Citation Nr: 1313736 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 10-20 143 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for residuals of shrapnel injuries to the right leg. 2. Entitlement to service connection for residuals of shrapnel injuries to the left leg. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from September 1944 to July 1946. This matter has come before the Board of Veterans' Appeals (Board) on appeal from September and December 2009 rating decisions of the Hartford, Connecticut, Department of Veterans Affairs (VA) Regional Office (RO). In August 2006, the Board denied entitlement to service connection for residuals of shrapnel injuries to the right and left legs. In November 2011, the Board reopened and remanded the claims of entitlement to service connection for residuals of shrapnel injuries to the right and left legs. In addition the claim of service connection for tinnitus was remanded for further development to include a VA examination. The claim was remanded again in February 2013 for the RO to consider additional evidence submitted by the Veteran, for which he declined to waive consideration by the agency of original jurisdiction. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The appeal regarding service connection for tinnitus is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. 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 current residuals of a fragmentation injury to the right leg that was incurred during active service. 2. The Veteran has current residuals of a fragmentation injury to the left leg that was incurred during active service. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for SFW injuries to the right leg are met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). 2. The criteria for the establishment of service connection for SFW injuries to the left leg are met. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the Veteran in substantiating his claims. Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element in the case of a chronic disease is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 706 F.2 1331 (Fed. Cir. 2013) overruling in part Barr v. Nicholson, 21 Vet. App. 303 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where, a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships, of service. 38 U.S.C.A. § 1154(b) (West 2002). Section 1154(b) sets forth a three step sequential analysis that must be undertaken when a combat veteran seeks benefits under the method of proof provided by the statute. First, it must be determined whether the veteran has proffered "satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease." Second, it must be determined whether the proffered evidence is "consistent with the circumstances, conditions, or hardships of such service." Finally, if the first two requirements are met, VA "shall accept the veteran's evidence as "sufficient proof of service connection," even if no official record exists of such incurrence exists. In such a case a factual presumption arises that that the alleged injury or disease is service connected. Collette v. Brown, 82 F.3d 389, 393 (Fed. Cir. 1996); 38 C.F.R. § 3.304 (1996). Evidence of a current disability and of a nexus between service and a current disability is still required; but the presumption of service connection under 38 U.S.C.A. § 1154(b) may extend to the in service consequences of the combat injury. Reeves v Shinseki, 682 F.3d 988 (Fed. Cir. 2012) (§ 1154(b) required VA to presume not only that an injury occurred in combat, but that the injury resulted in permanent hearing loss as reported by the Veteran); cf. Wade v. West, 11 Vet. App. 302 (1998); Turpen v. Gober, 10 Vet. App. 536 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's service treatment records were lost in a fire at the National Archives and Records Administration in July 1973. The only available record is a second page of an award of the Purple Heart which noted that he received that award as the result of fragmentation injuries to the bilateral lower legs, arms, and left hands sustained in the conflict at locations in France. Service connection has been awarded for shrapnel injuries to both arms and the left hand. The Veteran contends that he has current disabilities of the lower extremities that are related to the SFWs to his lower extremities suffered while on active duty, specifically during WWII. In June 2003 and September 2009, he wrote that he had been in constant pain since the injuries in 1944, and noted that he had scars on both lower extremities At his initial VAMC clinic visit in November 2002, progressive bilateral knee pain was noted to have start 6 years ago. X rays performed at that time demonstrated concavity of the medial femoral condyles bilaterally. It was noted that this was associated with spontaneous osteonecrosis. At the posterior aspect of the right knee there were multiple bony fragments noted. Mild degenerative changes of both knees were diagnosed. In May 2003, it was reported that he had experienced knee pain since 1990. A February 2003 letter from Dr. Katz noted that, "Although all of the records have been destroyed, our computer shows that surgery was performed on this patient..... a partial medial meniscectomy of his left knee on 11/2/94. The patient also had surgery to his right knee but the date ... is not known." At a VA examination in July 2003, which focused mainly on the upper extremities, the examiner noted the history of shrapnel injuries to the lower extremities. The examiner noted edema but no scars in the lower extremities. A July 2003 VAMC orthopedics clinic note expressed concerns for possible spinal stenosis or circulatory condition given anterior leg/shin pain in a dermatomal distribution." Bilateral knee varus deformity was noted as well. An October 2004 record noted the Veteran had a recent decline in functional status due to pain. He had previously been able to walk 3 miles but now was down to 1 block. A January 2005 record noted for the first time anterior shin pain dating to 1944. In a November 2011 VA examination the Veteran reported he sustained many shrapnel injuries to his anterior legs in service. A medic was able to remove the large pieces of shrapnel in the field, bandage him up and he returned to the front line. He does not recall any additional treatment. After the injury he limped a lot due to pain and with marching or any sustained walking or running his legs felt "like he was hit by a baseball bat." He reports having the same aching pain which he states is 8-9/10 on a scale of 10 most of the time. After discharge from service he returned to work as a mechanic and continued working as a mechanic until he retired 10-12 years ago. He reported slowing down physically about 20 years ago since he was not able to stand due to pain in his legs mainly in the shins. The only reason he states he stopped working was due to the bilateral shin pain. He reported first seeing a Dr. Katz about 1980 for his leg pain. Dr. Katz found nothing with regard to his shin pain but reported that shrapnel was taken out of his knees; the Veteran reported that when he asked the doctor, he would not write a confirmatory statement of this. Initial VA records note the onset of knee pain in 1996; Shin/anterior leg pain was first noted in a VA orthopedic evaluation in July 2003. The examiner summarized the claims file noting that the file contained a Purple Heart awarded for fragmentation in both legs, left hand and both arms. The examiner noted a discussion with an attending VA Radiologist, found it was unlikely that a shrapnel injury caused the bilateral knee osteonecrosis; findings were more likely due to longstanding OA (osteoarthritis). The onset of knee symptoms occurred in the 1990s, 50 years following discharge from service. There was no current evidence that surgery performed on the Veteran's knees in 1990 and 1995- subjectively reported by the Veteran- by Dr. Katz was removal of shrapnel fragments The examiner opined that the Veteran had severe bilateral degenerative changes of the knees with notation of medial femoral compartment osteonecrosis in November 2002 X-rays, more likely the result of longstanding OA/age related. There was no current evidence to suggest that the Veteran's current knee OA/ Osteonecrosis was the result of a distant shrapnel injury 60 years ago. The examiner further noted that bilateral anterior leg shrapnel wounds were sustained in service. This was supported by the Veteran's consistent history, and documented throughout his C file. Scattered scars on his anterior shins further document and support the bilateral shrapnel injuries. He has reported since the service injuries to be having anterior leg pain with standing and ambulation, in the same area of the shrapnel scars. There was no additional treatment of this pain till the 1980's when he was treated for his leg and knee pain by Dr. Katz, close to 40 years after discharge from service. Despite his shin discomfort he was able to work as a mechanic until 20 years ago when the pain became more intense and he began to assign more work to his employees. (As likely as not this was due to his advancing knee OA and lumbar spine OA/stenosis.). Then 12 years ago he stopped working due to the severe pain in his legs to include the shin pain, knee pain (likely OA) and lateral leg pain, suspected to be due to spinal stenosis. At a VA joint examination in October 2012, the Veteran reported bilateral knee pain, left worse than right. He stated that the knees swelled and gave way. He could sit about 10 minutes and stand and walk about 10 minutes secondary to the pain and fear of the left leg buckling. He used a cane when he was out and a walker at home and wears a left knee brace. The examiner noted scars which were not painful and/or unstable, or had a total area of all related scars greater than 39 square cm (6 square inches). Upon review of the Veteran's treatment notes, the examiner noted that the visualized joint spaces are unremarkable for age, there was moderate degenerative change medially in the knee joint. The soft tissues show no significant findings, vascular calcification was developing. The examiner noted unremarkable lower leg, moderate degenerative change noted in the knee joint. There was no evidence which contradicts the prior decision of denial for service connection for shrapnel injuries to the right and left legs rendered on the SSOC dated October 10, 2012. In summary the examiner acknowledged that there was documentation to confirm that the Veteran did indeed suffer shrapnel injuries to the bilateral anterior legs during military service in WWII. There were no available records following military service which attest to chronic disability from anterior shin pain. During the period from the 1940s to at least the 1990s the Veteran worked without limitation as a mechanic and VA records document he was able to walk at least 3 miles per day until 2003. The first documentation of complaints of anterior shin pain did not occur until 2003 (more than 50 years after military service) in the orthopedic notes and they stated it began around 1990. The examiner thus concluded that there was no documentation of anterior shin pain until the Veteran showed evidence of severe osteoarthritis of the knees and lumbar osteoarthritis with bilateral neural foraminal narrowing, both of which could cause radiation of pain to the anterior lower extremities. In addition, he had evidence of venous stasis of the lower extremities on the current examination (swelling, superficial varicosities) which could also cause lower extremity pain. The examiner added that the only evidence of anterior shin pain existing prior to 2003 was the Veteran's subjective report. As such, the documented evidence suggests that his bilateral anterior leg pain began and became limiting with the development of non service connected comorbidities, namely bilateral knee osteoarthritis, lumbar spine osteoarthritis and venous insufficiency. It is as likely as not that the Veteran's bilateral anterior leg pain and disability is secondary to a combination of these three processes and less likely as not that it is secondary to anterior leg causalgia related to shrapnel injury during military service. While it was possible the Veteran had some bilateral anterior leg causalgia (pain, secondary to local peripheral nerve injury) secondary to fragment wounds, there was no objective support for this at present. The examiner went on to state that there was no evidence of retained shrapnel, no significant functional limitation secondary to leg pain for more than 50 years following injury. There were other better documented causes for pain. Furthermore, there would be no disability related to this as he functioned for more than 50 years without limitation, until the occurrence of other comorbidities described above. Analysis The Veteran's Purple Heart award citation, information on his certificate of discharge from service, and the Veteran's statements provide overwhelming evidence that he sustained shrapnel injuries to both lower extremities during combat in service. The VA and private treatment and examination reports also clearly show current disability. The remaining question is whether that disability is related to the in-service injuries. VA examiners have provided negative answers to this question, but they have given no credence to the Veteran's reports of pain that began with the in-service injuries and contrary to applicable case law have required that there be clinical evidence confirming his reports. Cf. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Because the in-service injuries clearly occurred in combat, the Board must presume that the injury and its ongoing consequences occurred. Reeves. While the examination reports noted no evidence of retained shrapnel, and no significant functional limitation secondary to leg pain for more than 50 years following injury, the Veteran has reported continued pain and disability associated with the documented SFWs suffered during service. The medical records confirm evidence of residual SFW scars of the bilateral lower extremities, current bilateral lower extremity disability, namely osteoarthritis, bilateral knees, and venous insufficiency. The Purple Heart award confirms bilateral lower extremities injuries suffered during service. Accordingly, resolving doubt in favor of the Veteran, service connection is warranted for residuals of shrapnel injuries to the bilateral lower extremities. . See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Service connection for residuals of shrapnel injuries to the right lower extremity is granted. Service connection for residuals of shrapnel injuries to the left lower extremity is granted. REMAND The Veteran filed a claim for service connection for tinnitus in June 2009; the application for compensation did not report any treatment or details about symptoms. He has provided varying reports as to when the tinnitus began. At a VA audiological examination in January 2011, the Veteran reported that he had a bilateral hearing loss for the past 25 years and tinnitus for 10 years. A tinnitus match could not be performed by the examiner because of apparent malingering by the Veteran. The Veteran was reinstructed several times by the examiner but he did not or could not cooperate with the examiner. The examiner could provide a diagnosis or opined on his claimed tinnitus. At a VA audiological examination in March 2011, the Veteran reported that he had a bilateral hearing loss for the past 50 years and tinnitus for 10 years. He complained of difficulty distinguishing voices. He had no other otologic complaints including no report of tinnitus. At a VA audiological examination in November 2011, the examiner noted that he could not provide a medical opinion regarding the etiology of the Veteran's tinnitus without resorting to mere speculation because the test was invalid due to inconsistent responses from the Veteran. In its November 2011 remand, the Board sought to afford the Veteran a VA examination that specifically addressed his reports of acoustic trauma during service, his medical history, and the prior VA examinations. The November 2011 VA audiological examination failed to provide the necessary medical evidence. The examiner reported that the claims file had been reviewed. The examiner reported a history provided by the Veteran at the examination noting the tinnitus was not bothersome. The examiner noted a medical opinion could not be provided because the test was invalid due to the inconsistent responses by the Veteran. The Veteran was afforded three VA audiological examinations. At the first examination in January 2011, the examiner could not provide a diagnosis or opinion regarding tinnitus. At the second examination in March 2011, the Veteran reportedly denied current tinnitus symptoms. At the third examination in November 2011, the examiner once again could not provide a diagnosis or opinion on his claimed tinnitus; but examiners have not provided reasons why the necessary opinions could not be provided and whether the inability was due to missing evidence or the limits of scientific knowledge. Jones v. Shinseki, 23 Vet. App. 382 (2010). VA regulations provide that where "the [examination] report does not contain sufficient detail; it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (2012). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996). The Board finds that another VA audiological examination is necessary to determine the nature and etiology of the claimed tinnitus. It is pertinent to note that Congress has created the Veterans' benefits system to be uniquely pro-claimant. See Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002); Nolen v. Gober, 222 F.3d 1356 (Fed. Cir. 2000); Hensley v. West, 212 F.3d 1255 (Fed. Cir. 2000). VA has a duty to fully and sympathetically develop a claimant's claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). The Veteran is notified that it is his responsibility to report for any examination and to cooperate in the development of the case, and that the consequences of failure to cooperate with the VA examiner may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655. The Board notes that "[T]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 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) (2010). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any current tinnitus. The claims folder, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that any current tinnitus had its onset in service, is secondary to service connected hearing loss, is related to the Veteran's in-service noise exposure, or is otherwise related to a disease or injury in service. The examiner should note that tinnitus demonstrated at any time during the appeal period constitutes a current disability, even if not reported on the current examination. The examiner must provide reasons for the opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report noise exposure and hearing problems in service, his symptoms (including tinnitus), and history, and such reports must be specifically acknowledged and considered in formulating any opinions. Noise exposure during combat is presumed. If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so. 3. The AOJ should review the examination reports to ensure that they contain the information and opinions requested in this remand and are otherwise complete. 4. If the benefits sought on appeal are not granted to the Veteran's satisfaction, issue a supplemental statement of the case, before the claims folder is returned to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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). ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs