Citation Nr: 1324442 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 10-10 026 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for residual scars from fragment wounds to the back. 2. Entitlement to service connection for a low back disorder other than residual scars from fragment wounds. 3. Entitlement to service connection for a left shoulder disorder other than the service-connected left posterior shoulder scar. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from February 1965 to April 1991. He is the recipient of the Purple Heart and Combat Infantry Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction of the Veteran's claims file was subsequently transferred to the RO in Albuquerque, New Mexico. In his substantive appeal, the Veteran requested a Board hearing at the local RO. A hearing was scheduled in March 2013; however, the Veteran failed to appear and has not filed a motion requesting a new hearing. Therefore, his request for a Board hearing is considered withdrawn. 38 C.F.R. § 20.704(d) (2012). The Board observes that the matter of entitlement to service connection for residual scars from fragment wounds to the left shoulder had also been perfected for appeal. However, in a January 2012 rating decision, the RO granted service connection for left posterior shoulder scar (previously left shoulder condition/fragment wounds to shoulder). As this is a full grant with respect to this matter, such issue is no longer in appellate status. The United States Court of Appeals for Veterans Claims (Court) has held that a claimant's identification of the benefit sought does not require any technical precision. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) ("It is the pro se claimant who knows that symptoms he is experiencing and that are causing him disability...[and] it is the Secretary who know the provisions of title 38 and can evaluate whether there is a potential under the law to compensate an averred disability based on a sympathetic reading of the material in a pro se submission.") A claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (to the effect that, when determining the scope of a claim, the Board must consider "the claimant description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim"); Robinson v. Nicholson, 21 Vet. App. 545, 552 (2008) (to the effect that the Board is required to consider all issues raised either by the claimant or the evidence of record); 38 C.F.R. § 3.159(c) (2012). In the instant case, the RO has characterized the issues on appeal as fragment wounds to the left shoulder and back and have primarily addressed whether the Veteran had any residual scars from such injuries. However, the Veteran has primarily reported symptoms of pain and functional limits with respect to his left shoulder and back. As such, for clarification purposes, and in accordance with the case law discussed above, the Board had recharacterized the issues on appeal as set forth on the title page of this decision. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. The issues of entitlement to service connection for low back and left shoulder disorders (other than are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT For the entire appeal period, the Veteran does not have any residuals scars from fragment wounds to the back. CONCLUSION OF LAW The criteria for service connection for residual scars from fragment wounds to the back have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). With respect to the issue being decided herein, the Veteran was sent an April 2009 letter that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records as well as post-service reports of private treatment. The Board observes that the Veteran submitted authorization for records in April 2009 so that the RO could obtain records from HI Desert Physical Rehabilitation Group, Robert Bush Naval Hospital and Killeen, Texas, Family Clinic. The Veteran also identified Fort Carson Army Hospital, but this facility was noted to pertain to his left foot and, in turn, these records are not pertinent to the issue on appeal. In November 2009, due to a change in law, the RO requested that the Veteran submit a new authorization form so as to allow VA to obtain such records. However, to date, he has not submitted any further authorization. The duty to assist is not a one-way street. If a Veteran wishes help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Therefore, the Board finds that VA has satisfied its duty to assist in this regard. Moreover, the Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. The Veteran was afforded a VA examination in December 2011. As the examination was conducted by a competent clinician who considered the Veteran's claims file and medical history in the report and provided an etiological opinion, complete with rationale, the Board finds that the examination and opinion is adequate to adjudicate the Veteran's claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the 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. 183 (2002). Analysis The Veteran is seeking service connection for residual scars from fragment wounds to the back. 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, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's DD 214 and service personnel records show that the Veteran was the recipient of a Purple Heart and Combat Infantry Badge. As such, the provisions of 38 U.S.C.A. § 1154(b) are applicable in this case, which state, in pertinent part, that in any case where a Veteran is engaged in combat during active service, lay or other evidence of service incurrence of a combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the Veteran. However, the provisions of 38 U.S.C.A. § 1154(b) do not establish a presumption of service connection but ease a 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). Stated in a more specific manner, a combat Veteran's assertions of an event during combat are to be presumed if consistent with the time, place and circumstances of such service. 38 U.S.C.A. § 1154(b); see also Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). The provisions of 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). The provisions of 38 U.S.C.A. § 1154(b) do not establish service connection for a combat Veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran asserts that he suffered from fragment wounds during combat operations in Vietnam. His service personnel records confirm that in August 1969, the Veteran did suffer fragment wounds to the upper back and shoulder. Again, under the provisions of 38 U.S.C.A. § 1154(b), the Veteran's statements are considered sufficient proof of such incurrence during service. Thus, the main question in this case is whether the Veteran has any residual scars from the fragment wounds. To this end, the Veteran was afforded a VA examination in December 2011. The claims file was reviewed. After examining the Veteran and reviewing the claims file and electronic record, the examiner found that the Veteran did not have shrapnel wounds to the back. Moreover, private treatment records associated with the claims file that address the Veteran's complaints of low back pain are also silent with respect to any residuals scars. Therefore, based on the evidence of record, the Board finds that a preponderance of the competent medical evidence is against a finding that, for the entire appeal period, the Veteran has residual scars from fragment wounds to the back. Significantly, the December 2011 VA examination determined that the Veteran did not have any shrapnel wounds to the back. Given that the claims file was reviewed by the examiner and the examination report sets forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examination to be sufficient and of high probative value. There is no other medical opinion of record to refute this opinion. The Court has indicated that in the absence of proof of a present disability, there can be no valid claim for service connection as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007) (the current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim). The Board observes that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Citing Buchanan and Jandreau, the Federal Circuit recently reiterated that it had previously consideration and explicitly rejected the view that medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically in Jandreau, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit commented that competence to establish a diagnosis of a condition can exist 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. Similarly, the Court has held that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). When applying the case law discussed above, here, the Veteran is competent to describe symptoms and to report a continuity of symptoms since service. Although a scar is capable of lay observation, the Veteran has not provided any lay evidence of actual scarring on his back. Rather, he has primarily reported musculoskeletal back pain, which is addressed further in the Remand section below as this symptom is more of an internal process that requires further development. Thus, the Board must rely on the December 2011 VA examination that clearly found there was no evidence of fragment wounds to the back. In conclusion, the preponderance of the evidence is against service connection for residual scars from fragment wounds to the back. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Service connection for residual scars from fragment wounds to the back is denied. REMAND Unfortunately, with respect to the remaining issues on appeal, the Board finds that further development is necessary. Although the Veteran was afforded a VA examination in December 2011, the examination report primarily addressed the issues pertaining to residuals scars of the left shoulder and back. Although the examiner did perform range of motion testing of the left shoulder, as opposed to the right shoulder, no diagnosis was made and it does not appear that any x-rays were taken. Moreover, no orthopedic findings were made with respect to the back. Again, given the Veteran's combat service, the provisions of 38 U.S.C.A. § 1154(b) apply and the Veteran's statements are considered sufficient proof as to any injuries suffered to his left shoulder and back during combat operations. Further, service treatment records document that the Veteran was involved in a motor vehicle accident in November 1990 and suffered a low back strain. In his April 1991 medical history, the Veteran reported recurrent back pain. Importantly, in his statements of record, the Veteran reported left shoulder and back pain that had continued off and on since his retirement. Given the incidents in service, the Veteran should be afforded a VA examination to determine whether he has any current left shoulder and back disabilities other than residuals scars related to his service. 38 C.F.R. § 3.156; see McLendon v. Nicholson, 20 Vet. App. 79 (2006). Moreover, in light of the need to remand for a VA examination, the agency of original jurisdiction (AOJ) should again contact the Veteran and request authorization for HI Desert Physical Rehabilitation Group, Robert Bush Naval Hospital and Killeen, Texas, Family Clinic so that these treatment records may be obtained. The AOJ should also request that the Veteran identify any other VA and non-VA treatment he has received for his left shoulder and back disabilities. Accordingly, the case is REMANDED for the following action: 1. The AOJ should contact the Veteran and request authorization so that treatment records may be obtained from HI Desert Physical Rehabilitation Group, Robert Bush Naval Hospital and Killeen, Texas, Family Clinic. The RO should also request that the Veteran provide information with respect to any other VA and non-VA treatment he has received for his left shoulder and back disorders. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining any outstanding treatment records, the Veteran should be scheduled for an appropriate VA orthopedic examination to determine the etiology of any current left shoulder and back disorders other than residuals scars from fragment wounds. It is imperative that the claims file be made available to the examiner for review in connection with the examination, to specifically include these remand instructions. All medically necessary tests should be performed. After reviewing the claims file and examining the Veteran, the examiner should clearly identify all disorders of the left shoulder and back (other than scars) and offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that any diagnosed left shoulder disorder and/or back disorder are causally related to the Veteran's service, to include any injury suffered during his combat service in Vietnam and/or as a result of the November 1990 motor vehicle accident. A detailed rationale for all opinions expressed should be provided. In proffering his opinion, the examiner should address the service treatment records documenting the November 1990 motor vehicle accident and assessment of low back strain as well as the April 1991 medical history showing complaints of recurrent back pain. The examiner should specifically address the lay evidence concerning injuries in service and symptoms of pain that have continued to the present. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs