Citation Nr: 1031204 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 08-31 140 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for residuals of shell fragment wound to the face. 2. Entitlement to service connection for residuals of shell fragment wound to the neck. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Poulson, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1965 to November 1970. He was stationed in Vietnam from February 1969 to August 1969 and was awarded two Purple Heart Medals. This matter is before the Board of Veterans' Appeals (Board) from a decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In April 1990, the Veteran filed a claim for service connection for "shrapnel wounds." In a November 1990 statement, the Veteran clarified that he was seeking service connection for shrapnel wounds to the face, arms, hip, and left knee. In a December 1990 rating decision, the RO granted service connection for shell fragment wounds of the right forearm and awarded a noncompensable evaluation. The RO did not develop the Veteran's other shell fragment claims. In an April 2008 rating decision, the RO declined to reopen a previously denied claim for service connection for a right ear condition, denied service connection for shrapnel wounds to the upper back/neck and face, and denied an increased rating for the Veteran's service-connected PTSD. The Veteran perfected the shrapnel wound claims with the filing of an October 2008 substantive appeal, and clarified that he was seeking service connection for shrapnel wounds to the face and neck only. The issue of service connection for residuals of shell fragment wound to the neck has been recharacterized to more accurately reflect the Veteran's claims. The Veteran did not request a hearing on this matter. The issues of service connection for shell fragment wound scar to the face, bilateral hearing loss, tinnitus, prostate cancer, an enlarged heart, and a back disability have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran engaged in combat while on active duty in Vietnam. 2. The preponderance of the evidence shows that the Veteran suffered a shell fragment wound to his face during combat in Vietnam. 3. It is as likely as not that the Veteran has a retained piece of shrapnel in his neck from one of two explosions that occurred during combat in Vietnam. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of shell fragment wound to the face are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). 2. The criteria for service connection for residuals of shell fragment wound to the neck are met. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The service connection claims are being granted in full. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and need not be discussed. II. Analysis In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A § 1110. "Service connection" basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. A veteran may also establish service connection if all of the evidence, including that pertaining to service, shows that a disease first diagnosed after service was incurred in service. 38 C.F.R. § 3.303. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Personnel records clearly show that the Veteran sustained a shell fragment wound to his left temple in May 1968. Inexplicably, the April 2008 rating decision denied residuals of shrapnel in the face despite having these records in the claim file at the time of the rating decision. Medical records submitted by the prison where the Veteran is currently incarcerated include a May 2004 X- ray of the Veteran's cervical spine. The X-ray shows metallic fragments in the soft tissues of the mandible. Thus, the evidence demonstrates an injury in service, and a current diagnosis of the same condition noted in service. In the May 2008 notice of disagreement, the Veteran stated that the metallic fragments in his face and neck cause numbness and burning. The Veteran is competent to testify as to the continuity and chronicity of problems concerning his face and/or jaw, which serves to establish a nexus between the two. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, service connection for residuals of shell fragment wound to the face is warranted. Personnel records also show that the Veteran sustained a shell fragment wound to his right arm in October 1968, for which he is already service-connected. There is no evidence in either the STRs or the personnel records of a shell fragment wound to the Veteran's neck. Personnel records establish that the Veteran received two Purple Heart Medals for the left temple and right arm injuries. If an injury or disease is alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, consistent with the circumstances, conditions, or hardships of combat, even if there is no official record of the incident. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2009). Since the Purple Hearts reflect that the Veteran engaged in combat with an enemy force, the Board will presume that he sustained a shell fragment wound to his neck while on active duty. In this regard, 38 U.S.C.A. § 1154(b) provides a relaxed evidentiary standard of proof with respect to the issue of an in-service injury for any injury alleged to have been incurred in combat. See Collette v. Brown, 82 F.3d 389 (1996). However, the Veteran must still demonstrate the existence of a shell fragment wound to the neck. The record establishes such a finding. The May 2004 X-ray discussed above also shows metallic fragments in the soft tissues of the neck. The November 1970 discharge examination report contains no findings of shrapnel wounds or shell fragment scars. But since there is no evidence that the Veteran sustained a shrapnel wound injury after service, one can only conclude that the retained metal fragment in his neck is from one of the two explosions that occurred during combat in Vietnam. Consequently, resolving all reasonable doubt in his favor, the Board finds that the Veteran has a current disability related to an in-service injury. 38 C.F.R. § 3.102. See also Ashley v. Brown, 6 Vet. App. 52, 59 (1993), citing 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (under the "benefit- of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue). Thus, service connection for residuals of shell fragment wound to the neck is granted. ORDER Entitlement to service connection for residuals of shell fragment wound to the face is granted, subject to the rules and payment of monetary benefits. Entitlement to service connection for residuals of shell fragment wound to the neck is granted, subject to the rules and payment of monetary benefits. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs