Citation Nr: 1305572 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 11-01 958 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE 1. Entitlement to service connection for residuals of shrapnel injury to the abdomen. 2. Entitlement to an initial compensable rating for a scar, right nasal dorsum, residuals of an injury to the nose. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from April 1943 to March 1947. This matter comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Cleveland, Ohio, and a December 2010 rating decision of the VARO in Decatur, Georgia. 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). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Abdomen The Veteran served in Europe during World War II. He avers that while in service, he was hit in the stomach with shrapnel. If an injury or disease was alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, if consistent with the circumstances, conditions, or hardships of service, even if there is no official record of the incident. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). However, the provisions of 38 U.S.C.A. § 1154(b) do not establish a presumption of service connection, but ease the combat Veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. See Caluza v. Brown, 7 Vet. App. 498 (1995). That is, the statute provides a basis for determining whether a particular injury was incurred in service, but not a basis to link the injury etiologically to the current condition. Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007); Cohen v. Brown, 10 Vet. App. 128, 138 (1997); Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996). There are numerous service treatment records (STRs) for the Veteran; however, they are negative for any type of shrapnel wound. They are also negative for any complaints of, or treatment for, an abdominal wound. A December 1943 STR reflects a lump in the chest and some swelling in the right nipple. The Veteran's December 1945 examination report notes that his skin was normal upon clinical examination. His January 1947 report of examination for separation purposes also reflects that his skin was normal upon clinical examination. A July 1947 VA examination report reflects that the Veteran had "vague, ill-defined stomach distress." The record further reflects that the Veteran's "physical examination was essentially negative." In January 1948, the Veteran filed a claim for a stomach condition. A January 1948 discharge summary record reflects that the Veteran was hospitalized for chronic gastric indigestion, which was treated and improved. At the time, the Veteran had moderate tenderness to deep pressure about the umbilicus. The physical examination was otherwise negative. A July 1993 VA examination for the Veteran's stomach complaints (digestive) was negative for any shrapnel wounds. A July 1993 VA examination for the Veteran's heart claim was negative for any shrapnel wounds to the stomach. A July 1993 VA examination for posttraumatic stress disorder reflects that the Veteran contended that he sustained a bullet grazing wound to his left shoulder and shrapnel to his nose while in World War 2. He did not report shrapnel to his abdomen. The Veteran reported that he had had a hiatal hernia six years earlier, or in approximately 1987. In December 2008, the Veteran filed claims for scars of the nose and for an abdominal injury from shrapnel. He was scheduled for an October 27, 2010 VA examination. An October 11, 2020 VA clinical record reflects the following "Veteran's wife calls to cancel labs and [appointments] scheduled for 10-27-10; indicates labs done and seen this past week by non-VA PCP. Cancellation request send to scheduling." In a December 2010 decision, the RO granted service connection for a scar of the nose, evaluated as noncompensable. In a January 2011 statement, the Veteran stated that his wife did not call and cancel his appointment, but rather, VA called and canceled his appointment. (The Board notes that the clinical evidence of record reflects that the Veteran has both a hearing loss disability and dementia.) The Veteran expressed a disagreement with the evaluation for his nose. He was subsequently scheduled for a May 2011 examination of the face, but was not scheduled for an examination of the abdomen. In December 2010, the Veteran filed a substantive appeal as to the claims of entitlement to service connection for the nose and the abdominal injury due to shrapnel. As the evidence reflects that the Veteran was originally scheduled for an examination for his abdomen, and as he contends that neither he, nor his wife, cancelled it, the Board finds that the Veteran should be offered another opportunity for a VA examination. Nose In the April 2009 rating decision, the RO denied the Veteran's claim of entitlement to service connection for residuals of a nose injury. The Veteran filed a notice of disagreement with this denial. Subsequently, in a December 2010 rating decision, the RO granted the Veteran's claim for a scar of the nose, and evaluated the disability as noncompensable. In a statement dated on January 12, 2011, the Veteran disagreed with the noncompensable rating for his nose. He stated that he disagreed with the rating, and also stated "[a]t this point, I'm not sure if I need to disagree with your decision or ask you to re-request the exam and send to C-File. If a DRO review is appropriate, please do this." This Board reasonably construes this as a notice of disagreement as to the assigned noncompensable evaluation. In his VA Form 9, received by VA in January 2011, the Veteran appealed the noncompensable rating for his nose disability. The claims file does not contain a statement of the case (SOC) with regard to this issue. Where a statement of the case has not been provided following the timely filing of a notice of disagreement, a remand, not a referral is required by the Board. Manlincon v. West, 12 Vet. App. 238 (1999). The Board notes that in an August 2011 rating decision, the RO appeared to deny the Veteran's claim for a compensable rating; however, no SOC was provided to the Veteran. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Issue a statement of the case pursuant to the notice of disagreement received in January 2011 as to the rating decision in December 2010, which granted service connection for a scar of the right nasal dorsum and assigned a noncompensable rating. The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b). If a timely substantive appeal is not filed, the claim should not be certified to the Board. 2. Schedule the Veteran for an examination of his abdomen. The examiner is requested to furnish an opinion concerning whether it is at least as likely as not (50 percent or greater) that the Veteran has residuals of a shrapnel wound to the abdomen. The claims folder should be reviewed in conjunction with such examination and the examination report should indicate that such a review was performed. The examiner should consider all the evidence of record, to include the December 1943 STR (lump in the chest and some swelling in the right nipple), December 1945 STR (examination report), January 1947 STR (examination report), July 1947 VA examination report, January 1948 discharge summary record, and July 1993 VA examination report. If the Veteran has any scars to the abdomen, the examiner should opine, as to whether the scars are likely due to a surgery, shrapnel, or some other incident. Any opinion expressed should be accompanied by a complete rationale. The Veteran should be advised that failure to appear for an examination as requested, and without good cause, could adversely affect his claim, to include denial. See 38 C.F.R. § 3.655 (2012). 3. After undertaking any other development deemed appropriate, the RO should readjudicate the issue of entitlement to residuals of a shrapnel injury to the abdomen on appeal. If the benefit sought on appeal is not granted, the RO should issue a supplemental statement of the case and provide the Veteran and his representative with an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as warranted. The appellant has the right to submit additional evidence and argument on the matter or 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. 2012). _________________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).