Citation Nr: 1319119	
Decision Date: 06/12/13    Archive Date: 06/21/13

DOCKET NO.  07-31 843	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for residuals of metallic fragments in the lungs. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

N. T. Werner, Counsel



INTRODUCTION

The Veteran had active service from April 1969 to April 1971, including combat service in the Republic of Vietnam.  His decorations include the Purple Heart Medal.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of a Department of Veterans Affairs (VA), Regional Office (RO), in Nashville, Tennessee.

This matter was previously before the Board in September 2011 at which time it was remanded for additional development.  It is now returned to the Board.  The Board finds that the agency of original jurisdiction substantially complied with the September 2011 remand orders, and no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); 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 (2002).

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 issue on appeal.


FINDING OF FACT

Resolving all reasonable doubt in the Veteran's favor, metallic fragments in the lungs are manifested as a result of combat while on active service.


CONCLUSION OF LAW

The criteria for the establishment of service connection for residuals of metallic 
fragments in the lungs have been met.  38 U.S.C.A. §§ 1101, 1110, 1111, 1154, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board grants service connection for the Veteran's residuals of metallic fragments in the lungs which represents a complete grant of the benefit sought on appeal.  As such, no discussion of VA's duty to notify and assist is necessary.

The Veteran seeks service connection for "metal in his lungs" which he indicates he has had ever since he sustained shell fragment wounds in combat while in the Republic of Vietnam.

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).  The second and third elements may be established by showing continuity of symptomatology.  Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (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."  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). 

Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77.  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. 

In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) (West 2002) and its implementing regulation, 38 C.F.R. § 3.304(d) (2012), are applicable.  This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence.  If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury.  Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012).  To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury.  Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89   (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).

To show a chronic disease in service requires a combination of manifestations sufficient to identify the disease, and sufficient observation to establish chronicity at the time.  If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptomatology after service is required for service connection in they are conditions listed at 38 C.F.R. § 3.309(a).  See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Disorders diagnosed after discharge may still be service connected if all of the evidence, including pertinent service records, establishes that the disorder was incurred in service.  38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

As to a current disability, X-rays of the chest taken in 2005 and 2006 as well as at the October 2011 VA examination confirm the presence of metallic foreign bodies over the right hemithorax.  Therefore, the Board finds that the record establishes a 
current disability.  See Davidson, supra; also see McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement of a current disability 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.")

As to an in-service incurrence of an injury, the Board first notes that the Veteran's decorations include the Purple Heart Medal.  Therefore, the Board finds that he is a combat Veteran and entitled to the presumptions found at 38 U.S.C.A. § 1154(b).  Moreover, the Board finds that the Veteran's claims regarding sustaining shell fragment wounds to the chest which made their way into his lungs is consistent with the circumstances, conditions, or hardships of his service.  Id.

In this regard, the Board notes that service treatment records show that, in May 1970, the Veteran was admitted to the hospital after sustaining multiple shrapnel wounds to his ears and right shoulder.  Moreover, according to a May 1970 narrative summary report, X-rays of the chest revealed multiple fragments in the soft tissue.  

Given the Veteran's combat presumption and the above objective medical evidence, the Board finds that the most competent and credible evidence of record establishes an in-service injury.  See Davidson, supra.  

As to a relationship between the in-service injury and the current disability, the October 2011 VA examiner opined that the Veteran had retained metal fragments in his body as a result of hostile fire while serving in the Republic of Vietnam.  This opinion is not contradicted by any other medical opinion of record.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions).  Given this opinion, the Board also finds that the most competent and credible evidence of record establishes a nexus between the claimed in-service injury and the present disability.  See Davidson, supra.  

In summary, based on the totality of the medical evidence, and resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence supports a grant of service connection for metallic fragments in the lungs for this combat Veteran.


ORDER

Service connection for residuals of metallic fragments in the lungs is granted.



____________________________________________
DEMETRIOS G. ORFANOUDIS
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs