Citation Nr: 1124243 Decision Date: 06/24/11 Archive Date: 06/29/11 DOCKET NO. 06-06 045 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for residuals from a stab wound. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Diliberto, Associate Counsel INTRODUCTION The Veteran had active service from November 1970 to May 1972. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from July 2005 and July 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, that denied the benefit sought on appeal. The Veteran appealed that decision and the case was referred to the Board for appellate review. In January 2010 the Veteran failed to appear at a scheduled hearing before the Board. Without good cause having been shown for the failure to appear the request for the hearing is deemed withdrawn. 38 C.F.R. § 20.704(d) (2010). FINDINGS OF FACT 1. The Veteran does not have lung residuals from an in-service stab wound. 2. The competent medical demonstrates that the Veteran has a chest scar that is causally related to his military service. CONCLUSIONS OF LAW 1. A lung disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2010). 2. Resolving reasonable doubt in his favor, the Veteran has a residual chest scar secondary to a stab-wound incurred during active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). The notification obligation in this case was met by way of letters from the RO to the Veteran dated April 2005, March 2006, February 2008 and May 2010. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances of this case. In addition, the Veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal and have not argued that any errors or deficiencies in the accomplishment of the duty to notify or the duty to assist have prejudiced the Veteran in the adjudication of his appeal. The Veteran was afforded a VA examination during the pendency of the appeal in September 2010. The report from that examination reflect that the examiner reviewed the Veteran's medical records, recorded his current complaints, conducted an appropriate physical examination and rendered diagnoses and opinions consistent with the remainder of the evidence of record. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additional examination is unnecessary, and the Board finds that the RO has satisfied the duty to notify and the duty to assist. Accordingly, it will proceed to a discussion of the merits of the Veteran's appeal. The Veteran has claimed entitlement to service connection for residuals from a stab wound incurred in service. Service connection will be granted for a disability resulting from an injury or disease incurred in or aggravated by active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. If there is no showing of a resulting chronic disorder during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, the record must contain (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of injury or disease, and (3) evidence of a nexus or relationship between the current disability and the in-service disease or injury. Coburn v. Nicholson, 10 Vet. App. 427 (2006); Disabled American Veterans v. Secretary of Veterans Affairs, 419 F. 3d 1317 (Fed. Cir. 2005). If the Veteran fails to demonstrate any one element, denial of service connection will result. 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). The Veteran first claimed entitlement to service connection for residuals of a stab wound in March 2005, at which time he asserted he had a residuals of a collapsed left lung. A July 2005 rating decision denied entitlement to service connection for residuals of a collapsed left lung. In March 2006 the Veteran again claimed entitlement to service connection for a collapsed left lung. A July 2006 rating decision again denied that claim. The Veteran submitted a Notice of Disagreement (NOD) in August 2006. The RO issued a Statement of the Case (SOC) in August 2007, characterizing the issue as "residuals, collapsed left lung, due to stab wound." In September 2007 the Veteran submitted a statement which the RO accepted as a Substantive Appeal. The Veteran's claim first came before the Board in March 2010, at which time it was remanded for further development. The development requested in that remand has been completed, and no further action is necessary to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). As noted above, the Veteran's primary assertion has been that he has residuals of a collapsed lung due to a stab wound he incurred in service. The evidence of record in this case includes service treatment records, private treatment records, VA treatment records, a VA examination report and both written and oral statements from the Veteran and other individuals. The Veteran's service treatment records do not show specific treatment for a stab wound. However, those records do show that the Veteran described having a "history of shortness of breath, with cough and exercise" at his military entrance examination in November 1970. In February 1971 a medical provider indicated that the Veteran had reported a history of chest and back pains from a previous history of a collapsed lung at Long Beach Naval Hospital. The Veteran described a history of a stab wound causing his left lung to collapse. The examiner noted that the left lung was stable and partially clear. In October 1971 an examiner noted pain in the Veteran's chest for the previous six months beneath the left rib cage with radiation to the back episodically. The examiner also noted possible adhesions to the lung after trauma in 1960. In January 1972 the Veteran reported having left-sided chest pain. The examiner noted that the Veteran's lungs were clear. The impression was probable irritation from cold weather due to an old pneumothorax injury. A chest x-ray conducted in January 1972 noted findings of "old pleural reaction along the lower half of the left chest, on its lateral aspect, associated with some blunting of the left costophrenic angle, which is probably due to old pleural reaction... no active disease." The Veteran's separation examination in April 1972 indicates pain in the chest with cold weather due to a knife wound 1.5 years ago. X-rays were negative. The examiner noted cold intolerance as a result of pleural scarring from old chest trauma. The Veteran was provided with exemption from prolonged exposure to cold. In September 2007 the Veteran submitted a statement signed by his siblings indicating that they visited him at Maywood Hospital and at the Naval Hospital in Long Beach, California, after the Veteran was stabbed and suffered from a collapsed lung while on leave following eight weeks of training. VA treatment records show ongoing treatment for viral syndrome, conjunctivitis and chest wall pain. A chest x-ray from June 2007 indicated no change from the previous study, which showed complete opacification of the right lung with the heart shifted into the right chest. The left lung was clear. In addition, the Veteran was hospitalized in June 2007 for iron deficiency anemia with atrial fibrillation. In March 2008 the Veteran testified at a hearing before a Decision Review Officer. During that hearing he more broadly requested entitlement to service connection for residuals of a stab wound which he stated he sustained during active duty. He reported that in 1971 he was on authorized leave after eight weeks of training when he was jumped by five individuals and stabbed. He reported having been stationed at Fort Ord and having been treated at Maywood Hospital and at the Naval Hospital in Long Beach, California, for a punctured left lung. In September 2010 the Veteran was afforded a VA examination in support his claim. During that examination the Veteran reiterated his statements regarding his in-service stab wound, stating that he recalled being treated with a chest tube. The Veteran indicated that the scars from that injury are a source of discomfort upon deep inspiration, but that they do not involve tissue loss, skin breakdown or restricted movement. The examiner noted that the Veteran was diagnosed with lung cancer in 1994 and that he underwent a right pneumonectomy later that year. Physical examination revealed that the Veteran's lungs were clear to auscultation and percussion on the left and decreased on the right secondary to the aforementioned pneumonectomy. A 1.3 centimeter by 0.2 centimeter scar over the left anterior chest near the anterior axillary line was noted secondary to the stab wound. A 1 centimeter by 1.5 centimeter scar over the left anterior chest was noted secondary to chest tube insertion. The examiner noted that the Veteran's scars were not abnormally pigmented or indurated, and were not associated with abnormal texture, abnormal contour, tissue loss or skin breakdown. The scars were not adherent to underlying tissue and were not associated with inflammation, edema or keloid formation. The examiner described the scars as superficial, not deep, and not associated with tenderness on palpation or functional limitation with respect to movement or range of motion. Finally, the examiner stated that the Veteran's decreased lung function is a consequence of his right pneumonectomy for adenocarcinoma of the lung and not related to his in-service stab wound. The examiner noted that the stab wound did not sufficiency injury the Veteran's lung parenchyma. Moreover, the examiner stated that pneumonectomy is not performed unless pre-operative lung function is satisfactory, suggesting that the Veteran did not have worrisome lung function secondary to his stab wound. After a review of all of the evidence presented, the Board finds that the Veteran does not have respiratory residuals related to his in-service stab wound. In so finding the Board places the greatest probative value on the September 2010 VA examination. This report addresses all of the evidence of record and goes into specific detail regarding the Veteran's history and current symptomatology. Moreover, this report references a thorough review, physical examination and a well-reasoned medical opinion. The evidence supporting the Veteran's claim that he has respiratory residuals related to his in-service stab wound consists solely on his own unsupported statements, and includes no reference to any clinical evidence to support such an assertion. Furthermore, the Board notes that the Veteran is no competent to offer an opinion on a matter clearly requiring medical expertise, including the existence of a specific disorder or the etiological basis of any such disorder. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, this is not a case in which the Veteran's lay beliefs alone can serve to establish any association between the Veteran's in-service stab wound and any respiratory problems. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Moray v. Brown, 5 Vet. App. 211 (1993). In sum, the Veteran's lay statements are outweighed by the other evidence of record, including the September 2010 VA examination report, which indicates that the Veteran does not have respiratory residuals from an in-service stab wound. In conclusion, the Board finds that there is a preponderance of evidence against the Veteran's claim of entitlement to service connection for lung residuals of a stab wound. Since the preponderance of the evidence is against the claims, the provisions of 38 U.S.C.A. § 5107(b) regarding reasonable doubt are not applicable and the Veteran's claim on that issue must be denied. However, with regard to the scars indicated during the Veteran's September 2010 VA examination, the Board finds that after weighing the evidence of record and resolving all reasonable doubt in favor of the Veteran, the evidence is in relative equipoise as to whether the Veteran has a scar or scars related to service. For a Veteran to be successful in a claim, he needs to show only that it is at least as likely as not that his current disability is related to service. See 38 U.S.C.A. § 5107(b). The Board finds that for the scar(s) indicated during the September 2010 VA examination that standard has been met. In this context, the Board notes that the Veteran is competent to report that he incurred a stab wound while in service. Moreover, the Board finds the Veteran's statements regarding this event are credible. The Veteran's service treatment records support the Veteran's recollection and the Veteran has submitted statements from other individuals corroborating his account. With regard to current symptomatology the Board notes that the September 2010 VA examination report indicates that the Veteran has an uncomfortable scar due to his in-service stab wound. The Board notes that this finding is highly probative. Given that the Board has accepted that the Veteran sustained a stab wound to the chest during service, the fact that the September 2010 VA examination shows a residual scar, and after resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted. ORDER Entitlement to service connection for a lung disability resulting from an in-service stab wound is denied. Entitlement to service connection for a residual chest scar from an in-service stab wound is granted. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs