Citation Nr: 1456586 Decision Date: 12/24/14 Archive Date: 01/02/15 DOCKET NO. 11-04 332 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for claimed headaches as the residual of a shrapnel wounds of the face. 2. Entitlement to service connection for other claimed residuals of shrapnel wounds of the face, to include short term memory loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and F.B. ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1959 to July 1962. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision in May 2010 by the RO. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration should take into consideration records in the VBMS and Virtual VA paperless claims processing system. The Veteran provided testimony from the RO by way of videoconference technology at a May 2013 hearing with the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The Board remanded the case in February 2014 for additional development of the record. In a June 2014 rating decision, the RO granted service connection for right and left knee arthralgia. In an August 2014 rating decision, the RO granted service connection for a residual scar of the left maxillary antrum and mild paresis of the left facial VII nerve. Each award represents a full grant as to these matters that were previously on appeal. Accordingly, these matters are no longer before the Board. The issue of entitlement to aid and attendance benefits has been raised by an April 2014 VA examination report, and the issue of service connection for an eye condition was previously referred to AOJ in February 2014 after it was raised in May 2013 hearing testimony. Neither has been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction and the matters are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). FINDINGS OF FACT 1. The currently demonstrated headaches are shown as likely as not to be due to an injury suffered by the Veteran during a period of active service. 2. The Veteran is not shown to have any additional residual disability of shrapnel wounds to the face, to include short term memory loss. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the Veteran, his disability, manifested by headaches is due to disease or injury that was incurred in service. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303 (2014). 1. The Veteran does not have a disability manifested by short term memory loss or facial shrapnel wounds residuals due to disease or injury that was caused in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5013, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). The duty to notify in this case was satisfied by a letter sent to the Veteran in October 2009. The claims were last adjudicated in August 2014. VA's duty to assist the Veteran in the development of the claim 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. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA examination and identified private treatment. The AOJ obtained VA examinations and additional VA and no VA medical records, as required by the February 2014 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In May 2013, the Veteran was afforded an opportunity to present testimony at a hearing before the Board. During the hearing, the undersigned Veterans Law Judge (VLJ) clarified the issues on appeal. The hearing focused on the elements necessary to substantiate his service connection claims and the Veteran through his testimony demonstrated that he had actual knowledge of the elements necessary to substantiate the claim for benefits. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2014). The Board can adjudicate the claims based on the current record. After review of the Veteran's statements and the medical evidence of record, no available outstanding evidence has been identified. For these reasons, no further assistance to the appellant is required. 38 C.F.R. § 3.159(c). II. Service connection Veterans are entitled to compensation from the VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after service 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). When a claimed disability is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 Fed.3d 1039 (Fed. Cir. 1994). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). A. Headaches Here, the Veteran reports being hit in the face with shrapnel during a training exercise and having residual headaches due to that injury. The Board acknowledges that the service treatment records are negative for complaints or findings referable to a shrapnel wound injury of the face or headaches. Nonetheless, the Veteran is competent to provide testimony and statements concerning factual matters of which he has firsthand knowledge (i.e., being present during a training exercise when shrapnel hit his face). In a February 2011 letter, a private physician noted the presence of residual shrapnel in the left maxillary region of the Veteran's face and opined that the Veteran's frequent headaches could be attributed to the retained foreign body. On VA examination in March 2014, it was noted that X-ray studies confirmed the presence of a metal fragment consistent with the reported history. The examiner stated that headaches could not be explained by such a minor injury localized to the area around the base of the left side of the nose. The Board recognizes that the Veteran is competent to attest to what he experiences as it relates to his in-service experiences. Layno v. Brown, 6 Vet. App. 465, 469 (1994). On this record, the Veteran's lay statements are found to be credible for the purpose of establishing that he developed headache manifestations as the result of the shrapnel wound injury sustained during service. These assertions are supported by the X-ray findings showing the presence of a residual metal fragment and the February 2011 medical statement indicating that the Veteran's headaches could be attributed to the retained foreign body. Based on a review of the entire record, the Board finds the evidence to be in relative equipoise in showing that the current headaches as likely as not are due to the residual retained metallic fragment due to a wound sustained during the Veteran's period of active service. In resolving all reasonable doubt in the Veteran's favor, service connection for headaches, is warranted. B. Residuals of Shrapnel Wounds to the Face, to include short term memory loss The Veteran seeks service connection for other residuals of a shrapnel wound of the face, to include short term memory loss. As noted, the Veteran already has been granted service connection for a residual scar and mild paresis of the left VII facial nerve identified as being due to claimed wound sustained during service. However, other residuals except headaches have not been identified in this case. The Veteran was afforded a VA examination in March 2014. The examiner reviewed the claims file and performed an in-person examination. The examination revealed a tiny well-healed puncture wound scar that was not painful or unstable. No other scars or functional impact were identified. On VA mental health examination in April 2014, the Veteran denied having significant problems related to memory loss, attention, or concentration impairment. He indicated that he first noticed the onset of short term recall problems at the age of 60 when he suffered significant cardiac problems. The examiner stated that it would not follow that the Veteran would have first noticed memory problems decades after the claimed in-service event. Additionally, the examiner added that there were multiple possible underlying etiologies for the Veteran's retrieval problems including normal aging, depression, anxiety, obstructive sleep apnea, medication side effects, and vascular factors. On VA examination in July 2014, the Veteran denied having any muscle impairment related to the in-service event. The examiner identified mild paresis of the left VII facial nerve as evidenced by asymmetry when smiling consistent with the in-service event. There was no additional dysfunction or nerve injury. While the Veteran is shown to currently experience some memory loss, he reported first noticing this at a time many years after service in connection with cardiac problems. As such, the Board finds no basis for linking the onset of any memory problem to an injury sustained during service, as noted the VA examiner in his April 2014 opinion. On this record, the Board finds that service connection for other residuals of a shrapnel wound of the face to include memory loss must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine cannot be applied. 38 U.S.C.A. § 5107(b); Gilbert v, Derwinksi, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for headaches is granted. Service connection for other claimed residuals of a shrapnel wound of the face, to include short term memory loss, is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs