  

2.  By an unappealed decision dated in January 1992, the RO 
denied the veteran's claim of entitlement to service 
connection for residuals of frostbite to both feet.  

3.  Evidence submitted subsequent to the January 1992 
decision is cumulative and redundant of the evidence of 
record at the time of the last prior final denial of the 
claim and does not raise a reasonable possibility of 
substantiating the claim.  	

4.  By an unappealed decision dated in April 2000, the RO 
denied the veteran's claim of entitlement to service 
connection for residuals of shell fragment wound to the right 
leg. 	

5.  Evidence submitted subsequent to the April 2000 decision 
is cumulative and redundant of the evidence of record at the 
time of the last prior final denial and does not raise a 
reasonable possibility of substantiating the claim.  		

6.  The evidence does not corroborate the veteran's account 
of sustaining a shoulder injury in service.


CONCLUSIONS OF LAW

1.  The rating decision of January 1992 is final.  38 
U.S.C.A. § 4005(c) (West 1988); 38 C.F.R. §§ 3.104, 19.129, 
19.192 (1990).  

2.  The veteran has not submitted new and material evidence 
that warrants reopening his claim for entitlement to service 
connection for residuals of frostbite to both feet.  38 
U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007).   

3.  The rating decision of April 2000 is final.  38 U.S.C.A. 
§ 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 
(1999).  

4.  The veteran has not submitted new and material evidence 
that warrants reopening his claim for entitlement to service 
connection for residuals of shell fragment wound to the right 
leg.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) 
(2007).   

5.  Degenerative joint disease and rotator cuff tendinitis of 
the left shoulder were not incurred during active service and 
degenerative joint disease may not presumed to have been 
incurred therein.  38 U.S.C.A. § 1110, 1112, 1131 (West 2002 
& Supp. 2007); 38 C.F.R § 3.303, 3.307, 3.309 (2007).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA) imposes 
obligations on VA with respect to its duty to notify and 
assist a claimant in developing a claim.  38 U.S.C.A. §§ 
5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 
(2007).    Under the VCAA, upon receipt of a complete or 
substantially complete application for benefits, VA is 
required to notify the veteran and his representative, if 
any, of any information and medical or lay evidence necessary 
to substantiate the claim.  The United States Court of 
Appeals for Veterans Claims (hereinafter the Court) has held 
that these notice requirements apply to all five elements of 
a service connection claim, which include: (1) veteran 
status; (2) existence of a disability; (3) a connection 
between the veteran's service and the disability; (4) degree 
of disability; and (5) effective date of the disability.  See 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

VA law and regulations also indicate that part of notifying a 
claimant of what is needed to substantiate a claim includes 
notification as to what information and evidence VA will seek 
to provide and what evidence the claimant is expected to 
provide.  Further, VA must ask the claimant to provide any 
evidence in her or his possession that pertains to the claim.  
38 U.S.C.A. § 5103 (West 2002 & Supp. 2007); 38 C.F.R. §§ 
3.159(a)-(c) (2007).  VCAA notice must be provided to a 
claimant before the initial unfavorable agency of original 
jurisdiction (AOJ) decision on a claim.  Pelegrini v. 
Principi, 18 Vet. App. 112, 120 (2004).    

When the veteran is attempting to reopen a previously 
disallowed claim, VA must notify the veteran of the evidence 
and information that is necessary to reopen the claim and the 
evidence and information that is necessary to establish 
entitlement to the underlying claim for the benefits sought.  
Kent v. Nicholson, 20 Vet. App. 1, 9 (2006).  This requires 
VA to look at the bases for the prior denial and to respond 
with a letter describing what evidence would be necessary to 
substantiate that element or elements required to establish 
service connection that were found insufficient in the 
previous denial.  Id. at 10.

The Board finds that the requirements of the VCAA have been 
met and that VA has no further duty to notify prior to Board 
adjudication.  Prior to initial adjudication of the veteran's 
claim, in correspondence dated in October 2004, the RO 
advised the veteran of what the evidence must show to 
establish entitlement to service-connected compensation 
benefits for his bilateral foot, right knee, and left 
shoulder claims currently on appeal.  The RO advised the 
veteran of VA's duties under the VCAA and the delegation of 
responsibility between VA and the veteran in procuring the 
evidence relevant to the claims, including which portion of 
the information and evidence necessary to substantiate the 
claims was to be provided by the veteran and which portion VA 
would attempt to obtain on behalf of the veteran.  The RO 
also specifically requested that the veteran send any 
evidence in his possession that pertained to the claims.  

As pertaining to the residuals of frostbite to both feet and 
residuals of shell fragment wound to the right leg claims, 
the Appeals Management Center (AMC) informed the veteran of 
what types of evidence qualified as "new" and "material" 
evidence, and informed him of the reason why these claims 
were previously denied.  See Kent v. Nicholson, 20 Vet. App. 
1, 9 (2006).

The RO provided the veteran with another VCAA notice letter 
in September 2007.  In that correspondence, the RO addressed 
the veteran's right knee disability, to include the leg.  The 
content of this notice was essentially the same as the 
October 2004 correspondence except that the RO included 
notice of the disability rating and effective date elements 
in compliance with Dingess/Hartman, 19 Vet. App. 473 (2006).  

The veteran was not provided with fully compliant notice with 
respect to his right knee/leg disability claim prior to the 
initial AOJ adjudication of that claim.  There is also no 
evidence the veteran was ever notified of the disability 
rating and effective date elements with respect to his 
bilateral foot and left shoulder claims in compliance with 
Dingess/Hartman, 19 Vet. App. 473 (2006).  Despite these 
deficiencies, the Board finds no prejudice.  See Sanders v. 
Nicholson, 487 F.3d 881, 891 (Fed. Cir. 2007) (holding that 
VCAA notice errors are presumed to be prejudicial and it is 
VA's duty to rebut the presumption).  For reasons discussed 
more fully below, the Board concludes that the preponderance 
of the evidence is against the appellant's claim for service 
connection for a left shoulder disorder.  The Board also 
finds that new and material evidence has not been submitted 
to reopen the claims for right knee/leg and bilateral foot 
disabilities.  Thus, no disability rating or effective date 
will be assigned for either disability and failure to notify 
the veteran of these elements has resulted in no prejudice.  

Finally, the Board also finds that the RO has satisfied VA's 
duty to assist.  The RO has obtained the veteran's service 
medical records and VA Medical Center (VAMC) treatment 
records.  The RO also provided the veteran with a VA 
examination for each disability claimed on appeal.  The 
veteran has not made the RO or the Board aware of any other 
evidence relevant to his appeal and no further development is 
required to comply with the duty to assist the veteran in 
developing the facts pertinent to his claims.  Accordingly, 
the Board will proceed with appellate review.

II.  New and Material Evidence

        Legal Criteria

A veteran may reopen a finally adjudicated claim by 
submitting new and material evidence.  38 U.S.C.A. § 5108 
(2002); 38 C.F.R. § 3.156(a) (2007).  New evidence means 
existing evidence not previously submitted to agency 
decisionmakers.  38 C.F.R. § 3.156(a) (2007).  Material 
evidence means existing evidence that, by itself or when 
considered with previous evidence of record, relates to an 
unestablished fact necessary to substantiate the claim.  Id.  
New and material evidence can be neither cumulative nor 
redundant of the evidence of record at the time of the last 
prior final denial of the claim sought to be reopened, and 
must raise a reasonable possibility of substantiating the 
claim.  Id.  

When determining whether the claim should be reopened, the 
credibility of the newly submitted evidence is presumed.  
Justus v. Principi, 3 Vet. App. 510, 512-13 (1992).  In order 
for evidence to be sufficient to reopen a previously 
disallowed claim, it must be both new and material.  If the 
evidence is new, but not material, the inquiry ends and the 
claim cannot be reopened.  Smith v. West, 12 Vet. App. 312, 
314 (1999).  If it is determined that new and material 
evidence has been submitted, the claim must be reopened.  VA 
may then proceed to evaluate the merits of the claim on the 
basis of all evidence of record, but only after ensuring that 
the duty to assist the veteran in developing the facts 
necessary for his claim has been satisfied.

Service connection will be granted if it is shown that a 
veteran has a disability resulting from an injury or disease 
contracted in the line of duty, or for aggravation of a 
preexisting injury suffered or disease contracted in active 
military service.  38 U.S.C.A. § 1110 (West 2002 & Supp. 
2007); 38 C.F.R. § 3.303 (2007).  Service connection may also 
be granted for any disease diagnosed after discharge, when 
all the evidence, including that pertinent to service, 
establishes that the disease was incurred in service.  38 
C.F.R. § 3.303(d) (2007).  "Generally, to prove service 
connection, a claimant must submit (1) medical evidence of a 
current disability, (2) medical evidence, or in certain 
circumstances lay testimony, of in-service incurrence or 
aggravation of an injury or disease, and (3) medical evidence 
of a nexus between the current disability and the in-service 
disease or injury."  Pond v. West, 12 Vet. App. 341, 346 
(1999).  Where the determinative issue involves a medical 
diagnosis, competent medical evidence is required.  This 
burden typically cannot be met by lay testimony because 
laypersons are not competent to offer medical opinions.  
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992).

        

Procedural History

A review of the record shows that the veteran's initial claim 
for service-connected benefits for residuals of frostbite to 
both feet was denied in a March 1972 rating decision.  The 
veteran appealed that decision to the Board.  In August 1972, 
the Board denied the veteran's claim and it became final.  38 
U.S.C.A. § 4005(b) (West 1970); 38 C.F.R. § 19.104 (1972).  

The veteran again filed a claim for service-connected 
benefits for residuals of frostbite to both feet in March 
1991.  The RO denied that claim in a rating decision dated in 
January 1992.  In correspondence dated in February 1992, the 
RO informed the veteran of the denial and advised him of his 
procedural and appellate rights.  The veteran did not appeal 
that denial and it became final.  38 U.S.C.A. § 4005(c) (West 
1988); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1990).  

In December 1999, the veteran filed a claim for service-
connected compensation benefits for residuals of shell 
fragment wound to the right leg.  The RO denied that claim in 
a rating decision dated in April 2000.  The RO notified the 
veteran of the denial and advised him of his appellate rights 
in a letter dated in May 2000.  The veteran failed to appeal 
that decision and it became final.  38 U.S.C.A. § 7105(c) 
(West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1999).  

The veteran filed the present claims in September 2004.  
Those claims were denied in a rating decision dated in 
January 2005.  The veteran appealed within the applicable 
time limit and the issues are now before the Board.   

In the Board decision of August 1972, the Board explained 
that service connection for residuals of frostbite of the 
feet was being denied because service medical records showed 
no treatment for frostbite and a recent VA examination failed 
to show evidence of manifestation of residuals of frostbite.   

In the RO decision of January 1992, the RO explained that the 
claim for residuals of frostbite to both feet was being 
denied because his service medical records showed no 
treatment for frostbite and that new and material evidence 
had not been submitted since the August 1972 decision.

In the April 2000 rating decision, the RO explained service 
connection for burns of the right lower leg was being denied 
because service medical records were negative for diagnosis, 
treatment or other findings of such a condition and because 
the veteran had not submitted any medical evidence showing 
burns to the right lower leg related to military service.  

        Evidence and Analysis

Prior to the last final denial in January 1992, the evidence 
pertaining to the claim of entitlement to service connection 
for residuals of frostbite to both feet included service 
medical records and a VA examination report.  The service 
medical records revealed that the veteran received treatment 
for an ingrown toenail in the right foot and cellulitis in 
the right toe secondary to the ingrown toenail.  The date of 
treatment was in September 1946 and the place of treatment 
was in Sapporo, Japan.  The service medical records showed no 
treatment or diagnosis of any other foot condition.   

In his claim for compensation benefits, dated in February 
1972, the veteran claimed he incurred frostbite of the feet 
while participating in the Battle of the Bulge in Europe in 
December 1944.  

The veteran underwent a VA medical examination in May 1972.  
In a report of that examination, the examining physician 
stated there was little or no evidence of arterial 
insufficiency and no gross evidence of old vascular injury.  
The physician noted possible gout.

Evidence pertaining to the claim of entitlement to service 
connection for residuals of frostbite to both feet received 
since the last final denial in January 1992 included VAMC 
treatment records; written statements submitted by the 
veteran; a September 2005 VA cold injury protocol examination 
report with addendum; and a transcript of his travel board 
hearing from January 2008. 

At his travel board hearing, he testified that he was exposed 
to cold weather in December 1944 while participating in the 
Battle of the Bulge.  The veteran recalled being unable to 
start a fire because such an action would have made it easier 
for the enemy to detect him and his comrades.  The veteran 
claimed to have spent a month or longer on the front line and 
that during that time, his feet became discolored due to the 
cold.  

In the VA examination report, Dr. A.D. discussed the 
veteran's subjective complaints and current objective 
examination findings and diagnosed remote frostbite, both 
feet with residual.  Dr. A.D. also noted that diabetic 
peripheral sensory neuropathy may contribute to his current 
symptoms as well.  In an addendum to the VA examination 
report, dated in January 2006, Dr. A.D. reported that he had 
reviewed the claims file and that it did not show any 
documentation of frostbite of the feet.  Thus, Dr. A.D. 
concluded, frostbite-related residuals in the feet could not 
be attributed to active duty service.  

The Board finds that new and material evidence has not been 
submitted with respect to the claim for residuals of 
frostbite to both feet.  Prior to the last final denial of 
the claim, the medical evidence included no findings that the 
veteran sustained a cold-exposure injury in service or 
currently exhibited any frostbite residuals.  Although the 
veteran provided additional details of his recollections of 
sustaining frostbite in service, he has submitted no new 
evidence in support of his recollections.  As for the VA 
examination report with addendum, it does not relate any 
current examination findings to active duty service.  Thus, 
although it is "new" evidence, it is not material and does 
not raise a reasonable possibility of substantiating the 
claim.  

Prior to the April 2000 decision denying the veteran's claim 
of entitlement to service connection for residuals of shell 
fragment wound to the right leg, the evidence pertaining to 
this claim included the veteran's service medical records, 
his DD Form 214s documenting his three periods of service, 
and statements in support of his claim.

In a statement dated in December 1999, the veteran asserted 
he had sustained burns to the lower right leg.  The service 
medical records were entirely negative for complaints, 
treatment, or diagnoses of any injury to the right knee or 
leg.  The veteran's DD Form 214s did not document that the 
veteran had earned any awards or medals indicative of combat.

Evidence pertaining to the residuals of shell fragment wound 
to the right leg received since the last final denial in 
April 2000 included VAMC treatment records; written 
statements submitted by the veteran; a VA examination report, 
dated in September 2005; and his travel board hearing 
testimony. 

In a statement dated in September 2004, the veteran 
maintained he injured his right knee and leg in a shrapnel 
injury in December 1944.  The veteran recalled staying at a 
Mobile Army Surgical Hospital (MASH) unit for two and a half 
days and being awarded a Purple Heart because of this.  

At a hearing before a Decision Review Officer held at the RO 
in May 2005, the veteran testified that in December 1944, he 
was in Bastogne, France.  It was here, the veteran claimed, 
that he sustained a shrapnel wound to the right leg requiring 
him to stay in a MASH unit for two and a half days.  The 
veteran stated that he would never forget that because he got 
a fresh change of uniforms and extra socks.  He also 
testified that in addition to earning a Purple Heart Medal, 
he also earned the Combat Infantry Badge (CIB).  

In the VA examination report dated in September 2005, Dr. 
A.D. related that the veteran reported sustaining a shrapnel 
injury to the right knee in 1945 resulting in a scar.  On 
examination, Dr. A.D. detected a scar, slightly distal to the 
patella in the right knee area anteriorly.  The scar measured 
one and one half inches by one half inch.  Dr. A.D. found the 
scar to be soft and non-adherent to the skin.  Dr. A.D. 
described the scar as superficial and without inflammation, 
edema, keloid formation, ulceration, induration, or 
elevation.  Dr. A.D. diagnosed right knee scar, healed with 
minimal residual pain.  Dr. A.D. also noted a one-inch by 
one-quarter-inch scar on the right ankle without significant 
symptoms or abnormality.  

In an addendum to the VA examination report, which was dated 
in January 2006, Dr. A.D. stated that he had reviewed the 
claims file but found no documentation of a shrapnel injury 
to the right knee or leg.  Therefore, Dr. A.D. concluded, he 
could not provide an opinion without speculating.  

The Board declines to reopen the residuals of shell fragment 
wound to the right leg claim because the evidence submitted 
since the last final denial in April 2000 does not satisfy 
the standard for new and material evidence found at 38 C.F.R. 
§ 3.156(a) (2007).  The evidence of record prior to the last 
final denial in April 2000 failed to show that the veteran 
sustained an injury in service.  The only evidence received 
since that time included the VA examination report noting 
findings of scars on the right knee and ankle.  This evidence 
does not relate to an unestablished fact necessary to 
substantiate the claim; namely, that the veteran sustained 
the claimed injury in service.  The veteran provided 
statements at his travel board hearing to that effect, but 
such statements were not corroborated by any evidence, such 
as a DD Form 214 documenting receipt of either the Purple 
Heart of CIB.  The additionally submitted evidence is 
cumulative and redundant and the claim must not be reopened.

III.  Service Connection

The veteran is claiming service connection for a left 
shoulder disability that he alleges resulted from injuries 
sustained in combat.  At the veteran's travel board hearing, 
he testified that he currently suffered from residuals of a 
left shoulder injury he sustained in one of the three combat 
parachute jumps he made during the war.  Regarding the 
circumstances of the initial injury, the veteran recalled 
that he was taught to roll onto his side when he landed when 
parachuting, but that sometimes he landed on his shoulder.  
The veteran claimed that this is what happened to him one 
time in Holland in 1945, resulting in an injury to his left 
shoulder.  The veteran stated that medics wrapped his 
shoulder in the field.  The veteran testified that he 
currently received treatment at the VAMC for shoulder pain 
that had existed since this incident.  

In the case of any veteran who engaged in combat with the 
enemy in active service with a military, naval, or air 
organization of the United States during a period of war, 
campaign, or expedition, the Secretary shall accept as 
sufficient proof of service-connection of any disease or 
injury alleged to have incurred in or aggravated by such 
service satisfactory lay or other evidence of service 
incurrence or aggravation of such injury or disease, if 
consistent with circumstances, conditions, or hardships of 
such service, notwithstanding the fact that there is no 
official record of such incurrence or aggravation in such 
service, and, to that end, shall resolve every reasonable 
doubt in favor of the veteran.  Service-connection of such 
injury or disease may be rebutted by clear and convincing 
evidence to the contrary.  38 U.S.C.A. § 1154(b) (2002); 38 
C.F.R. § 3.304(d) (2007).  

The phrase "engaged in combat with the enemy" requires that 
the veteran have personally participated in events 
constituting an actual fight or encounter with military foe 
or hostile unit or instrumentality.  VAOPGCPREC 12-99, 65 
Fed. Reg. 6256-6258 (2000).  When there is an approximate 
balance of positive and negative evidence regarding whether 
the veteran engaged in combat with the enemy, the Secretary 
shall give the benefit of the doubt to the claimant.  38 
U.S.C.A. 5107(b) (West 2002), VAOPGCPREC 12-99, 65 Fed. Reg. 
6256-6258 (2000).  

The Board first considers whether the evidence supports 
finding that the veteran engaged in combat with the enemy.  
At a hearing before a Decision Review Officer held at the RO 
in May 2005, the veteran testified that he landed in England 
in 1944.  The veteran stated that on June 6, 1944, he left 
England aboard a glider, landed on continental Europe, and 
took part in D-day and the Invasion of Normandy.  In a 
previous claim for compensation benefits, dated in February 
1972, the veteran had also claimed he participated in the 
Battle of the Bulge in Europe in December 1944.  

The veteran also reported injuring his right leg in combat.  
Regarding the circumstances of that injury, the veteran 
remembered getting into the back of a truck in Bastogne and 
that the truck hit a mine.  The veteran stated that he 
suffered injury to the lower right kneecap, lost 
consciousness, and received treatment as an outpatient.  The 
veteran also claimed he was awarded a Purple Heart as a 
result of this incident.  The veteran remembered that an 
officer came to the MASH unit and pinned a Purple Heart on 
him and recorded information from his dog tags.  The veteran 
stated that this incident occurred in December 1944.  The 
veteran stated that he would never forget that because he got 
a fresh change of uniforms and extra socks.  

At the veteran's travel board hearing, he testified that in 
addition to earning a Purple Heart Medal, he also earned the 
CIB.  The veteran claimed that his efforts to obtain 
documentation of this were unsuccessful because VA had told 
him his records were lost in the St. Louis fire, which 
destroyed many service records.  

The veteran's claims file included three DD Form 214's 
documenting his three periods of active duty.  According to 
these documents, the veteran served in the U.S. Army from 
November 1942 to October 1945, October 1945 to November 1946, 
and September 1948 to June 1952.  

According to the first DD Form 214, he served in the 326th 
Glider Infantry and had foreign service from January 1945 to 
August 1945.  The veteran departed the continental United 
States on January 26, 1945 and arrived at his destination on 
February 8, 1945 according to this document.  The veteran 
returned to the United States on August 27, 1945.  The total 
length of foreign service during this period of active duty 
service was listed as 7 months and 2 days.  This document 
also showed that he earned the American Theater Campaign 
Medal, EAME (European-African-Middle Eastern) Campaign Medal 
with 1 Bronze Star, Good Conduct Medal, and 1 Overseas 
Service Bar.  

According to the second DD Form 214, he served in the 187th 
Glider Infantry and had foreign service from April 1946 to 
November 1946.  This document also showed that he earned the 
Parachutist's Badge, World War II Victory Medal, and Army of 
Occupation Medal.  According to an undated Separation 
Qualification Record from the Army of the United States, the 
veteran served with the 187th Glider Infantry Regiment in 
Japan some time between November 1942 and November 1946.  The 
Separation Qualification Record also showed that the veteran 
completed parachute training at Fort Benning, Georgia and 
made 11 jumps during that training.  

According to the third DD Form 214, the veteran served in the 
501st Replacement Company, 1st Armored Division and had no 
foreign service during that period.  

Upon reviewing this evidence, the Board concludes that the 
veteran did not engage in combat with the enemy is and not 
entitled to the presumptions in 1154(b).  There are too many 
discrepancies between the veteran's recollections of his 
service and what is found in his service records to 
corroborate his account.  For example, he claimed 
participation in both the Invasion of Normandy in June 1944 
and the Battle of the Bulge in December 1944, yet his DD Form 
214 for this period does not place him in Europe until 
February 8, 1945.  This is inconsistent with his 
participation in either event.  Also weighing against finding 
that the veteran engaged in combat with the enemy is the lack 
of any documentation that the veteran earned either the 
Purple Heart Medal or the CIB as he had claimed.  Although 
the veteran earned numerous awards and badges, none is 
indicative of combat as either the Purple Heart Medical or 
CIB.  
	
Considering the merits of the left shoulder disability claim 
without applying 1154(b), the Board finds the claim must be 
denied for several reasons.  First, the veteran's service 
medical records were negative for diagnosis, treatment, or 
complaint of a shoulder injury.  Second, the competent 
medical evidence included no opinion linking a current left 
shoulder disorder to an incident in service.  In a VA 
examination report, dated in September 2005, and an addendum 
to that report, dated in January 2006, Dr. A.D. discussed 
current examination findings and the veteran's subjective 
complaints.  Dr. A.D. diagnosed remote left shoulder injury 
with residual, degenerative joint disease, and rotator cuff 
tendinitis.  In the addendum, Dr. A.D. stated that he could 
not provide a nexus opinion without resorting to speculation 
because the veteran's claims file failed to document a left 
shoulder injury.  Third, nearly four decades past from the 
time of the veteran's discharge to the time he filed his 
service connection claim.  All of these factors weigh heavily 
against the veteran's claim.   

Service connection for arthritis (degenerative joint disease) 
may be also presumed if the disease becomes manifest to a 
degree of 10 percent or more within one year from the date of 
separation from service, even though there is no evidence of 
such disease during the period of service.  38 U.S.C.A. 
§§1101, 1112, 1113 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.307, 3.309 (2007).  The Board has also considered 
whether this presumption applies but finds that it does not.  
The evidence does not show, and the veteran does not contend, 
that his arthritis became manifest to a degree of 10 percent 
or more within one year from the date of separation from 
service.  

The Board has considered the possibility that the veteran's 
service medical records are incomplete because they may have 
been damaged in a fire at the National Personnel Records 
Center (NPRC) in St. Louis, Missouri in 1973.  There are a 
few references in the claims file to this effect.  In a 
letter dated in July 1991, the RO notified the veteran that 
his service medical records were presumed to be "fire 
related."  In response to the RO's October 2004 request for 
personnel records, the NPRC notified the RO that the 
veteran's personnel records were "fire related" and 
provided the veteran's DD 214s instead.
 
In cases where the veteran's service records are unavailable 
through no fault of the claimant, there is a heightened 
obligation to explain findings and conclusions and to 
carefully consider the benefit-of-the-doubt doctrine under 38 
U.S.C. § 5107(b).  O'Hare v. Derwinski, 1 Vet. App. 365, 367 
(1991).  

Upon reviewing the claims file, it does not appear that the 
service medical records are incomplete.  The veteran's 
service medical records currently on file include enlistment 
examination reports dated in November 1942 and September 
1948, and separation examination reports dated in October 
1945, November 1946, and June 1952.  The separation 
examination reports correspond to each of his service 
periods.  Also among the records were progress notes showing 
treatment for cellulitis and an ingrown toenail.  Although 
the service medical records do not include a re-enlistment 
examination report for the veteran's second period of active 
duty service, this period began the day after his discharge 
from his first period of active service.  Thus, he already 
had undergone an examination the previous day and it is 
possible the veteran did not undergo another examination.  
The absence of an enlistment examination report does not 
suggest the veteran's records are incomplete.  Moreover, the 
St. Louis fire occurred in July 1973, yet the Waco, Texas VA 
RO received the above-referenced service medical records in 
March 1972.  That the RO received what appear to be 
substantially complete service medical records prior to the 
fire suggests that no service medical records were left 
behind to be destroyed.  In short, the evidence suggests that 
all service medical records are currently in the claims file 
and the Board does not have a heightened obligation to 
explain findings and conclusions and to carefully consider 
the benefit-of-the-doubt doctrine.  O'Hare, 1 Vet. App. at 
367 (1991).  

As the preponderance of the evidence is against the claim, 
the benefit of the doubt doctrine is not applicable, and the 
claim must be denied.  38 U.S.C.A. 5107(b) (2002); Gilbert v. 
Derwinski, 1 Vet. App. 49, 58 (1990). 


ORDER

1.  New and material evidence having not been received, 
entitlement to service connection for residuals of frostbite 
to both feet is denied.

2.  New and material evidence having not been received, 
entitlement to service connection for residuals of shell 
fragment wound to the right leg is denied.

3.  Service connection for a left shoulder disorder is 
denied.


____________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs