Citation Nr: 1031083 Decision Date: 08/18/10 Archive Date: 08/24/10 DOCKET NO. 04-44 181 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to service connection for neuropathy of the left upper extremity, to include as secondary to service-connected diabetes mellitus and/or service-connected residuals of a shell fragment wound of the back. 2. Entitlement to an increased disability rating for service- connected residuals of a shell fragment wound of the back, to include a scar, currently evaluated 10 percent disabling. 3. Entitlement to a compensable disability rating for service- connected residuals of a shell fragment wound of the buttocks, to include a scar. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD V. Chiappetta, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 1968 to November 1970. Service in Vietnam and receipt of the Combat Infantryman Badge is indicated by the record. This matter is before the Board of Veterans' Appeals (the Board) on appeal of a May 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. Neuropathy claim The RO denied the Veteran's service-connection claim for neuropathy of the left upper extremity in the above-referenced May 2004 rating decision. The Veteran disagreed and perfected an appeal as to that issue. The Board has remanded this issue twice, for procedural development in June 2007 and evidentiary development in June 2009. Such was achieved and the Veteran's claims file has been returned to the Board for further appellate review. Shell fragment claims In its May 2004 rating decision, the RO also denied the Veteran's claims for increased disability ratings for his service-connected residuals of shell fragment wounds, to include scars, of the back and buttocks. The Veteran disagreed and perfected an appeal as to these two issues as well. In June 2007, the Board remanded these claims for additional procedural development. After such was achieved, the Board denied both of the Veteran's increased rating claims in June 2009. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (the Court). In a March 2010 Order, the Court adopted a March 2010 Joint Motion for Partial Remand, and vacated the Board's June 2009 denial as to these two increased rating claims. In essence, the Joint Motion indicated that the Board failed to fulfill its duty to assist when it did not obtain a medical examination and opinion to determine whether the Veteran has muscle damage resulting from his shell fragment wounds. See the March 2010 Joint Motion, page 1. The Joint Motion noted that all other issues decided or remanded by the Board in its June 2009 decision [to include, the Veteran's ulnar neuropathy claim currently on appeal] were to remain undisturbed. Id. The Veteran's file has been returned to the Board. The Board subsequently sent the Veteran a letter in June 2010, notifying him that he may submit any additional argument or evidence in relation to his claims. In response, the Veteran indicated that he had no additional evidence to submit. See the Veteran's 90- Day Letter Response Form, received by the Board on July 1, 2010. Issues not on appeal In June 2009, the Board denied the Veteran's increased rating claim for diabetes mellitus, as well as his request to reopen his service-connection claim for a bilateral leg disability. The Veteran appealed these issues to the Court. However, in its March 2010 Order, the Court dismissed all of the Veteran's appeals other than those relating to the Veteran's shell fragment wound residuals. Accordingly, the Board's decisions as to the Veteran's diabetes and leg disability claims are final. See 38 C.F.R. § 20.1100 (2009). Remanded issues Per the instructions of the March 2010 Joint Motion, the Veteran's increased rating claims for residuals of shell fragment wounds to the back and buttocks are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The evidence of record does not support a finding that the Veteran's current left arm neuropathy is related to his military service. 2. The evidence of record does not indicate that a nexus exists between the Veteran's service-connected diabetes mellitus and his currently diagnosed left arm neuropathy. 3. The evidence of record does not indicate that a nexus exists between the Veteran's service-connected residuals of a shell fragment wound of the back and his currently diagnosed left arm neuropathy. CONCLUSIONS OF LAW 1. The Veteran's left arm neuropathy was not incurred in or aggravated by the Veteran's active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2009). 2. The Veteran's left arm neuropathy is not caused or aggravated by his service-connected diabetes mellitus. 38 C.F.R. §3.310 (2009). 3. The Veteran's left arm neuropathy is not caused or aggravated by his service-connected residuals of a shell fragment wound of the back. 38 C.F.R. §3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Stegall concerns As noted above, the Board remanded the Veteran's service- connection claim for neuropathy of the left upper extremity in both June 2007 and June 2009. In June 2007, the Board instructed the agency of original jurisdiction (AOJ) to furnish the Veteran with notice in compliance with the Veterans Claims Assistance Act of 2000 (VCAA), as well as with specific notice of the information and evidence needed to substantiate a service- connection claim on a secondary basis. Such was achieved via a letter from the RO to the Veteran dated July 20, 2007, and the Veteran's claim was readjudicated in an April 2009 supplemental statement of the case (SSOC). In June 2009, the Board instructed the AOJ to schedule the Veteran for a VA examination to determine the etiology of his left upper extremity neuropathy. The RO was then to readjudicate the Veteran's claim. The Veteran appeared for a VA neurological examination in July 2009. The report of examination has been incorporated in the Veteran's claims folder, and the VA examiner's medical opinions were substantially responsive to the Board's June 2009 inquiries. The Appeals Management Center (AMC) readjudicated the Veteran's claim in an April 2010 SSOC. Thus, the Board's remand instructions have been fully complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2009), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time," or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the case at hand, the record reflects that the originating agency provided the Veteran with the notice required under the VCAA by letters mailed in January 2004, July 2007, and February 2008. To the extent that the Veteran may not have been provided with complete notice until after the initial adjudication, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. Following the provision of the required notice and the completion of all indicated development of the record, the RO readjudicated the Veteran's claim in April 2009 and April 2010. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) [a timing error may be cured by a new VCAA notification followed by a readjudication of the claim]. There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. The Board also notes that the Veteran's service treatment records, and post-service VA and private treatment records have been associated with his claims file. Neither the Veteran nor his representative has identified any outstanding evidence, to include any other medical records, that could be obtained to substantiate his service-connection claim. The Board is also unaware of any such outstanding evidence. With respect to the VA examinations conducted in conjunction with this appeal, the Board observes that the findings contained therein are more than adequate to adjudicate the Veteran's neuropathy claim. The Veteran was provided with a VA diabetes examination in September 2003, and a VA neurological examination in July 2009. The examination reports reflect that each examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate examination, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions as to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303 (2007). In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of this issue has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the claim were insignificant and nonprejudicial to the Veteran. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claim. See 38 C.F.R. § 3.103 (2009). He has retained the services of a representative, and he declined an opportunity for a personal hearing. Accordingly, the Board will address the merits of the Veteran's neuropathy claim. Relevant law and regulations In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2009). In order to establish service connection for the claimed disorder on a direct basis, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service- connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). During the pendency of this claim, 38 C.F.R. § 3.310 was amended, effective October 10, 2006. The amendments to this section are not liberalizing. Therefore, the Board will apply the former version of the regulation. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service- connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. Every reasonable doubt shall be resolved in favor of the veteran. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). "Satisfactory evidence" is credible evidence. Collette v. Brown, 82 F.3d 389, 392 (1996). Such credible, consistent evidence may be rebutted only by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis In this case, the Veteran contends that he injured his left arm during service and subsequently developed numbness in his left arm and hand. He asserts that his currently diagnosed left ulnar neuropathy is directly related to this in-service injury. In the alternative, the Veteran asserts that his neuropathy was caused or aggravated by his service-connected diabetes mellitus and/or by his service-connected residuals of a shell fragment wound of the back. The Board will address each assertion in turn. As noted above, to establish service connection for the claimed disorder on a direct basis, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the two. See Hickson, 12 Vet. App. at 253. In this case, it is undisputed that the Veteran currently has left ulnar neuropathy. See the July 2009 VA examiner's report, page 2. Hickson element (1) is therefore satisfied. With respect to crucial Hickson element (2), in-service disease or injury, the Board will separately address disease and injury. Concerning in-service disease, the Veteran's service treatment records do not reflect that the Veteran complained of, received treatment for, or was diagnosed with any neurological disease affecting his left arm during his two years of active duty service. The Veteran's November 1970 separation examination report pertinently indicated a "normal" clinical evaluation of the Veteran's upper extremities as well as his neurological system, and the Veteran specifically noted on the report that his medical condition was "excellent." See the Veteran's November 9, 1970 Report of Medical Examination. Accordingly, in-service neurological disease of the left arm is not demonstrated. Concerning in-service injury, the Veteran has contended that he injured his arm in the Army in August 1970. More specifically, the Veteran stated that he "developed a large hematoma" with an infection, that was later examined in-service when he was wounded by shell fragments, but "nothing was done for it." See the Veteran's January 2004 Statement in Support of Claim. A February 2004 private treatment record includes the Veteran's self-report that he sustained an injury in 1970 when he fell on to his elbow. See the Veteran's February 6, 2004 PCC Ambulatory Encounter Record. In essence, the Veteran contends that his current left arm neuropathy was caused by this in-service injury. However, for the reasons and bases discussed immediately below, the Board finds the Veteran's assertion that he injured his left arm during service not credible. Despite his assertion in 2004 that he received treatment for a left arm injury during service, the Veteran's service treatment records crucially do not include any reports documenting such treatment. Significantly, there is no in-service diagnosis of a hematoma or acknowledgment of any infection affecting the Veteran's left arm. Furthermore, the Veteran specifically stated upon separation in November 1970 that he was in excellent medical condition, just three months following his claimed elbow injury. See the Veteran's November 9, 1970 Report of Medical Examination. Additionally, at the July 2009 VA examination, the Veteran specifically contradicted his 2004 assertions, indicating that he "does not recall having any injuries to either arm either on active duty or following." The Veteran recalled having some kind of infection in one arm that had to be drained, but could not remember which arm, and noted that there were "no residuals from that." The Veteran also noted that when he was wounded by shrapnel in his back and buttocks in service, the shrapnel was removed, and he recalls no other problems when he went back to his unit. Finally, the Veteran specifically indicated that his numbness and tingling of the left arm began in the mid-1980s. Pertinently, the July 2009 VA examiner concluded the examination report by stating that the Veteran "today denies having any injuries to the left arm on active duty." See the July 2009 VA examiner's report, pages 1 and 2. Although the Veteran is competent to testify as to observable events or symptomatology [see Barr v. Nicholson, 21 Vet. App. 303 (2007)], the Board finds the Veteran's 2004 assertions that he injured his left arm during service not credible. The Board is aware of the holding in Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006), which notes that the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. However, Buchanan also states that, as the finder of fact, the Board is permitted to determine whether lay evidence is credible "in and of itself, i.e., because of possible bias, conflicting statements, etc." Id. at 1337. The Board may also "weigh the absence of contemporaneous medical evidence against the lay evidence of record." Id. In this case, the record contains evidence in the form of conflicting lay statements that, in addition to the lack of corroborating contemporaneous medical evidence, weigh heavily against the Veteran's prior assertion that he injured his left arm in service. In light of the fact that the Veteran's claimed in-service treatment from the Army is not reflected in his service records, and because the Veteran himself has recently denied any left arm injury in fact occurred in service and that his symptomatology actually began in the mid-1980s [approximately 15 years following his separation from active duty service], the Board finds that the evidence of record as a whole weighs against a finding that an in-service left arm injury actually occurred. The Board acknowledges that the Veteran is in fact a combat veteran, and has received the Combat Infantryman Badge. As noted above, for combat veterans, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Crucially, in this case, the Veteran has never asserted that he incurred his alleged left arm injury during combat, and there is no objective evidence of record to suggest as much. Indeed, the Veteran has recently denied that an in-service left arm injury even occurred. Therefore, the presumptions afforded combat veterans under 38 U.S.C.A. § 1154 are not for application in this case. Thus, the preponderance of the evidence is against a finding that the Veteran incurred a disease or injury of his left arm during his active duty service from 1968 to 1970. Therefore, Hickson element (2) remains unsatisfied, and the Veteran's claim for service-connection on a direct basis fails for this reason alone. The Board notes in passing that based on his service in Vietnam, the Veteran's exposure to Agent Orange is presumed. See 38 U.S.C.A. § 1116(f) (West 2002). To the extent that such exposure is considered an in-service "injury," the Board notes that the Veteran's left ulnar neuropathy is not a disability that is presumptively linked to herbicide exposure under 38 C.F.R. § 3.309(e). Indeed, only "acute or subacute" peripheral neuropathy are presumed to be associated with exposure to herbicide agents under § 3.309(e), and such must be manifested to a degree of 10 percent or more within a year after the last date on which a veteran was exposed to an herbicide agent for the presumption to apply. 38 C.F.R. § 3.307(a)(6)(ii). Note 2 of § 3.309(e) specifically defines acute and subacute peripheral neuropathy as "transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset." By his own statements to the July 2009 VA examiner, the Veteran indicated that his numbness and tingling in his left forearm began in the mid-1980s [approximately 15 years following his separation from service], and that such has never resolved. See the July 2009 VA examiner's report, page 1. There is no credible evidence of record demonstrating that the Veteran's current left ulnar neuropathy is acute or subacute, or that it had its onset within one year of the date the Veteran left Vietnam, November 8, 1970. 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). Accordingly, service- connection for left arm neuropathy is not warranted based on the presumptive provisions of § 3.307 or § 3.309. The Board adds that no evidence of record suggests that the Veteran's presumed Agent Orange exposure directly caused his left arm neuropathy, and the Veteran does not so contend. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). As noted above, the Veteran has alternatively asserted that his left arm neuropathy was caused or aggravated by his service- connected diabetes and/or his service-connected residuals of a shell fragment wound to the back. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin, 11 Vet. App. at 512. The Board has already established that the Veteran indeed has a current diagnosis of left ulnar neuropathy. The record additionally demonstrates that the Veteran is currently service- connected for diabetes mellitus, and for residuals of a shell fragment wound to the back. Accordingly, Wallin elements (1) and (2) are satisfied. With respect to crucial Wallin element (3), nexus or relationship, the preponderance of the evidence of record does not reflect that any relationship exists between the Veteran's left arm neuropathy and his service-connected diabetes and/or his shell fragment residuals of the back. Concerning diabetes, the Veteran underwent a VA diabetes examination in June 2001. The examiner indicated that the Veteran had numbness in the ulnar distribution of the left hand that would come and go. This examiner made no opinion however as to whether this numbness was due to the Veteran's diabetes. See the June 2001 VA examiner's report. Subsequently, in September 2003, another VA examiner diagnosed the Veteran with mild ulnar neuropathy of the left hand. Upon review of the Veteran's medical history and upon physical examination of the Veteran's arm, the September 2003 VA examiner pertinently opined that the Veteran's left hand neuropathy was "not related to the diabetes, since this is an otherwise common clinical condition." See the September 2003 VA examiner's report. A private medical statement from R.E., a physician assistant- certified (PA-C), noted that the Veteran was examined in February 2004 and was found to have "diabetic neuropathy in his left lower arm ulnar nerve distribution secondary to progression of a soft tissue injury that occurred in 1976." See the February 2004 statement from R.E. Another record dated in February 2004 also identified "diabetic neuropathy status post left elbow injury to ulnar nerve (1976)." See the Veteran's February 6, 2004 PCC Ambulatory Encounter Record. These reports appear to be self-contradictory. On the one hand, the respective physicians diagnose the Veteran with diabetic neuropathy, and on the other, they attribute the neuropathy to a post-service injury in 1976, not to diabetes. In an effort to sort out this confusion, the Board instructed the AOJ to afford the Veteran another examination. See the Board's June 2009 decision, pages 25 and 26. This examination took place in July 2009. Upon reviewing the claims folder and examining the Veteran, the July 2009 VA examiner pertinently opined that it is "less likely that [the Veteran's] left ulnar neuropathy is caused or aggravated by the diabetes mellitus." The examiner based her conclusions in part on the fact that the Veteran himself stated that his neuropathy began prior to the onset of his diabetes [see the Veteran's December 9, 2003 Statement in Support of Claim (indicating he had lack of feeling in his left hand before he had diabetes)]. Further, the examiner opined that the neuropathy was not aggravated by diabetes because the Veteran's numbness has not changed through the years, and because the Veteran's arm presented "no evidence of muscle atrophy nor any other findings or symptoms of any kind of diabetic neuropathy." See the July 2009 VA examiner's report, page 2. The Board places great weight of probative value on the opinion of the July 2009 VA examiner. Indeed, the examiner's evaluation is the most comprehensive report of record as she considered the Veteran's entire history, including the relevant evaluations and statements that were previously made, and she was able to examine the Veteran. It does not appear that any previous examiner had access to more information and evidence than the July 2009 VA examiner. Additionally, the examiner cited to specific aspects of the record to support her conclusions. The July 2009 VA examiner's report ultimately contains the most persuasive opinion on the matter, and it has support in the record, to include the prior negative nexus opinion of the September 2003 VA examiner, discussed above. The only evidence demonstrating any connection between the Veteran's left arm neuropathy and his diabetes are the self- contradictory opinions noted above, indicating that the Veteran had diabetic neuropathy caused by a post-service injury. These opinions are afforded no weight of probative value as they are wholly inconclusive, and are unsupported by any clinical rationale. The Court has held on several occasions that medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See generally Obert v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); see also Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) [the failure of the health care provider to provide a basis for his/her opinion goes to the weight or credibility of the evidence]; Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."] Crucially, the July 2009 VA examiner also addressed the Veteran's assertion that his service-connected residuals of a shell fracture wound to the back caused or aggravated his left arm neuropathy. Upon review of the claims file and physical examination, the July 2009 VA examiner pertinently opined that the Veteran's shrapnel wound of the lumbar region "did not cause or aggravate the ulnar neuropathy of the left upper extremity." The examiner reasoned that the shrapnel wound was "anatomically completely removed from the ulnar nerve of the left arm and therefore could not cause or aggravate any arm symptoms." See the July 2009 VA examiner's report, page 3. There is no medical evidence of record contrary to the opinion of the July 2009 VA examiner. The Veteran has had ample opportunity to secure competent medical evidence in his favor and submit the same to VA in support of his secondary service-connection claims. He has not done so. See 38 U.S.C.A. § 5107(a) (West 2002) [it is a claimant's responsibility to support a claim for VA benefits]. The Board has fully considered the Veteran's lay statements. The questions involved in this case, however, involve the etiology of a disability-namely, whether the Veteran's left arm neuropathy was caused or aggravated by diabetes or by residuals of shell fragments to the back. These questions require opinions from persons with medical expertise, as the answers cannot be ascertained through lay observation. Neither the Veteran nor his representative has been shown to possess the requisite medical training or credentials needed to render a competent opinion as to these questions. Accordingly, the lay opinions attributing the Veteran's neuropathy to his service-connected disabilities do not constitute competent evidence and lack probative value. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The Board accordingly finds that the preponderance of the evidence of record is against a finding that the Veteran's left arm neuropathy was caused or aggravated by his service-connected diabetes or his service-connected residuals of a shell fragment wound of the back. Therefore, Wallin element (3) remains unsatisfied, and the Veteran's claims for service-connection on a secondary basis fail for this reason alone. In sum, for the reasons and bases explained above, the Board finds that service-connection for neuropathy of the left upper extremity is not warranted on both a direct and secondary basis. The benefit sought on appeal is denied. ORDER Service connection for neuropathy of the left upper extremity is denied. REMAND As was noted in the Introduction, the March 2010 Joint Motion for Partial Remand (Joint Motion) indicated that the Board failed to fulfill its duty to assist when it did not obtain a medical examination and opinion to determine whether the Veteran has muscle damage resulting from his shell fragment wounds. The Joint Motion directed that a new examination be scheduled. See the March 2009 Joint Motion, page 2. In particular, the Joint Motion noted that he examiner must specifically consider and discuss the April 21, 1986, radiographic evidence stating that the Veteran had metallic fragments in his soft tissue, conduct a current examination of the Veteran, and undertake current X-ray study of any retained fragment including those that may have migrated over time. The Joint Motion also directs the examiner to further opine as to whether it is at least as likely as not that the Veteran has any muscle injury due to the residuals of his shell fragment wounds including any residuals resulting from any remaining retained metallic fragments. If the examiner determines that the Appellant has any muscle injury as a result of his shell fragment wounds, the examiner must provide an opinion as to the severity of the injury, the specific muscle groups or groups affected by the track of the shrapnel, and the most specific muscle groups or groups affected by the residuals of the shell fragment wounds including all of those in which metal fragments may be retained. Per the instructions of the March 2010 Joint Motion, a VA examination must be scheduled for the Veteran. Accordingly, the case is REMANDED to the Veterans Benefits Administration (VBA) for the following action: 1. VBA should contact the Veteran and request that he identify any additional medical treatment he has received for his service-connected residuals of shell fragment wounds of the back and buttocks, to include scars since November 2007. VBA should take appropriate steps to secure copies of any such treatment reports identified by the Veteran which are not in the record on appeal. Efforts to obtain these records should also be memorialized in the Veteran's VA claims folder. 2. VBA should then schedule the Veteran for a VA examination to determine the current nature and severity of his shell fracture residuals of the back and buttocks, to include scars. In particular, the examiner should review the Veteran's claims folder, and in light of the Veteran's medical history and current clinical findings should render an opinion as to whether it is as likely as not that the Veteran has any muscle injury due to the residuals of his shell fragment wounds, including as due to any retained metallic fragments that remain in the Veteran's body. Per the instruction of the Court, the examiner should specifically consider and discuss the April 21, 1986 radiographic evidence of record demonstrating that the Veteran had metallic fragments in his soft tissue. X-rays should be taken, as metallic fragments may have migrated over time. The examiner should provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran has any current muscle disability resulting from his shell fragment wounds of the back and buttock. If the examiner determines that the Veteran has a muscle injury or injuries as a result of his shell fragment residuals, the examiner should provide an opinion as to the severity of each injury, the specific muscle group or groups affected by the track of the shrapnel, and the specific muscle group or groups affected by the residuals of the shell fragment wounds, including all those in which metal fragments may be retained. A report should be prepared and associated with the Veteran's VA claims folder. The examiner is requested to provide the basis for all opinions reached. 3. After undertaking any additional development which it deems to be necessary, VBA should then readjudicate the Veteran's increased rating claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC) and given an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs