Citation Nr: 1315802	
Decision Date: 05/14/13    Archive Date: 05/15/13

DOCKET NO.  07-20 244	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE
 
Entitlement to service connection for residuals of a left foot shrapnel fragment wound.
 
 
REPRESENTATION
 
Appellant represented by:  The American Legion
 
 
ATTORNEY FOR THE BOARD
 
J. Hager, Counsel
 
 

INTRODUCTION
 
The Veteran served on active duty from April 1969 to April 1971.  His decorations include the Purple Heart.
 
This matter initially came before the Board of Veterans' Appeals (Board) from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  In that decision, the RO, among other things, denied entitlement to service connection for residuals of a left foot shell fragment wound.
 
In February 2011, the Board remanded the claim to the RO, via the Appeals Management Center (AMC) for additional development.  For the reasons stated below, the RO/AMC complied with the Board's remand instructions.  Stegall v. West, 11 Vet. App. 268, 271 (1998).
 
 
FINDING OF FACT
 
The Veteran has residual left foot shrapnel wound scars, but not retained metallic fragments.
 
 
CONCLUSION OF LAW
 
Residual left foot shrapnel wound scars were incurred in service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).
 
 

REASONS AND BASES FOR FINDING AND CONCLUSION
 
VCAA
 
The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  VA notified the Veteran in June 2002 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined.  The case was most recently readjudicated in February 2012.
 
VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations.  There is no evidence that additional records have yet to be requested, or that additional examinations are in order.  Pursuant to the Board's February 2011 remand, a May 2011 VA examination was conducted with regard to left foot shrapnel residuals.  In addition, the Virtual VA file reflects that VA muscle injury and scar examinations were conducted.  The information from these examinations enables the Board to determine that entitlement to service connection is warranted for left foot shell fragment wound scars, but not for retained metallic fragments.  The examinations are adequate and the RO/AMC thus substantially complied with the Board's February 2011 remand instructions.   Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) ("It is substantial compliance, not absolute compliance, that is required" under Stegall).
 
The Board will therefore proceed to the merits of the appeal.
 
Analysis
 
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).   Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).
 
In this case, the Veteran claims that he has current left foot disability secondary to shell fragment wound sustained in-service.  The evidence shows that the Veteran was awarded the Purple Heart as well as the Combat Infantryman's Badge while serving in the Republic of Vietnam.  These awards are indisputable proof that the appellant engaged in combat with the enemy.  VA Adjudication Manual Rewrite, M21-1MR, Part IV, Subpart ii, 1.D.13.d (June 6, 2011).  

The provisions of 38 U.S.C.A. § 1154(b) reduce, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service.  Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996).  Lay evidence of incurrence of injury is accepted as sufficient proof of such incurrence if consistent with the circumstances, conditions, or hardships of such service, notwithstanding lack of official records.  Id.  Moreover, the RO has already granted entitlement to service connection for right calf and left thigh shell fragment wounds relating to the combat incident described by the Veteran.  The Board therefore accepts the Veteran's statements indicating that he suffered shell fragment wounds in the same combat incident, even though the service treatment records indicated only wounds to the thigh and legs.  The only remaining question is whether he has a current left foot disability residual to these shell fragment wounds.
 
In its February 2011 remand, the Board noted that a June 1973 VA physical examination revealed a 3-inch scar on the lateral side of the left foot, and another small 1.5 inch scar just above the anterior surface of the left ankle.  The June 1973 X-ray slip reflects the typed entry, "right thigh, right leg, & right foot," but a handwritten entry in the upper right corner notes the right leg, left thigh and foot.  The X-ray report indicated that there was evidence of multiple small metallic fragments in the soft tissues, but did not specify in which joints, so the inference is all of them.  The June 1973 VA examiner noted two left foot scars and indicated that they were non-symptomatic and non-disabling.  The only diagnosis was residuals of shell fragment wounds right leg and left thigh.
 
In view of the above evidence, and to determine any current left foot residuals, the Board instructed that a VA examination be conducted.  In May 2011 a VA examiner reviewed the evidence and examined the Veteran.  On examination, there were two left foot scars, one tender and one non-tender.  The Board notes that a November 2011 VA scar examination report in the Virtual VA file discussed below also indicates that there was a painful left foot scar.
 
The May 2011 VA examiner noted a lack of notations in the service treatment records for a left foot shrapnel wound, and the fact that the Veteran checked the box indicating that he did not have and had never had foot trouble on the separation report of medical history.  The examiner noted, "He does have two scars on his foot," but repeated that there were no service records indicating shrapnel to the left foot.  The examiner also noted that the Veteran stated that he had no foot trouble at separation.  Consequently, the examiner concluded that, "I would state that I cannot resolve this issue without resort to speculation."  

Reading the VA examination report as a whole and in the context of the evidence of record, the Board finds that it supports a grant of entitlement to service connection for residual left foot shell fragment wound scars.  Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012).  The VA examiner was reluctant to come to a definitive conclusion as to whether the scars were residual to the shell fragment wounds because of the lack of a notation of a foot shrapnel injury in the service treatment records.  The rationale underlying the combat presumption, however, is that during combat operations there is not always sufficient opportunity to prepare thorough medical records.  Consequently, the VA examiner's reasoning was flawed in this respect.
 
The above discussion reflects that there is evidence of two left foot scars, as well as competent and credible testimony by the Veteran that he sustained shell fragment wounds to the left foot in combat.  The evidence is approximately evenly balanced as to whether these scars are residual to a left foot shell fragment wound.  The reasonable doubt created by this approximately evenly balanced evidence must be resolved in favor of the Veteran.  Entitlement to service connection for residual left foot shell fragment wound scars is therefore warranted.  38 U.S.C.A. § 5107(b).
 
As to whether the Veteran is entitled to service connection for metallic fragments residual to left foot shell fragment wound, the May 2011 VA examiner did not conduct left foot X-rays as instructed in the Board's February 2011 remand.  Virtual VA records, however contain November 2011 VA muscle and scar examination reports.  Significantly, a left foot X-ray conducted as part of the November 2011 muscle injury examination revealed normal findings, and there is no evidence conflicting with this finding.  The evidence thus reflects that there are no metallic fragments in the Veteran's left foot, residual to a shell fragment wound or otherwise.  Thus, entitlement to service connection must be denied for such residuals in the absence of current disability.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  As the preponderance of the evidence is against this aspect of the claim, the benefit of the doubt doctrine is not applicable.  38 U.S.C.A. § 5107(b).

For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran has residual left foot shell fragment wound scars, and the preponderance of the evidence is against finding that he has retained metallic fragments due to a left foot shell fragment wound.  Entitlement to service connection for scars, but not metallic fragments, residual to left foot shell fragment wound, is therefore granted.
 
 
ORDER
 
Entitlement to service connection for left foot shrapnel fragment wound scars is granted.


____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs