Citation Nr: 1802202 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-09 923 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for residuals of shrapnel wounds. REPRESENTATION Appellant represented by: Oliver O. Jahizi, Attorney at Law ATTORNEY FOR THE BOARD Buck Denton, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1951 through March 1953. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his residuals of shrapnel wounds are etiologically related to his military service. CONCLUSION OF LAW The criteria for service connection of the Veteran's claimed residuals of shrapnel wounds have been met. 38 U.S.C. § 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372. In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran asserts that service connection is warranted because during his military service, he was struck by shrapnel in the right arm and right calf during a barrage of enemy artillery while overseas in the Korean War. See December 2010 Statement from the Veteran. The Veteran also asserts that he suffers from weakness in his right arm and leg due to his injuries. In this case, the Veteran's STRs are unavailable, apparently having been destroyed in a fire. See October 2010 Formal Finding on the Unavailability of Service Treatment Records. Where the STRs are absent or incomplete, the obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, this does not lower the threshold for an allowance of a claim, for example where the evidence almost but not quite reaches the positive-negative balance. In other words, the legal standard for proving a claim is not lowered; rather, the obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, the absence of some of the service medical records in a fire does not create an adverse-presumption rule. Cromer v. Nicholson, 19 Vet. App. 215 (2005). The Board finds that the Veteran's VA medical records reflect his mortar injuries. See Los Angeles VAMC Records, received June 14, 2017, at 1, 59, 478, 508, and 522. His VA medical records also show that he has scars on his right upper and right lower extremities with right upper and lower extremity atrophy. See Id., at 602. As such, the Board finds the first element of service connection, the existence of a current disability, is satisfied. The Board notes that the Veteran's MOS indicates he served as a truck driver and crane operator from April 1951 through March 1953 and that he was an overseas returnee. His last duty assignment was noted to be at Army Post Office code 301, which corresponds to Yongsan, Korea. The Veteran has additionally stated that he underwent mortar shell attacks during the course of his duties. Furthermore, the Veteran is service-connected for PTSD due to his traumatic combat experiences. See June 2017 VA PTSD Examination. Since the description of the Veteran's injuries are consistent with the places and circumstances of his service, the Board finds that the Veteran did incur shrapnel wounds in service even though his service treatment records are unavailable. Concerning the remaining nexus element, the Veteran reported that ever since he returned home from service, he has experienced muscle tightness, spasms, and pain in the areas where his in-service injuries occurred and where he currently has scars. See December 2010 Statement from the Veteran. The Board finds the lay evidence of record to be competent and credible because it is consistent with his military record, his VA records, and the circumstances of his service. Resolving reasonable doubt in the Veteran's favor on this question, the Board concludes that symptoms of the Veteran's residuals of shrapnel wounds began during service, that is, his condition was directly incurred in service. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303(a), (d). Thus, service connection is granted. ORDER Entitlement to service connection for residuals of shrapnel wounds is granted. ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs