Citation Nr: 1313426 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 09-20 697 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for residuals of a gunshot/shrapnel wounds to the buttocks. 2. Entitlement to service connection for a disability manifested by tingling and numbness of the right leg. 3. Entitlement to service connection for a disability manifested by tingling and numbness of the left leg. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May 1957 to February 1990. He was a recipient, in part, of the Combat Infantryman Badge (CIB); Purple Heart Medal; Silver Star; and Bronze Star with V device. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. By that rating action, the RO, in part, denied the claims for service connection for residuals of gunshot/shrapnel wounds to the buttocks and disabilities manifested by tingling and numbness of the right and left legs. The Veteran appealed this rating action to the Board. In March 2012, the Board, in part, remanded the issues on appeal to the RO for additional development. The requested development has been completed and these matters have returned to the Board for appellate consideration. Also developed for appellate consideration at the time of the Board's March 2012 remand were the issues of entitlement to service connection for residuals of gunshot/shrapnel wound to the neck; entitlement to service connection for left shoulder melanoma, claimed as skin cancer, to include as secondary to in-service herbicide and/or ultraviolet light exposure; entitlement to service connection for gastroesophageal reflux disorder (GERD); entitlement to service connection for right and left knee patellofemoral syndrome. By an October 2012 rating action, the RO granted service connection for the following disabilities and assigned the corresponding initial disability ratings: (i) residuals of shrapnel wounds to the neck and back affecting Muscle Group XXII with surgical scar (30 percent); (ii) patellar femoral syndrome of the left knee and right knees (10 percent each knee); (iii) patellar subluxation of the right and left knees (20 percent each knee); (iv) GERD (noncompensable); and, (v) basal cell carcinomas of the skin (noncompensable). The RO assigned all of the above-cited service-connected disabilities an effective date of December 21, 2006--the date VA received the Veteran's initial claim for compensation for these disabilities. As the Veteran has not disagreed with the initial disability ratings or the effective date assigned to the above-cited service-connected disabilities, these issues are no longer before the Board for appellate consideration. Grantham v. Brown, 114 F. 3d 1156 (Fed. Cir. 1997). FINDINGS OF FACT 1. The competent and probative evidence of record does not show that the Veteran currently has residuals of gunshot/shrapnel wounds of the buttocks. 2. The competent and probative evidence of record does not show that the Veteran currently has disabilities manifested by numbness and tingling of the right and left legs. CONCLUSIONS OF LAW 1. Residuals of gunshot/shrapnel wounds to the buttocks were not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. Disability manifested by tingling and numbness of the right leg was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 3. Disability manifested by tingling and numbness of the left leg was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in January 2007 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in August 2007. Nothing more was required. VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of the claims decided herein, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). The RO obtained his service treatment and personnel records and VA treatment records and identified private treatment records. No outstanding evidence has been identified that has not otherwise been obtained and associated with the record. The Board remanded the claims to the RO/AOJ in March 2012 for additional development. Specifically, to obtain VA treatment records, from the Charleston, South Carolina VA Medical Center (VAMC) and Savannah, Georgia VA outpatient clinic; schedule the Veteran for VA examinations with opinions to determine the etiology of any currently present residuals of shrapnel/gunshot wounds to the buttocks and disabilities manifested by numbness and tingling of the right and left legs; and provide the Veteran with authorization and release forms to obtain outstanding treatment records from A. C., M. D. and J. A. Y., M. D. Thereafter, VA treatment reports, dated from June 2005 to October 2007 and October 2009, were received from the Savannah, Georgia outpatient clinic and Charleston, South Carolina VAMC, respectively. These records have been associated with the claims file. In response to the Board's March 2012 remand directives, VA examined the Veteran to determine the etiology of any current residuals of shrapnel/gunshot wounds to the buttocks and disabilities manifested by numbness and tingling of the right and lefts legs in May 2012. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are more than adequate, they are predicated on a full understanding of the Veteran's medical history, consideration of the Veteran's lay assertions, review of the record, physical examination, and provide a sufficient evidentiary basis for the claim to be adjudicated. The May 2012 VA examiner has provided answers to the specific medical questions asked by the Board in its March 2012 remand directives, such that the requested development has been completed. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. The RO/AOJ mailed the Veteran a letter in March 2012 that asked him to complete submit authorization forms that would permit VA to obtain treatment records from A. C., M. D. and J. A. Y., M. D.. To date, he has not submitted those forms. The Board notes that the Veteran's representative, Georgia Department of Veterans Service (GDVS), did not submit an argument in the form of a Statement of Accredited Representative in Appealed Case in support of the current appeal. However, in a January 2013 letter to the GDVS, accompanied with a Supplemental Statement of the Case addressing the issue of entitlement to residuals of shell fragment/gunshot wounds to the buttocks, the RO specifically requested that a VA-Form 646 be prepared and submitted within eight (8) days of this letter. As GDVA did not provide the requested 646 in the prescribed time period, the Board will proceed to the merits of the claims. In light of the foregoing, the Board concludes that all the available records and medical evidence has been obtained in order to make an adequate determination as to the claims for service connection for residuals of shrapnel/gunshot wounds to the buttocks and disabilities manifested by numbness and tingling to the right and left legs. No further notice or assistance is required to fulfill VA's duty to assist in the development of this claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 18 (2002). VA has complied with the duty-to-assist requirements. 38 U.S.C.A. § 5103A . (CONTINUED NEXT PAGE) II. Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. As the Veteran has not been diagnosed with a neurological disability of the lower extremities, the tenets of 3.303(b) have not been invoked. If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. III. Legal Analysis The Veteran seeks service connection for residuals of shrapnel/gunshot wounds to the buttocks and disabilities manifested by numbness and tingling of the right and left lower legs. The Veteran maintains that his claimed lower extremity disorders are casually related to his in-service duty assignments, numerous parachute jumps and verified combat service. The threshold question to be answered is whether the Veteran currently has residuals of shrapnel/gunshot wounds to the buttocks and disabilities manifested by numbness and tingling of the right and left legs. If, and only if, that question can be answered in the affirmative would it be necessary to explore the question of whether they are etiologically linked to his period of active military service. The Board finds that because the preponderance of the competent evidence of record does not establish current diagnoses of residuals of shrapnel/gunshot wounds to the buttocks and disabilities manifested by numbness and tingling of the right and left legs, the claims will be denied. Parenthetically, the Veteran has been awarded service connection for residuals of shrapnel wounds to the neck and back, Muscle Group XXII (evaluated as 30 percent disabling); patella femoral syndrome of the right and left knees (each knee evaluated as 10 percent disabling); and patellar subluxation of the right and left knees (each knee evaluated as 20 percent disabling). Appellate review of the claims on appeal will thereby not include consideration of these service-connected disabilities. The Veteran's service treatment records show that in April 1970, he was wounded in action during a mortar attack. He was hospitalized for seven (7) days for treatment of a fragment wound of the left mandible angle with no artery or nerve involvement. The Veteran was awarded the Purple Heart Medal as a result of his action. No finding of a shell fragment wound of the buttocks is listed. A June 1982 Report of Medical History, reflects that the Veteran complained, in part, of leg cramps. On the reverse side of the report, the examining physician noted that the Veteran had been hospitalized for wounds sustained in 1970 in the Republic of Vietnam (RVN). The physician noted that the Veteran was able to complete normal physical training with his unit. A November 1989 retirement examination report reflects that the Veteran's anus and rectum were evaluated as "normal." The Veteran's lower extremities were found to have been "abnormal" due to an unrelated bilateral knee disability. On an accompanying Report of Medical History, the Veteran related, in part, that he had had leg cramps. On the reverse side of the report, the examining physician noted that the Veteran had sustained gunshot/shrapnel wounds in the RVN in 1967 and 1969. The physician noted that the Veteran had frequent generalized arthralgia. Post-service VA and private treatment and examination reports, dated from 2005 to 2012, contain, in part, generalized assessments of joint pain and osteoarthritis (June 2005 VA treatment report) and arthritis (February 2007 VA treatment report). In September 2007, A. C., M. D., noted that the Veteran had complained of various leg and knee pains, as well as numbness and tingling since he had retired from military service in 1990. A neurological disability with respect to the lower legs was not diagnosed. A January 2008 VA treatment report reflects that the Veteran had an unspecified injury to knee, leg, ankle and foot. None of these records contain any clinical findings or subjective complaints referable to residuals of shrapnel/gunshot wounds to the buttocks. The Board notes that the above-cited assessments of osteoarthritis, arthritis and unspecified injury to the leg are not supported by any physical examination findings, to include x-rays, of the right and left legs. There was no explanation as to why these diagnoses were given in the above-cited VA treatment reports and no indication that these disorders were related to the Veteran's active duty service. McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) [holding that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also 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 if no disability is present at the time of the claim's adjudication]. A VA examination was conducted in May 2012 to determine the nature and etiology of any currently present residuals of shrapnel/gunshot wounds of the buttocks and disabilities manifested by numbness and tingling of the right and left legs. The May 2012 VA examiner concluded, after a complete physical examination of the Veteran, that he had residuals of shrapnel wounds of the neck and back, but that there was no evidence of any peripheral nerve and/or peripheral neuropathy of the right and left legs. He also emphasized that there were no clinical findings referable to any shrapnel/gunshot wounds to the buttocks. Put another way, aside from the generalized and somewhat vague assessments of osteoarthritis and arthritis and injury to the leg , which again are without any supported clinical and physical findings of the legs and/or buttocks, there is no competent evidence of record (medical or otherwise) showing that the Veteran currently has residuals of shrapnel/gunshot wounds to the buttocks and disabilities manifested by numbness and tingling of the right and left legs. There is no evidence of the existence of these disabilities at any time since VA received the Veteran's claim compensation in December 2006. McLain, supra. To the contrary, the medical evidence of record shows that the Veteran does not have residuals of shrapnel/gunshot wounds to the buttocks and disabilities manifested by numbness and tingling of the right and left legs. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, neurological and muscle disorders fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Neurological damage, to include peripheral neuropathy, and the existence of a shell fragment wound are not the types of conditions that is readily amenable to mere lay diagnosis or probative comment regarding their etiology, as the evidence shows that neurological testing, physical examination, and other specific findings is needed to properly assess and diagnose the disorders. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Board readily acknowledges that Veteran is competent to report symptoms of numbness and tingling. He is equally competent to identify the existence of scar and report a history of receiving a shell fragment wound. However, there is no indication that the Veteran is competent to diagnose a neurological disorder or the residuals of a shell fragment wound. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating neurological disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). The identification and classification of a shell fragment wound is also a medical determination. Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim. " Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The competent medical evidence of record is negative for residuals of shrapnel/gunshot wounds to the buttocks and disabilities manifested by numbness and tingling of the right and left legs. The Board finds that the preponderance of the competent and credible evidence of record is against the Veteran's contention that he has residuals of gunshot wounds to the buttocks and disabilities manifested by numbness and tingling of the right and left legs. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, because the preponderance of the evidence is against the claims for service connection for residuals of shrapnel/gunshot wounds to the buttocks and disabilities manifested by numbness and tingling of the right and left legs, this doctrine is not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for residuals of shrapnel/gunshot wounds to the buttocks is denied. Service connection for a disability manifested by numbness and tingling of the right leg is denied. Service connection for a disability manifested by numbness and tingling of the left leg is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs