Citation Nr: 1752358 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 09-47 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for right eye blindness. 2. Entitlement to service connection for osteoarthritis of the right hip, to include as secondary to a superficial shrapnel wound to the right posterior iliac crest. 3. Entitlement to an initial compensable rating for a superficial shrapnel wound to the right posterior iliac crest. 4. Entitlement to an aid and attendance allowance for the Veteran's spouse. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and Daughter ATTORNEY FOR THE BOARD L. N., Counsel INTRODUCTION The Veteran served on active duty from February 1943 to November 1945, and in the United States Army Reserves from January 1954 to December 1958, including on various periods of active duty for training (ACDUTRA). These claims come before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In January 2012, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. In June 2017, the Veteran testified in support of these claims during a hearing held at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to an initial compensable rating for a superficial shrapnel wound to the right posterior iliac crest is REMANDED to the Agency of Original Jurisdiction. FINDINGS OF FACT 1. The evidence is in relative equipoise regarding whether the Veteran's right eye blindness is related to service. 2. Right hip osteoarthritis is not related to the Veteran's service or service-connected superficial shrapnel wound to the right posterior iliac crest and did not manifest to a compensable degree within a year of separation from service. 3. During the June 2017 hearing, prior to the promulgation of a decision in this case, the Veteran withdrew from the appeal of the claim of entitlement to aid and attendance allowance for his spouse. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, right eye blindness was incurred in service. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. Right hip osteoarthritis was not incurred in or aggravated by service, may not be presumed to have been incurred in service, and is not proximately due to, the result of, or aggravated by, service or a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). 3. The criteria for withdrawal of the substantive appeal on the claim of entitlement to aid and attendance allowance for his spouse are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has duties to notify and assist claimants who make claims for benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Specifically, VA is to notify a claimant and representative, if any, of the information and medical or lay evidence not previously provided to VA that is necessary to substantiate the claim, which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. VA is also to assist a claimant in obtaining evidence necessary to substantiate a claim, including, in certain cases, by providing a medical examination or obtaining a medical opinion. 38 U.S.C. §§ 5103(a), 5103A (2012); 38 C.F.R. § 3.159(b), (c) (2017). Here, the Veteran does not assert that VA violated its duty to notify, that there are any outstanding records that need to be secured on his behalf, or that any VA examination afforded him during the course of this appeal was inadequate. Therefore, no further notification or assistance is necessary. Service Connection The Veteran seeks service connection for right eye blindness on a direct basis, as related to active service. He seeks service connection for right hip osteoarthritis on either a direct basis, as related to his active service, or secondary basis, as related to service-connected superficial shrapnel wound to the right posterior iliac crest. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Active service includes any period of active duty, ACDUTRA, during which an individual becomes disabled from disease or injury incurred or aggravated in the line of duty, or inactive duty training (INACDUTRA), during which an individual becomes disabled from injury, though not also disease, incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C. §§ 101(21), (22), (23), (24) (2012); 38 C.F.R. § 3.6(a), (c), (d) (2017). ACDUTRA, among other things, is full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22) (2012); 38 C.F.R. 3.6(c)(1) (2017). Generally, to prevail on a claim for service connection as directly related to service, there must be competent evidence of: (1) a current disability; (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between the in-service injury or disease and the current disability. Shedden v. Principe, 381 F.3d 1163 (Fed. Cir. 2004). To prevail on a claim for service connection on a secondary basis, a claimed disability must be proximately due to, the result of, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310 (2017). Certain chronic diseases, including arthritis, may be presumed to have been incurred in service if they manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, reasonable doubt should be resolved in favor of the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). Right Eye Blindness The evidence is in relative equipoise regarding whether the Veteran's right eye blindness is related to an in-service incident, thereby necessitating that reasonable doubt be resolved in the Veteran's favor. Treatment records dated since 2003 and a report of VA examination conducted in December 2012 confirm that the Veteran is blind in the right eye. Evidence also satisfies the in-service occurrence element of this service connection claim. According to the Veteran's written statements and June 2017 hearing testimony, the Veteran identified an incident during summer camp (ACDUTRA) in Wisconsin in the late 1950s or early 1960s. Reports have been inconsistent, one indicating the period of training occurred as late as 1961. According to the Veteran, several soldiers were practicing with anti-aircraft artillery, whose firing was controlled by a radar van, when the artillery misfired. In an effort to fix the problem, the Veteran climbed on top of the van and tightened material on the parabolic reflector. Another soldier thought the Veteran was done and turned on the reflector, causing an intense, bright light to shine in the Veteran's right eye and resulting in a flutter. The Veteran claims he was fine for the first three months following the incident, but then had to seek treatment for floaters in the right eye. Doctors could not determine the etiology of the right eye condition, finding it interesting and unusual. The Veteran did not report the shining light incident, so they told the Veteran they were going to call it toxoplasmosis. The Veteran has since researched the nature of toxoplasmosis and attributes his current right eye scar and blindness to the shining light. He does not believe he ever had toxoplasmosis. Most of the Veteran's service medical records are not in the claims file, having been destroyed in a fire that occurred at the National Personnel Records. However, those that are available and his service personnel records provide some support for the Veteran's assertions. They show that he served on ACDUTRA every summer from July 1951 to July 1963, including in Wisconsin in 1953 and as a Platoon Sergeant in 1954, controlling a radar van. They also show a decline in vision between August 1955 and July 1958, when the Veteran underwent separation and re-enlistment examinations. The Veteran is certainly competent to state that, while working the radar van, he experienced a burst of shining light in his right eye, which caused that eye to flutter. The Board has no reason to question his credibility in this regard. Because of his age, the Board does not expect the Veteran to recall the exact year the incident occurred. Not only is the Veteran credible and competent to report on lay-observable matters, he is competent to report on certain medical matters. During active duty in World War II, he served in an Infantry Medical Detachment, including as a Surgical Technician. He thus received training in medical matters and, as such, is in a position to describe accurately the circumstances surrounding the in-service toxoplasmosis diagnosis. In December 2012, a VA examiner considered whether the in-service incident, as the Veteran described, was at least as likely as not the cause of the Veteran's right eye scar and blindness. The examiner concluded unfavorably on the basis that toxoplasmosis might have been the cause. That opinion, alone, provides an equipoise situation, one in which either an in-service or nonservice-related incident might have been the cause. The Veteran served during World War II and received, in part, two Purple Heart Medals and a Bronze Star Medal for that service. He waited many decades after service, until 2008, to file a claim for VA benefits and has been unable to secure pertinent records that no longer exist because of a fire. The Board finds the evidence sufficient to grant the benefit sought, resolving reasonable doubt in the Veteran's favor. Accordingly, the Board find that service connection for a right eye disability is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016). Right Hip Osteoarthritis The Board finds that the record in this case fails to satisfy all necessary elements of a service connection claim, specifically, the nexus element, whether pursued on a direct, secondary or, though not alleged, presumptive basis. Treatment records dated since 2008 and reports of VA examinations conducted in July 2008 and February 2013 confirm that the Veteran has right hip osteoarthritis, thereby showing a current disability. The service medical records satisfy the in-service occurrence element of the service connection claim. They show that, in June 1944, during a period of active, he sustained a shrapnel wound to the posterior surface of the right hip. This wound resulted from an airplane dropping an incendiary bomb where he was standing. He has established service connection for residuals of that wound. In 2008, the Veteran was diagnosed with right hip osteoarthritis. There are no medical records in the file indicating that, prior to that time, he sought treatment for right hip pain. According February 2008, February 2009, December 2011 and January 2012 written statements and June 2017 hearing testimony, he has had right hip pain since the in-service incident, pain that has recently worsened to such an extent that he has difficulty walking. He believes there is a connection to the in-service incident because he has no pain in the left hip. Allegedly, when hit with the shrapnel, it entered deeply and, given its heat, sealed the wound shut, necessitating surgery. A doctor removed the shrapnel, but based on x-rays, realized it was in the bone, necessitating follow-up surgery. Thereafter, the Veteran was told the bone had not broken. He believes his right hip osteoarthritis results from the contact the shrapnel made with the bone. Two medical professionals have discussed that assertion. Both have concluded unfavorably. In July 2008, based primarily on x-rays, but also on the Veteran's description of the pain being in the posterior trunk region at the level of the sacroiliac joint and service records showing the wound in the right pelvis area, a VA examiner attributed the Veteran's "early" right hip osteoarthritis to aging. That examiner indicated that the in-service wound was not in close proximity to the hip joint, but rather at the right posterior iliac crest, and did not involve any nerve, artery, or muscle. In February 2013, another VA examiner concluded similarly, finding that the osteoarthritis was less likely than not related to the in-service wound. The examiner also found the condition unrelated to, and not caused or aggravated by, the service-connected scar on the Veteran's right iliac crest. The examiner indicated that the iliac crest was not in close proximity to the hip joint and that osteoarthritis was a natural part of aging. The Veteran's assertions, while competent and credible, represent the only other evidence of record pertaining to the claim. The Board finds that the preponderance of the evidence is against a finding that the hip osteoarthritis is related to service, or was caused or aggravated by the service-connected disability. The Board finds the opinions of the medical examiners more persuasive because of the training and medical knowledge of the examiners and because they conducted examinations to make the findings and reviewed the available medical record. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for right hip osteoarthritis and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016). Aid & Attendance The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2017). Either an appellant or the authorized representative may request withdrawal. 38 C.F.R. § 20.204 (2017). During the June 2017 hearing before the undersigned Veterans Law Judge, prior to the promulgation of a decision in this claim, the Veteran withdrew from the appeal the claim of entitlement to an aid and attendance allowance for his spouse. Consequently, there remain no allegations of errors of fact or law for appellate consideration with regard to that issue. Accordingly, the Board does not have jurisdiction to review that claim and it must be dismissed. ORDER Service connection for right eye blindness is granted. Service connection for a right hip disability, to include osteoarthritis, including as secondary to service-connected superficial shrapnel wound to the right posterior iliac crest, is denied. The appeal on the claim of entitlement to an aid and attendance allowance for the Veteran's spouse is dismissed. REMAND The Board regrets the delay that will result from remanding rather than immediately deciding the claim of entitlement to an initial compensable rating for a superficial shrapnel wound to the right posterior iliac crest, but additional action is necessary before the Board proceeds. The Veteran seeks an initial compensable rating for a scar on the right iliac crest. In February 2013, he underwent a VA examination of that scar. The report of that examination is incomplete to decide this claim. Since that examination, during the June 2017 hearing, the Veteran claims that there is burning associated with the scar. Another VA examination is thus needed as the evidence indicates the disability may have worsened. Accordingly, this claim is REMANDED for the following action: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested. 1. Schedule the Veteran a VA examination for the purpose of evaluating the current severity of a scar on the right iliac crest. The examiner must review the claims file and should note that review in the report. The examiner should provide a description, measurements, and unretouched color photographs of the scar. The examiner should also state whether there is any loss of function related to the shrapnel wound scar of the right posterior iliac crest. 2. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs