Citation Nr: 1635582 Decision Date: 09/12/16 Archive Date: 09/20/16 DOCKET NO. 11-25 231 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for residuals of gunshot wounds to the stomach. 2. Entitlement to service connection for throat condition, causing excess mucus and spitting, as secondary to gunshot wounds. 3. Entitlement to service connection for a bladder condition as secondary to gunshot wounds. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1975 to March 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board notes that an August 2012 administrative decision denied the Veteran's claim for pension benefits. In December 2012, the Veteran filed a notice of disagreement, and in August 2013, the RO issued a statement of the case. However, the Veteran did not file a substantive appeal as to such issue. Therefore, as he has not perfected his appeal as to his claim for pension benefits, it is not properly before the Board for appellate review. In his August 2011 substantive appeal (VA Form 9), the Veteran requested a Board hearing before a Veterans Law Judge sitting at the RO. As such, he was informed in November 2013 letter that his requested hearing had been scheduled for December 2013. However, the Veteran failed to report for his scheduled Board hearing. Therefore, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2015). The Board has reviewed the electronic files in the Veterans Benefit Management System (VBMS) and the Virtual VA files. FINDINGS OF FACT 1. A current disability manifested by residuals of gunshot wounds to the stomach is not shown by the competent evidence of record. 2. A throat condition, causing excess mucus and spitting, as secondary to gunshot wounds is not shown by the competent evidence of record. 3. A bladder condition as secondary to gunshot wounds is not shown by the competent evidence of record. CONCLUSIONS OF LAW 1. Residuals of gunshot wounds to the stomach were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. A throat condition, causing excess mucus and spitting not incurred in or aggravated by service, and is not secondary to a service-connected disability. 38 U.S.C.A. §§ 1101,1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015). 3. A bladder condition was not incurred in or aggravated by service, and is not secondary to a service-connected disability. 38 U.S.C.A. §§ 1101 ,1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Stegall Considerations The Board remanded this matter in September 2014, and specifically instructed the RO/Appeals Management Center (AMC) to attempt to obtain records from January 1978 to December 1981 from Womack Army Medical Center (to include any clinical records of hospitalization) and Spring Lake Hospital, and to afford the Veteran VA examinations. Subsequently, Personnel Information Exchange System requests were sent for the Womack Army Medical Center Records, the Veteran was sent a letter in December 2014 asking him to submit any private treatment records including from Spring Lake Hospital. In February 2015 there was a response that no records were available from Womack, and the Veteran was notified of the unavailability of these records in May 2015. The Veteran never submitted an authorization for the Spring Lake Hospital Records. The Veteran was also afforded the examinations in April 2015 and thus there is substantial compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist In correspondence dated in July 2009 prior to the February 2010 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2014) and 38 C.F.R. § 3.159(b) (2015), known as the duties under the Veterans Claims Assistance Act of 2000 (VCAA). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The letter also notified the Veteran of the process by which initial disability ratings and effective dates are established as set forth in Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2014) and 38 C.F.R. § 3.159(c) (2015). All identified and available service and post-service treatment records have been secured. VA has a duty to assist a veteran in the development of the claim, to include providing an examination when indicated. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The Veteran was afforded a VA examination in April 2015. The report of this examination reflects that the examiner reviewed the Veteran's past medical history, including his claims file and the service treatment records contained therein, recorded his current complaints, conducted an appropriate interview examination, and rendered appropriate opinions consistent with the remainder of the evidence of record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2015); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, the Veteran declined to present testimony in support of his claims. Thus, the duties to notify and assist have been met. Analysis In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1131 (West 2015); 38 C.F.R. § 3.303 (2014). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disabilities resulting from the aggravation of a non service-connected condition by a service-connected condition are also compensable under 38 C.F.R. § 3.310(b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Residuals of Gunshot Wound to the Stomach The Veteran essentially contends that he has residuals of a gunshot wound he incurred when his wife shot him in the abdomen during service. Records from a January 2004 introductory visit to a Dr. W.C. submitted to Social Security Administration note "GI System: Significant for gunshot wound to the left abdominal area. He also recently had some type of abdominal surgery, status post auto accident." The Veteran was seen at Pitt County Memorial Hospital as followup to a severe motor collision in December 2003. Past medical history noted a "Gunshot wound in the abdomen." In April 2015, the Veteran was afforded a VA examination to determine the nature of his claimed residuals of gunshot wound. Overall, the examiner opined that there were no residuals or diagnosis of muscle injury from the alleged Veteran's gunshot wound to the abdomen. The examiner found no evidence of a penetrating muscle injury or scarring. The examiner opined that even assuming that a gunshot wound did occur to abdomen, it was likely superficial, and resolved with no sequela, and noted there was no documentation of prior internal trauma found during the exploratory laparotomy done for his motor vehicle accident in 2003. The examiner further noted that there is no documentation in service treatment records of the Veteran being placed on a light duty after his gunshot wound, documentation of follow up for his gunshot wound or documentation of follow up for complaints of any residuals from a gunshot wound. With regard to the Veteran's specific claimed secondary residuals of gunshot wound, the examiner noted the Veteran did not have any diagnosed throat condition including any diagnosis for subjective complaint of excess salivation. The examiner noted there were no reports of bullet fragments or spinal cord injury close to the anatomical areas related to the face or salivary glands, and that there was no excess salivation noted on physical exam for evaluation nor was there any report of excess salivation in any of the Veteran's medical treatment records. The examiner further opined that the Veteran had no current bladder condition and that while the Veteran reports a gunshot wound to the abdomen, there are no reports of bullet fragments or spinal cord injury close to the anatomical areas related to the urinary bladder. The examiner noted the Veteran was involved in a serious motor vehicle accident in 2003 that required an exploratory laparotomy with no documentation of present or prior bladder injury. The examiner further noted that the most common causes of urinary frequency are bladder infections, urinary incontinence, noncancerous enlargement of the prostate gland, and stones in the urinary tract; while the most common causes of polyuria (excess production of urine) are uncontrolled diabetes mellitus, drinking too much fluid, diabetes insipidus, and taking diuretic drugs or substances such as alcohol or caffeine. The Board points out that a key element in establishing service connection is to show that the Veteran currently has a diagnosis or symptoms of the disability for which service connection is sought. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. 3.303 (2015). In this case, there is no clinical evidence in the claims file diagnosing residuals of a gunshot wound to the stomach in accordance with applicable law. While the Veteran complained of symptoms of excess saliva and spitting and frequent urination, these are not analogous to a disability, and in fact the VA examiner found that the Veteran had no throat or bladder disability. See generally Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (holding that symptoms such as pain alone without a diagnosed or identifiable underlying malady or disability did not constitute a disability for which service connection may be granted). The April 2015 VA examiner specifically opined the Veteran had no diagnosis of any residuals of gunshot wounds, even if the Veteran had been shot in the past. Furthermore, while the SSA records note residuals of gunshot wounds, the residuals are not specified and are noted in the patient history, making them not probative. A bare transcription of lay history, unenhanced by additional comment by the transcriber does not become competent medical evidence merely because the transcriber is a health care professional. LaShore v. Brown, 8 Vet. App. 406, 409 (1995). These statements, recorded for treatment purposes for a different condition, are not adequate for compensation purposes. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the competent medical evidence of record does not indicate the presence of a diagnosed wrist disability at any time during the appeal period Hickson element (1) has not been met and the claim fails. Cf. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Board would also point out that as residuals of a gunshot wound are not clinically demonstrated, there is no need to discuss whether this disability was incurred in service. In making this decision, the Board must fully consider the lay assertions of record. In this regard, 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) (noting that a Veteran is competent to report on that of which he or she has personal knowledge), including being shot. However, the medical evidence of record does not show that he has a diagnosed disability. The April 2015 examination was negative for any findings. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b) (West 2014). Bladder Condition The Veteran asserts that he has a bladder condition, including urinary frequency secondary to his claimed residuals of gunshot wound. February 2004 records from Pitt County Memorial Hospital note the Veteran is "continent of bowel and bladder." As noted above, the 2015 VA examiner found no current diagnosis of a bladder condition, and noted that the Veteran's complaints of increased urination could be due to a number of factors. Regardless, as service connection for the Veteran's residuals of gunshot wound is being denied, it is impossible for the Veteran to establish service connection for a claimed bladder condition on a secondary basis due to residuals of gunshot wound (or any other service-connected disability as he is not service-connected for any disability). The examiner noted no indication of residuals of gunshot wound that would have impacted the bladder, even if the Veteran had been shot. The Board notes further that the Veteran has not alleged nor does the evidence raise the issue of direct service connection to any other event in service except the Veteran's claimed gunshot residuals. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b) (West 2014). Throat Condition The Veteran asserts that his complaints of a throat condition are secondary to his claimed residuals of gunshot wound. As noted above, the examiner found no current diagnosis of any throat condition, including excess saliva. Regardless, as service connection for the Veteran's residuals of gunshot wound is being denied, it is impossible for the Veteran to establish service connection for a throat condition on a secondary basis due to residuals of gunshot wound (or any other service-connected disability as he is not service-connected for any disability). The examiner noted no indication of residuals of gunshot wound that would have impacted the salivary gland, face, or throat, even if the Veteran had been shot. The Board notes further that the Veteran has not alleged nor does the evidence raise the issue of direct service connection to any other event in service except the Veteran's claimed gunshot residuals. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b) (West 2014). ORDER Entitlement to service connection for residuals of gunshot wounds to the stomach is denied. Entitlement to service connection for throat condition, causing excess mucus and spitting, as secondary to gunshot wounds is denied. Entitlement to service connection for a bladder condition as secondary to gunshot wounds is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs