Citation Nr: 1325502 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 08-24 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residuals of a shell fragment wound of the right knee other than scars. 2. Entitlement to service connection for residuals of a shell fragment wound of the right foot other than scars. 3. Entitlement to service connection for residuals of a shell fragment wound of the right fourth finger. 4. Entitlement to service connection for residuals of a shell fragment wound of the lower back. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to November 1967. These matters are before the Board of Veterans' Appeals (Board) on appeal of a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2010 the Veteran presented testimony before the undersigned Veterans Law Judge in a hearing at the RO. A transcript of the hearing is associated with the claims file. When this case was most recently before the Board in February 2013, it was decided in part and remanded in part. The record before the Board consists of the Veteran's paper claims files and an electronic record known as Virtual VA. FINDING OF FACT With the exception of scars of the right knee and right foot, no residuals of shell fragment wounds (SFWs) of the right knee, right foot, right fourth finger or lower back have been present during the period of the claims. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a shell fragment wound of the right knee other than scars are not met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for service connection for residuals of a shell fragment wound of the right knee other than scars are not met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 3. The criteria for service connection for residuals of a shell fragment wound of the right fourth finger are not met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 4. The criteria for service connection for residuals of a shell fragment wound of the lower back are not met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in letters mailed in January 2007 and February 2007, prior to the initial adjudication of the claims. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, as well as identified VA medical treatment records, have been obtained. Neither the Veteran nor his representative has identified any outstanding, existing evidence that could be obtained to substantiate the claims. The Board is also unaware of any such evidence. VA provided the Veteran with several VA examinations which were conducted to determine the etiology of his claimed disabilities. The reports of the March 2012 medical examination and the April 2013 addendum are adequate for adjudication purposes. They show that the examiner reviewed the Veteran's pertinent history and examined the Veteran. In addition, in the addendum requested by the Board, the examiner complied with the Board's directive to assume that the history provided by the Veteran is accurate. The examiner properly supported his conclusions. The Board also finds that there has been substantial compliance with its prior remands. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). II. Legal Criteria Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service, even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). The provisions of 38 U.S.C.A. § 1154(b) do not establish a presumption of service connection but ease the 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); Caluza v. Brown, 7 Vet. App. 498, 507 (1995). "Section 1154(b) provides a factual basis upon which a determination can be made that a particular . . . injury was incurred . . . in service but not a basis to link etiologically the [injury] in service to the current condition." Cohen v. Brown, 10 Vet. App. 128, 138 (1997) (citing Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Caluza. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 (West 2002); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54 . III. Factual Background and Analysis Service personnel records reveal that the Veteran served on active duty in the Army from November 1965 to November 1967. He served in the Republic of Vietnam for approximately 11 months from December 1966 to November 1967. The Veteran's DD 214 indicates that he was awarded the Combat Infantryman Badge (CIB); however, the typeface on the original carbon copy contained in the record is noticeably different from all other information contained on this form. His DD 214 and other service personnel records reveal that the Veteran's Military Occupational Specialty (MOS) was as a pay specialist and that he served in an administration company; this MOS is not eligible to be awarded the CIB. A copy of a June 1967 Army special order letter was submitted by the Veteran. This letter indicates that he was awarded the CIB. His name and service number are indicated, but his MOS and unit of assignment are inconsistent with all other service personnel records contained in the record. Close review of the evidence of record reveals significant irregularities in the evidence related to the Veteran's award of the CIB. Nevertheless, for the purposes of this decision, the Board has accepted the Veteran's account of incurring SFWs as the result of mortar rounds during service in Vietnam. In January 2007, the Veteran submitted his original claim for entitlement to service connection which included a claim for service connection for the residuals of a shell fragment wound of the low back. In February 2007, the Veteran submitted a claim of entitlement to service connection, in pertinent part, for residuals of shell fragment wounds of the right knee, right foot and right 4th finger. He wrote that he was wounded in March 1967 in the low back and in July 1967 in the right knee, right foot and right finger. Again, the Board accepts the Veteran's assertions that he incurred SFWs as he contends. That an injury occurred in service alone is not enough; there must be a disability resulting from that injury. Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1993). "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present 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 even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). For the reasons explained below, the Board has determined that the preponderance of the evidence is against the Veteran's claims for service connection. The service treatment records are negative for evidence of any SFW of the right knee, right foot, right hand, or low back. A December 1965 service treatment record reveals that the Veteran was seen at the podiatry clinic for an anterior tibial strain of the right foot. He was treated with an ace bandage and excused from running and marching for one week. This was one month after the Veteran entered service and prior to his service in Vietnam when he claims he incurred a SFW of the right foot. A May 1966 service treatment record reveals that the Veteran was treated with medication for a large wart on his right index finger. Service treatment records dated in September and October 1967, during the period of time when the Veteran was in Vietnam, indicate treatment for complaints of anterior chest pain with tenderness. However, no SFW is indicated. In November 1967, the Veteran underwent a separation examination. Clinical evaluation disclosed that the Veteran's spine, upper extremities, lower extremities, and feet were normal. On the accompanying report of medical history, the Veteran indicated a history of pre-service fracture of the left arm. He specifically denied having back pain, knee trouble, or foot trouble. No history of SFW was reported or noted on separation examination. The evidence establishes that the Veteran was a pay clerk in an administration company during his period of service in Vietnam. In August 2007, he submitted an unsigned copy of a letter from a service buddy. This letter indicates that the two were pay clerks and would go into the field to pay troops in the field. This letter indicates that the Veteran's received minor injuries of his arm and back as a result of incoming enemy mortar rounds during one of these field runs. With this letter the Veteran's submitted a photo of himself in Vietnam with his right forearm bandaged, along with photos of medical facilities where he claims he was treated for his wounds. In March 2010, the Veteran presented sworn testimony before the undersigned Veterans Law Judge. He testified that his duties as a pay clerk involved occasional trips to interact with troops in the field and that during some of these trips he was subjected to enemy mortar attacks and incurred SFWs of his low back, right knee, right foot, and right 4th finger. He further testified that the wounds were minor, often not being noticed until days later, and were treated by field medics or a field hospital with no records being kept. He further stated that although he was eligible for a Purple Heart, he did not pursue it. A March 2010 VA outpatient treatment record indicates that the Veteran was being seen for "verification of wounds/injuries sustained in Vietnam for hearing coming up." The examination revealed that the upper lumbar spine was tender to palpation with decreased range of motion. Straight leg testing was negative bilaterally. The right 4th finger had no swelling, erythema, or gross deformity; it was tender to palpation of the proximal interphalangeal joint and the Veteran was unable to make a tight fist. Examination of the right knee revealed no swelling, erythema or gross deformity; decreased range of motion and tenderness to palpation were noted along with a well healed scar. Examination of the right foot revealed no swelling, erythema or gross deformity. Range of motion was good, but there was tenderness to palpation along with a well healed hypopigmented scar over the dorsal aspect of the right foot. The impression was "complaints of chronic pain right hand, low back, right knee/foot . . . secondary to wounds sustained in Vietnam." In October 2010 a VA Compensation and Pension examination of the Veteran was conducted. The examiner reviewed the evidence of record. On the general medical examination report, the examiner stated that the examination of the spine, feet, hands, and extremities revealed normal findings without any noted disabilities. On the hand portion of the examination, the Veteran reported a history of sustaining a wound of the right finger in July 1967 with minor wound care during service. There was no objective evidence of pain on motion of any of the fingers of the right hand including after repetitive motion. The diagnosis was, "traumatic injury right hand with residuals. Specifically, right hand pain was indicated along with decreased mobility, dexterity and difficulty lifting and reaching. However, the examination did not reveal any abnormalities in the range of motion or strength of the right hand for any of the fingers of the right hand. On examination of the right knee the Veteran again reported a wound of the right knee during service. He reported having symptoms of deformity, instability, pain, weakness, stiffness, incoordination, locking, swelling, tenderness, and giving way. However, none of these reported symptoms was noted by the examiner on objective examination. Range of motion testing of the right knee revealed flexion to 130 degrees and normal extension to 0 degrees. There was no objective evidence of pain on repetitive motion testing. X-ray examination of the right knee revealed normal findings. On examination of the right foot the Veteran reported symptoms of pain while standing, heat while walking, stiffness while standing, and lack of endurance with walking. Objective physical examination did reveal the presence of a hypopigmented patch on the dorsal aspect of the right foot. However, there was no objective evidence of painful motion, swelling, tenderness, instability, weakness, or abnormal weight bearing. Gait was normal and X-ray examination of the right foot revealed normal findings. On the spine examination the Veteran reported an in-service shrapnel wound of the lower right back. He reported current symptoms of numbness, paresthesias, leg and foot weakness, and unsteadiness. Specifically, numbness of the right leg below the knee and the right foot below the second and third toes was reported; the examiner indicated that the etiology of these symptoms was unrelated to the claimed SFW. The Veteran reported symptoms of low back pain and stiffness which he indicated existed since the reported injury in 1967. He specifically reported having symptoms of spasm, but there was no evidence of spasm on objective examination. Moreover, objective examination revealed that the Veteran's spine was essentially normal with respect to range of motion, strength, and neurologic testing. The diagnosis was lumbosacral strain based upon the Veteran's reported symptoms of low back pain. In November 2011, a VA physician expressed medical opinions based upon the findings of the October 2010 Compensation and Pension examinations. However, the opinions expressed did not generally acknowledge the Veteran's reports of in-service shrapnel wounds; accordingly these opinions are inadequate. In March 2012 another series of VA Compensation and Pension examinations of the Veteran were conducted. On the spine examination, a history of mild lumbar degenerative disc disease was noted. The Veteran again reported a history of shrapnel wound of the lower back during service along with unresolved low back pain dating from that point to the present. This time the Veteran denied having weakness, numbness, or radicular pain of the lower extremities. Physical examination of the Veteran's spine revealed essentially normal findings with respect to range of motion, strength, and neurologic testing. The examiner's medical opinion was that the claimed low back disability was less likely than not the result of the reported in-service injury. The examiner stated that the, "Veteran had a soft tissue shrapnel injury to the back in service which was treated appropriately and I would not expect sequelae from this 40 years later. He is symptomatic of mild age related lumbar degenerative disc disease." On examination of the right hand the Veteran reported a shrapnel wound of the right ring finger with occasional pain dating from service to the present. Physical examination revealed essentially normal findings with respect to the right hand. Some pain on movement of the right ring finger was noted along with tenderness to palpation. However, there was no abnormality related to grip strength of the right hand. The examiner's medical opinion was that the claimed disability of the right ring finger was less likely than not related to the reported wound during service. The examiner specifically indicated that the Veteran was, "subjectively symptomatic of pain but has a normal hand examination." On examination of the right knee, the examiner noted a history of mild degenerative joint disease of the knees. Again the Veteran reported a shrapnel wound of the right knee with occasional pain dating from service to the present. Physical examination of the right knee revealed essentially normal findings. X-ray examination revealed degenerative arthritis of both knees. The examiner's medical opinion was that the Veteran had mild age-related degenerative joint disease of the knees which was unrelated to the in-service soft tissue shrapnel injury of the right knee during service 40 years earlier. On examination of the right foot, the Veteran reported the in-service shrapnel wound of the right knee with occasional pain dating from service to the present. Physical examination of the right foot revealed essentially normal findings with subjective symptoms of tenderness. The examiner's medical opinion was that the claimed disability was unrelated to the reported SFW during service, and that, "aside from inconsistent subjective tenderness around his well healed shrapnel scar he has a normal examination" of the right foot. In April 2013, the examiner who conducted the March 2012 VA examinations reviewed the record and accounted for the Veteran's reported history of the in-service shrapnel wounds. The examiner indicated that there were no objective findings of the claimed residual disabilities, and that the medical opinions remained the same. A November 2012 VA outpatient treatment record reveals that the Veteran had complaints of chronic right knee and right foot pain. He reported a medical history of in-service shrapnel wounds of the low back, right foot, right knee and right 4th finger. Physical examination revealed: tenderness of the lumbar spine with decreased range of motion, tenderness of the right foot without any swelling, tenderness of the tight knee with no swelling and good range of motion, and pain and swelling of the right ring finger with decreased range of motion. The assessment was chronic intermittent low back pain, right knee pain, right foot pain and traumatic degenerative joint disease. Accompanying X-ray reports note the presence of mild degenerative arthritis of the right knee ; mild degenerative spurring of the vertebral bodies and mild narrowing of the L4-5 disc space; degenerative arthritis of the thumb, third, forth, and fifth fingers of the right hand; and hammer toe deformities of the toes of the right foot. The Board affords the March 2012 VA examination reports and the April 2013 addendum significant probative weight. In this regard, the Board notes that in addition to examining the Veteran, the examiner considered the Veteran's pertinent medical history and properly supported the conclusions reached. The Board acknowledges that the Veteran incurred the shrapnel wounds during service as he claims. In fact, he has already been granted service connection for scars of his right knee and right foot due to those injuries. What is at issue is whether the Veteran has any other current residuals of the shell fragment wounds incurred during service. With respect to the right knee, the Veteran has a current diagnosis of mild degenerative joint disease. The medical opinion expressed on the 2012 Compensation and Pension examination report is that the Veteran has age related arthritis of the knees which is unrelated to the soft tissue shrapnel wound of the right knee incurred during service. To the extent that the March 2010 VA treatment records relate the disability to the reported SFW in-service, the Board has found the report less probative than the March 2012 examination report and April 2013 addendum because the March 2012 examiner reviewed the Veteran's pertinent history and properly supported the conclusions reached. The March 2010 treatment record does not identify any specific pathology accounting for the pain or otherwise support the conclusion reached. The November 2012 treatment record merely transcribes the Veteran's reported history of an in-service SFW without giving an etiology opinion. The evidence of record reveals that the Veteran has age related degenerative joint disease of the right knee which the most probative medical evidence indicates is unrelated to the SFW incurred during service. With respect to the right foot, the March 2012 examination did not show a current disability. The examiner stated that the claimed disability was unrelated to the reported SFW during service, and that "aside from inconsistent subjective tenderness around his well healed shrapnel scar he had a normal examination" of the right foot. To the extent that the November 2012 VA X-ray report reveals hallux valgus and hammer toe deformities of the right foot, there is no medical opinion linking these disabilities to service or the SFW incurred during service. With respect to the claim for service connection for the residuals of a SFW of the right forth finger, the March 2012 VA examination report and opinion indicate that the claimed disability of the right ring finger was less likely than not related to the reported wound during service. The examiner specifically indicated that the Veteran was "subjectively symptomatic of pain but has a normal hand examination." No residual SFW scars on the right hand are noted in any of the evidence of record. To the extent that the November 2012 VA X-ray report revealed the presence of arthritis in the right hand, it was noted in the thumb and three fingers, and not specifically associated with the reported site of the in-service SFW. No medical opinion links the current arthritis of the thumb and fingers of the right hand to service or the SFW incurred during service. Finally, with respect to the claim for service connection for the residuals of a SFW of the low back, there is evidence of record contained in the 2012 Compensation and Pension examination report that the Veteran has mild age related lumbar degenerative disc disease. No residual SFW scars of the low back are noted in any of the evidence of record. The November 2012 VA X-ray report confirms the presence of degenerative spurring of the lumbar spine along with disc space narrowing. No credible evidence links the current low back disability to service or the SFW incurred therein. In sum, with the exception of the already service-connected scars, the evidence fails to show that the Veteran has any residuals of the shell fragment wounds at issue. Therefore, these claims must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to these claims because the preponderance of the evidence is against the claims. ORDER Service connection for residuals of a shell fragment wound of the right knee other than scars is denied. Service connection for residuals of a shell fragment wound of the right foot other than scars is denied. Service connection for residuals of a shell fragment wound of the right fourth finger is denied. Service connection for residuals of a shell fragment wound of the lower back is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs