Citation Nr: 1510490 Decision Date: 03/12/15 Archive Date: 03/24/15 DOCKET NO. 13-07 313 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for residuals of injury to the right knee. 2. Entitlement to service connection for residuals of a gunshot wound injury to the right hip. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran had active service with the United States Army from October 1950 to February 1951. He had active service with the United States Air Force from July 1951 to July 1955. This matter comes before the Board of Veterans' Appeals (Board) from a May 2012 RO decision. The Veteran provided sworn testimony in support of his appeal during a hearing before the undersigned Veterans Law Judge in August 2013. In October 2013, the Board remanded the appeal for further evidentiary development. Such development having been satisfactorily accomplished, the matter is once again before the Board for appellate review. In May 2012, the Veteran submitted a claim for entitlement to service connection for a disability involving his left ankle. Although the RO provided the Veteran with a letter explaining the VA's duty to assist the Veteran in relation to this claim in May 2012, no other action has been taken on this claim by the RO. Therefore, the Board does not have jurisdiction over it, but it is referred to the RO for appropriate action. 38 C.F.R. § 19.9(b). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's right knee and right hip were normal upon clinical examination in 1955. 2. No nexus between the currently-shown right knee arthritis and service is established. 3. No current disability involving the right hip is shown. CONCLUSIONS OF LAW 1. Service connection for residuals of injury to the right knee is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014). 2. Service connection for residuals of a gunshot wound injury to the right hip is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is seeking service connection for residuals of a gunshot wound injury to his right hip and for residuals of injury to his right knee. Duties to notify and assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). The duty to notify was satisfied prior to the RO decision by letter dated in September 2011 to the Veteran that informed him of his and VA's duty for obtaining evidence. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The letter also provided notice of information and evidence needed to establish disability ratings and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). During the August 2013 hearing on appeal, the Veteran was given the opportunity under oath to express his contentions, and the reason for the denial of his claim was explained to him. Additional sources of evidence which might support his appeal were explored and discussed. See Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010). VA also has a duty to assist a Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that following the prior remand all potential development as to the issues decided herein has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains relevant service treatment records, VA treatment records, private medical records, a pertinent VA examination report, and a medical opinion provided by a physician with the Veterans Health Administration. Although the Veteran's claims file contains what appear to be complete service records reflecting his period of Air Force service, the National Personnel Records Center has certified that most of the records reflecting his brief period of Army service were destroyed by fire. A couple of these records were saved in the fire, but were then afflicted with mold. Nevertheless, photocopies of these records were obtained and have been included into his electronic claims file. The VA's Records Management Center has certified that all of the Veteran's available service records have been uploaded into his electronic claims file. The United States Court of Appeals for Veterans Claims (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The Board's analysis has been undertaken with this heightened duty in mind. The Board therefore finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims decided herein and no further assistance to develop evidence is required. Analysis In deciding the Veteran's claim, 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C.A. §§ 1110, 1131. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. When a chronic disease such as arthritis becomes manifest to a degree of 10 percent within one year of the veteran's discharge from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the veteran's period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. During the August 2013 hearing, the Veteran testified that he sustained two separate injuries in two separate incidents which both occurred during basic training of his first period of service. The first injury involved a gunshot wound to the Veteran's right hip where "the fella behind me had chambered a round," which accidently discharged during target practice, hitting the Veteran. The Veteran testified that he lost consciousness and was taken to the hospital where he was given a couple of stitches and some aspirin. He does not claim any particular current disability other than a small scar as a residual of this accident. The second incident he related during the hearing involved his right knee. He described an exercise where he was in an assault boat crossing a river, and an explosion was deliberately set underneath the boat for purposes of training. He asserts that he injured his right knee during this explosion. He did not testify as to whether he received any medical care at the time of the injury. He testified that he had experienced swelling and pain in the right knee which had gotten progressively worse since that injury, however. As noted above, the Veteran's Army records are unavailable, other than his DD Form 214 and reports indicating that he was treated for an ingrown toenail and upper respiratory infection in December 1950. Thus, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare. In this case, absent any contemporaneous corroborating or contradictory evidence, the Board will assume the Veteran's testimony as to the two injuries during his first basic training is entirely factual. For purposes of this decision, therefore, we will assume the injuries occurred exactly as he has reported; thus the question at hand becomes whether the evidence tends to show that he has residuals of these injuries. The report of the general medical examination conducted in July 1951 upon entrance into the Air Force, approximately five months after his discharge from the Army, reflects normal lower extremities upon clinical examination. No scars are noted in the area of his right knee or right hip. His Air Force treatment records do not reflect any complaints or treatment involving his right knee or right hip. The report of the general medical examination conducted in July 1955 at separation from service reflects normal lower extremities. The report also provides, "Examinee denies history of injuries or illnesses for which he feels the government is responsible." The next available relevant evidence consists of a May 1995 right knee X-ray report indicating that the Veteran had reported no history of trauma to the knee. The X-ray film itself was interpreted as showing very early degenerative changes in the right knee. In June 1995, he underwent arthroscopic surgery to repair a lateral meniscus tear in his right knee. None of the medical records related to this surgery include any history of trauma or any history of an explosion during a river crossing in service. Review of his recent VA treatment records shows that X-ray studies in May 2012 were interpreted as showing tri-compartment degenerative joint disease in both knees, but worse in the right knee. During a March 2012 VA dermatologic examination, the Veteran reported having received an accidental bullet in his left leg in 1953 in Korea; however, he did not mention an accidental shooting involving his right leg or hip in 1950, and no such scar is identified on the March 2012 examination report. Another pertinent treatment record is an October 2012 bone scan which was interpreted as showing degenerative joint disease in the right knee which likely represented post-traumatic arthritis. During a January 2013 VA orthopedic examination, the Veteran reported that he had been accidentally shot above the right iliac crest in 1950 and had sustained a soft tissue injury only. He reported having no right hip problems since he had recovered from the gunshot wound, and had had no other right hip injuries in service. He had no current complaints regarding his right hip. The clinical examination and imaging studies performed in conjunction with the examination revealed no pathology of the right hip, and no arthritis in the hip joint. The Veteran's right knee was also evaluated during this examination. The Veteran related that he had had right knee pain since the 1950 underwater blast during a riverboat assault exercise. The examiner noted limited flexion and extension of the knee, and rendered a diagnosis of osteoarthritis. The examiner reviewed the Veteran's available service records and opined that the gunshot wound the Veteran sustained in service was to the superficial soft tissues above the right iliac crest, with no impact on the right hip or any of the underlying musculature. The examiner noted that the Veteran had no knee or hip complaints at separation from service and opined that it was less likely that any current disability was related to the events described by the Veteran during service. Upon careful review of the Veteran's appeal, the Board holds that service connection for residuals of a gunshot wound to the right hip and residuals of injury to the right knee must be denied. Most important to this determination are the reports of the entrance and separation examinations conducted for his Air Force Service. Because the July 1951 entrance examination was conducted within seven to nine months of both of the incidents to which the Veteran testified, it would have been reasonable for him to report both occurrences during the entrance examination, if indeed, he was experiencing any residual symptoms whatsoever. He did not, however, and in July 1955, he explicitly denied any injuries for which he felt the government was responsible. In conjunction with the entirely normal findings upon clinical examination in July 1955, this evidence is practically dispositive as to both claims. However, the remainder of the evidence in the record has also been given serious consideration in this matter, and the Board finds that the preponderance of the evidence is against the Veteran's claims. With regard to the Veteran's right knee, we find it notable that the Veteran did not report the Army knee injury at the time of his 1995 surgery. It would appear that he did not himself believe his knee problems were related to service at that time. Rather he first reported the story involving the underwater explosion when he filed a VA claim, more than fifty years after his discharge from the Air Force. Furthermore, the VA examiner relied upon the normal findings in 1955, five years after the underwater explosion, to support his conclusion that the current right knee osteoarthritis was unrelated to the Veteran's service or to the explosion. Because right knee arthritis was not shown within one year of the Veteran's discharge, service incurrence cannot be presumed under law. With regard to the Veteran's right hip, the Board initially notes that the Veteran does not have a current disability in this area. No scar was identified during the VA scars examination, and the Veteran himself does not claim impairment related to the gunshot wound during basic training. We can only conclude, as the VA examiner did, that the wound must have been superficial in nature, with no bony or muscular involvement. A threshold requirement for the grant of service connection for any disability is that the disability claimed must be shown present. 38 U.S.C.A. §§ 1110, 1131. The Court has interpreted the requirement of current disability thus: Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In addition to disease or injury in service, service connection requires competent medical evidence of a current related disability. Degmetich v. Brown, 104 F.23d 1328 (1997). In this case, therefore, the Board holds that absent a confirmed disability, and as no linkage between any current disability and the incident in service is shown, service connection must be denied. ORDER Service connection for residuals of injury to the right knee is denied. Service connection for residuals of a gunshot wound injury to the right hip is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs