Citation Nr: 1303192 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 08-19 702 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to service connection for the residuals of a shell fragment wound of the left knee. 2. Entitlement to service connection for the residuals of a shell fragment wound of the back. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and K. L. ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to August 1968. He had service in the Republic of Vietnam, where his primary military occupational specialty was light weapons infantry. His awards and decorations included the Combat Infantryman Badge and the Purple Heart Medal. This case was previously before the Board of Veterans' Appeals (Board) in March 2011 and July 2012. Each time, it was remanded for further development. Following the requested development, the VA Appeals Management Center (AMC) in Washington, D.C. confirmed and continued the denials of entitlement to service connection for the residuals of shell fragment wounds of the left knee and back. Thereafter, the case was returned to the Board for further appellate consideration. In January 2011, the Veteran had a hearing at the RO before an Acting Veterans Law Judge of BVA. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran has scarring on the anterior aspect of his left knee that is reasonably related to a fragmentation wound sustained in the Republic of Vietnam. 2. Current disability of the back attributable to active service is not shown. CONCLUSIONS OF LAW 1. Scarring of the anterior aspect of the Veteran's left knee was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). 2. The claimed residuals of a shell fragment wound of the back are not the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the issues of entitlement to service connection for the residuals of shell fragment wounds of the left knee and back. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In May 2007, VA received the Veteran's claims, and there is no issue as to providing an appropriate application form or completeness of the application. Following the receipt of that application, VA notified the Veteran of the information and evidence necessary to substantiate and complete his claims, including the evidence to be provided by him, and notice of the evidence VA would attempt to obtain. VA informed him of the criteria for service connection and set forth, generally, the criteria for rating service-connected disabilities and for assigning effective dates, should service connection be granted. Thereafter, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. VA obtained or ensured the presence of the Veteran's service treatment and personnel records; reports of private medical treatment from December 1983 through August 2003; records reflecting the Veteran's treatment from October 1985 through October 2012; and the transcript of his January 2011 hearing before the undersigned Acting Veterans Law Judge. In May 1987, January 1989, April and September 2011, and July 2012, VA examined the Veteran to determine the nature and etiology of any left knee disorder or low back disorder found to be present. The VA examination reports reflect that the examiners reviewed the Veteran's medical history, interviewed and examined the Veteran, documented his medical conditions, and rendered diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the Board concludes that the VA examinations are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support either of his claims; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. The Merits of the Appeal The Veteran seeks entitlement to service connection for the residuals of shell fragment wounds of the left knee and back. Service connection connotes many factors but basically it means that the facts, shown by 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. 38 U.S.C.A. § 1110. Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Holton v. Shinseki, 557 F.3d 1362 (Fed Cir. 2009). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease identity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or within a presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. For certain disabilities, such as arthritis, service connection may be presumed when such disability is shown to a degree of 10 percent or more within one year of the veteran's discharge from active duty. 38 U.S.C.A. § 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Such a presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1113 (West 2002); 38 C.F.R. § 3.307 (2012). The foregoing law and regulations notwithstanding, service connection may 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). The Left Knee During his January 2011 hearing, the Veteran testified that he injured his left knee during his service in the Republic of Vietnam. He stated that the vehicle in which he was riding hit an explosive device and that he sustained a shell fragment wound of the knee. He maintains that service connection is warranted for the residuals of that injury. After reviewing the Veteran's claim in light of the evidence and applicable law, and particularly with resolution of reasonable doubt in his favor, the Board agrees. The Board acknowledges that the Veteran is competent to give testimony about what he experienced in and after service. For example, he is competent to report that sustained shell fragment wounds to his left knee and low back in service. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). As a lay person, however, he is, generally, not qualified to render opinions which require medical expertise, such as the diagnosis of any residual disability. 38 C.F.R. § 3.159(a); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Therefore, the Veteran's opinion, without more, is not dispositive, unless the particular disorders at issue are ones which are amenable to lay observation. 38 C.F.R. § 3.159(a). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11. The Board is mindful that it cannot make its own independent medical determination, and that there must be plausible reasons for favoring one medical opinion over another. Evans v. West, 12 Vet. App. 22, 31 (1998). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings. The probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). However, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). The Veteran's service personnel records, including a casualty report, show that while serving in the Republic of Vietnam in February 1966, a booby trap detonated striking the convoy in which he was riding. He reportedly sustained a fragment wound of the left leg. Shortly thereafter, he was awarded the Purple Heart Medal. Post-service medical records confirm the presence of scarring resulting from the Veteran's shell fragment wound of the left knee. For example, in May 1987, a VA examination revealed the presence of a barely visible scar, one centimeter long, located in the anterior aspect of the Veteran's left knee. The examiner suggested that such scar was the result of his shell fragment wound in service. In January 1989, a VA examiner confirmed the presence of two small scars on the anterior portion of the Veteran's left knee. In light of the history reported by the Veteran, the confirmation of his left knee shell fragment wound in his DD form 214 records, and the results of VA examinations, the Board concludes that the Veteran has scarring, albeit barely discernable, on his left knee as a result of his inservice injury. Accordingly, service connection for such scarring is warranted; and to that extent, the appeal is allowed. In arriving at this decision, the Board notes the Veteran's contentions that he has degenerative joint disease in the left knee as the result of his service-connected shell fragment wound. The presence of degenerative joint disease of both knees was noted during the April 1989 VA examination many years following service and again noted during treatment in March 2003 at the Baylor Senior Health Center. However, there is no evidence that such a disorder is in any way related to the Veteran's shell fragment wound of the left knee in service. Therefore, the foregoing allowance pertains to scarring of the left knee only. The Back The Veteran's service personnel records, including the aforementioned casualty report, also show that the Veteran sustained a fragmentation wound of some type to his back in service. However, unlike the Veteran's left knee, there are no reports of any disability resulting from that explosion. Indeed, his service treatment records are negative for any complaints or clinical findings of a back disorder of any kind, including scars. The May 1987 and January 1989 VA examination reports are similarly negative. Although the May 1987 VA examiner noted a history of intermittent low back pain, neither that examiner nor the VA examiner in January 1989 found the presence of a chronic, identifiable back pathology. In this regard, the Board notes that pain alone without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 259 F.3d 1356, 1361-1362 (2001). More recent evidence shows that a chronic, identifiable low back disorder was first suspected during VA treatment in December 2002, a time many years after service. X-rays showed the possibility of degenerative disc disease at the sacroiliac joint or a transitional joint. In April and September 2011 and September 2012, VA re-examined the Veteran to determine the nature and etiology of any back disorder, including scarring, found to be present. Those examinations all failed to identify any disability, including scarring, that was related to the Veteran's service. Although the examinations confirmed the presence of degenerative disc disease in the Veteran's lumbar spine, the examiners opined that it was less likely than not that such disorder was in any way related to any shell fragment wound of the back in service. In so saying, the examiners noted that the Veteran's service treatment records were negative for the presence of degenerative disc disease. Both examiners found that the Veteran's low back disorder had started after service; and the September 2012 VA examiner noted, specifically, the Veteran's report that his back pain had started in the 1970's, a time after service. The Veteran has not presented any competent, objective evidence to the contrary and he has not presented any competent objective evidence of a nexus between his current back disability and service. Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for the residuals of a shell fragment wound of the back. Absent evidence of chronic, identifiable residuals of a shell fragment wound of the back in service or a nexus between that injury and his current degenerative disc disease of the lumbar spine, the Veteran's current back disorder does not meet the criteria for service connection. Accordingly, service connection for claimed residuals of a shell fragment wound of the back is not warranted; and to that extent, the appeal is denied. In arriving at this decision, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for the residuals of a shell fragment wound of the back. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b) (West 2002) ; 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection is granted for scarring of the left knee. To this extent, the appeal is allowed. Entitlement to service connection for the residuals of a shell fragment wound of the back is denied. This portion of the appeal is denied ______________________________________________ ROBERT E. O'BRIEN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs