Citation Nr: 1306592 Decision Date: 02/26/13 Archive Date: 03/01/13 DOCKET NO. 08-24 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residuals of a shell fragment wound of the right knee other than scars. 2. Entitlement to service connection for residuals of a shell fragment wound of the right foot other than scars. 3. Entitlement to service connection for residuals of shell fragment wounds of the left eye. 4. Entitlement to service connection for residuals of a shell fragment wound of the right fourth finger. 5. Entitlement to service connection for residuals of a shell fragment wound of the lower back. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. A. Wasik, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to November 1967. These matters are before the Board of Veterans' Appeals (Board) on appeal of a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida (the agency of original jurisdiction (AOJ)). These matters were before the Board in July 2010 and February 2012 when they were remanded for additional development. In March 2010 the Veteran presented testimony before the undersigned Veterans Law Judge in a hearing at the RO. A transcript of the hearing is associated with the claims file. The issues of entitlement to service connection for residuals of shell fragment wounds of the right knee, right foot, right fourth finger and lower back are addressed in the REMAND that follows the ORDER section of this decision. FINDING OF FACT No residual of shell fragment wounds of the left eye has been present during the pendency of this claim. CONCLUSION OF LAW The criteria for service connection for residuals of a shell fragment wound of the left eye are not met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), 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. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that 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). The Board finds that the duty to notify provisions have been complied with. A February 2007 letter from the RO provided the Veteran with the requisite information. This notification was provided prior to the initial adjudication of the claim in June 2007. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, as well as identified VA medical treatment records, have been obtained. Neither the Veteran nor his representative has identified any outstanding, existing evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. VA provided the Veteran with several VA examinations which were conducted to determine the etiology of his claimed left eye disability. The report of the March 2012 medical examination is adequate for purposes of this decision as it reflects that the examiner reviewed the evidence of record, considered the Veteran's lay statements, examined the Veteran, and properly supported his conclusion. The Board also finds that there has been substantial compliance with its February 2012 remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, the Board will address the merits of the claim. General Legal Criteria Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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, conditions or hardships of such service, even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). 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. Clyburn v. West, 12 Vet. App. 296, 303 (1999); Caluza v. Brown, 7 Vet. App. 498, 507 (1995). "Section 1154(b) provides a factual basis upon which a determination can be made that a particular . . . injury was incurred . . . in service but not a basis to link etiologically the [injury] in service to the current condition." Cohen v. Brown, 10 Vet. App. 128, 138 (1997) (citing Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Caluza). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2009); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran has been awarded the Combat Infantryman Badge and his participation in combat while on active duty is therefore established. In January 2007, the Veteran submitted claims of entitlement to service connection for residuals of shrapnel wounds. In February 2007, the Veteran submitted a claim of entitlement to service connection, in pertinent part, for residuals of a shrapnel wounds of the left eye. He wrote that he was wounded in February 1967, March 1967, April 1967 and July 1967. The injury in April 1967 reportedly resulted in two pieces of metal having to be removed from his eye. The Veteran alleged that the injury later affected his vision. Based on the Veteran's participation on combat, the Board finds that he incurred shell fragment wounds of the left eye during service, as contended. However, that an injury occurred in service alone is not enough; there must be a disability resulting from that injury. Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1993). "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). For the reasons explained below, the Board has determined that the preponderance of the evidence establishes that no residual of the shell fragment wounds of the Veteran's left eye has been present at any time during the period of this claim. The service treatment records are negative for any evidence of a left eye problem. Vision was determined to be 20/20 bilaterally at the time of the separation examination in November 1967. The Veteran's eyes were found to be normal on clinical examination at that time. The Veteran denied having eye trouble on a Report of Medical History he completed in November 1967. The evidence of record which indicates that the Veteran experiences residuals of shell fragment wounds of the left eye is limited to the Veteran's own statements and a single outpatient treatment record. The Veteran testified in March 2010 that he did not experience any scarring of the left eye prior to active duty. He alleged that he was wounded on different occasions from mortar attacks. He testified that his vision had been decreasing over the years in his left eye. Additionally, as set out above, the Veteran has reported that two metallic fragments were removed from his left eye. Based on the Veteran's receipt of the Combat Infantryman Badge, the Board finds the Veteran is competent to report that he was injured in the left eye by shrapnel and that the wound was treated by a medic using a magnet to remove the fragments. The Board has also found no reason to doubt the Veteran's credibility with respect to these matters. However, the Veteran has not alleged that he has experienced impaired vision ever since the in-service injuries. In addition, as noted above, the report of the examination for separation shows that his visual acuity was normal and clinical evaluation of his left eye was negative at that time. While the Veteran might sincerely believe that his post-service impairment in visual acuity is related to the in-service injuries, as a lay person without medical training, he is not competent to provide an opinion concerning this matter requiring medical expertise. The only medical evidence which supports the Veteran's claim is a single VA clinical record. A March 2010 VA clinical record reveals the Veteran complained, in part, of a shrapnel wound of the left eye. The pertinent impression was decreased visual acuity secondary to wounds sustained in Vietnam. A review of the document indicates to the Board that no actual physical examination of the eye was recorded as having been performed. The opinion that the Veteran is experiencing visual problems in the left eye due to residuals of shell fragment wounds appears to based on the history reported by the Veteran without a review of any other clinical evidence. Therefore, the Board finds the medical opinion in the March 2010 VA clinical record which indicates the Veteran has decreased visual acuity due to wounds sustained in Vietnam is of limited probative value. There is competent probative medical evidence which is against the Veteran's claim for service connection for residuals of shell fragment wounds of the left eye. At the time of a November 2011 VA examination, a physician reported that he had reviewed the claims file and a physical examination was conducted. Visual acuity was 20/40 in the right eye and 20/50 in the left eye. Cataracts were present in both eyes, right greater than left. The examiner found no evidence of any residuals of shell fragment wounds of the left eye and opined that the Veteran did not sustain a shell fragment wound of the left eye while on active duty. The rationale was that the service treatment records did not document that the Veteran received treatment for an eye injury and that a physical examination conducted in October 2010 and a March 2010 outpatient treatment record were referenced as not showing any abnormalities of the left eye indicative of traumatic, shrapnel related injuries affecting the left eye. At the time of an April 2012 VA eye examination, the Veteran reported that his left eye was injured by a metallic foreign body to the left cornea. He noticed gradually decreasing vision in the left eye since leaving service. The Veteran informed the examiner that the injury was treated in the field with a magnet to remove the metallic shrapnel particles embedded in his cornea. Physical examination was conducted. Uncorrected distance vision was 20/40 or better in both eyes. Temporal endothelial scarring, secondary to cataract surgery was present with no other scarring observed. The examiner observed that the Veteran had superficial corneal scars which were consistent in both appearance and location with a history of cataract surgery on both eyes. The scars did not cause any type of external disfigurement and could only be seen with the aid of specialized equipment. The examiner opined that the scars were in no way related to, caused by or exacerbated by the Veteran's claimed eye disorder. No other corneal scarring was present, especially in the left eye which was the focus of the examination. The examiner opined that the Veteran's claimed eye condition was less likely than not incurred in or caused by his active duty service. The rationale was that the only corneal scarring present was that scarring which was purposely induced during elective cataract surgery in both eyes. The examiner found that no other corneal scarring was present in the left eye to indicate any significant injury to the left eye that would result in scarring from shell fragments. The examiner found that the Veteran was not currently disabled by any ocular scarring of any kind. The Board affords the April 2012 VA examination report significant probative weight. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (holding that the credibility and weight to be attached to medical opinions are within the province of the Board). In this regard, the Board notes that in addition to examining the Veteran, the examiner considered the Veteran's pertinent medical history and properly supported the conclusions reached. Accordingly, the claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Entitlement to service connection for residuals of shell fragment wounds of the left eye is denied. REMAND In March 2012, the Veteran underwent VA examinations to determine the etiology of the claimed right knee, right foot, right fourth finger and lower back disabilities on appeal. The findings of the examiner were consistent for each of these disabilities: that the claimed conditions were less likely than not incurred in or caused by the claimed in-service injury, event or illness. The stated rationale for all the opinions was that the Veteran had soft tissues injuries during active duty which were treated appropriately and the examiner opined that he would not expect sequelae from the injuries 40 years later. Unfortunately, the Board finds the report of the March 2012 VA examination inadequate for determining whether the Veteran has residuals of shell fragment wounds of the right knee, right foot, right fourth finger and/or lower back. The examiner's rationale ignores the fact that the Veteran has reported that he had pain in all the pertinent areas after the in-service injuries and the pain never resolved up until the time of the examination. The Board notes the Veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service after being injured and also experiencing unresovling pain thereafter. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board has found no reason to question the Veteran's veracity with regard to his reports of pain he experienced while on active duty and thereafter. The Veteran's assertions in this regard constitute competent evidence which cannot be overlooked. A medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the United States Federal Circuit Court determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Under these circumstances, the Board finds the evidence currently of record is inadequate, and that another VA examination with medical opinion-which takes into account all pertinent evidence, to include the Veteran's assertions-is needed to resolve the claims being remanded. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). While this case is in remand status, further development to obtain any pertinent, outstanding records should also be completed. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. 2. Then, arrange for the claims file and any pertinent evidence in Virtual VA that is not contained in the claims file to be provided to the examiner who conducted the March 2012 VA examinations of the right knee, right foot, right fourth finger and low back and request that the examiner prepare an addendum which addresses the following: Inform the examiner to accept the Veteran's reported history of experiencing pain at the time of the original shell fragment wounds of the right knee, right foot, right fourth finger and low back and that he continued to experience unresolved pain in those areas up until the present time. Request that the examiner prepare an addendum to the examination report which addresses the Veteran's allegations of continuity of pain symptomatology and whether this evidence changes the prior opinions regarding whether the currently has or has had at any time during the period of the claims residuals of shell fragment wounds of the right knee, right foot, right fourth finger and/or a low back. If the examiner determines that he cannot provide the requested addendum without another physical examination of the Veteran, this should be scheduled. If the examiner who conducted the March 2012 VA examination is not available, arrange to have the Veteran examined by a suitably qualified health care professional who should be tasked with determining whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has residuals of shell fragment wounds of the right knee, right foot, right fourth finger and/or low back sustained during his active duty service. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims file should be made available to and reviewed by the examiner. For purposes of the opinions, the examiner should assume that the Veteran is a reliable historian. A complete rationale should be provided for all opinions. If any opinion cannot be provided without resort to speculation, the examiner should so state and explain why the requested opinion could not be provided without resort to speculation. 3. Undertake any other indicated development. 4. Then, readjudicate the claims on appeal in light of all pertinent evidence. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC must furnish to the Veteran and his representative a supplemental statement of the case and the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court 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). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs