Citation Nr: 1805419 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 12-21 302 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine. 2. Entitlement to service connection for the residuals of a shell fragment wound to the testes. 3. Entitlement to service connection for the residuals of a shell fragment wound of the head and face. 4. Entitlement to service connection for the residuals of a shell fragment wound of the left upper arm. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from June 1967 to April 1969. He served in Vietnam, where he was awarded the Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran offered testimony at a videoconference hearing before the undersigned Veterans Law Judge. A transcript is in the record. FINDINGS OF FACT 1. The Veteran sustained an injury to his low back during active service, he has a current diagnosis of DDD of the lumbar spine, and evidence as to whether there is a relationship between these two events is in equipoise. 2. The evidence establishes that the Veteran was involved in two separate explosions that injured his thighs, pelvis and lower abdomen; there is currently X-ray evidence of retained metallic fragments in the soft tissues of this region, and the evidence as to whether or not this involves the left testes is in equipoise. 3. There is no evidence of a current disability resulting from the Veteran's shrapnel injuries to his face and head. 4. There is no evidence of a current disability resulting from the Veteran's shrapnel injuries to his left upper arm. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative disc disease of the lumbar spine have been met. 38 U.S.C. §§ 1110, 1154(b), 5107(b) (2014); 38 C.F.R. §§ 3.303, 3.304(b) (2017). 2. The criteria for service connection for the residuals of a shell fragment wound to the left testes have been met. 38 U.S.C. §§ 1110, 1154(b), 5107(b) (2014); 38 C.F.R. §§ 3.303, 3.304(b) (2017). 3. The criteria for service connection for the residuals of a shell fragment wound to the head and face have not been met. 38 U.S.C. §§ 1110, 1154(b), 5107(b) (2014); 38 C.F.R. §§ 3.303, 3.304(b) (2017). 4. The criteria for service connection for the residuals of a shell fragment wound of the left upper arm have not been met. 38 U.S.C. §§ 1110, 1154(b), 5107(b) (2014); 38 C.F.R. §§ 3.303, 3.304(b) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103(a) (2014); C.F.R. § 3.159(b)(1) (2017). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with notification letters in June 2009 and July 2009 prior to the initial adjudication of his claim. Regarding the duty to assist, the Veteran was been afforded a VA examination of all claimed disabilities. Additionally, VA and private treatment records have been obtained. The Veteran provided testimony before the undersigned, who agreed to hold the record open for 60 days to allow him to submit additional evidence. No such evidence was received. The Board will proceed with adjudication of his claim. Service Connection The Veteran contends that has residual disabilities as a result of injuries he sustained in the Republic of Vietnam. He notes that he was twice injured by enemy explosive devices. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curium, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007) (overruled on other grounds), the Court emphasized that lay testimony is competent if it pertains to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. See also 38 C.F.R. § 3.159 (a)(2) (2017). (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). In cases where a veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat veteran by permitting the use, under certain circumstances, of lay evidence. If the veteran was engaged in combat with the enemy, as did the Veteran in this appeal, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). That section 1154(b) establishes an event and injury during service does not end the matter. The provision does not mean that a grant of service connection is presumed for veterans who were injured in combat. Section 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disability causally to the current disorder. Caluza v. Brown, 7 Vet. App. 498, 507(1995); Libertine v. Brown, 9 Vet. App. 521, 523-24(1996). Section 1154(b) does not establish entitlement to a grant of service connection for a combat veteran; rather, it aids him or her by relaxing the adjudicative evidentiary requirements for determining what happened in service. See Collette v. Brown, 82 F.3d 389, 392(Fed. Cir. 1996). Even when the section 1154(b) combat presumptions apply, a "veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury...incurred during active duty." Reeves v. Shinseki, 682 F.3d 988, 998-99(Fed. Cir. 2012). Service connection may also be granted for a disease first diagnosed after discharge 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 there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Lumbar Spine DDD The Veteran contends that he has developed DDD of the lumbar spine as a result of an injury received during service. At the July 2017 hearing, he testified that he was a radioman, and that his duty required him to carry a heavy radio on his back. When he was injured by an enemy explosion, he was blown onto his back, landed on the radio, and sustained an injury. He recalls feeling numbness in his legs at the time of this injury, and he believes his current DDD is the result. The Veteran's service treatment records are negative for an injury to the back, and his spine was found to be normal on his April 1969 discharge examination. 10/22/15 STR-Medical, p. 20. However, the record establishes that the Veteran was engaged in combat with the enemy, and he has testified that that he sustained an injury to his back when he was wounded by an enemy explosion. His service treatment records confirm that he was wounded by an explosion in July 1968 and by a second explosion in November 1968. Therefore, the injury to his back is presumed. 38 U.S.C. § 1154(b). The post service medical records also confirm the Veteran has a current back disability. The earliest medical evidence to confirm this disability is a private medical record which shows that mild degenerative narrowing of L5-S1 intervertebral disc space was shown on X-ray. Subsequent records show ongoing complaints and treatment for low back pain, and the diagnosis at a January 2010 VA examination was degenerative disc disease of the lumbar spine. 1/10/10 VA Examination, p. 28. The remaining question for consideration is whether the Veteran's current back disability is related to the injury he sustained in service. The Board concludes that the evidence both for and against such an association is in equipoise. The January 2010 VA examiner states that the trauma the Veteran experienced in the 1968 explosion could potentially lead to subsequent degenerative body changes in the areas of the lumbar spine. However, the Veteran's separation examination did not reflect any symptoms related to the low back, and the earliest post service records to show a low back disability were those from 1995. The examiner determined it was inconclusive in terms of being able to determine whether the current degenerative changes were related to the past trauma. He found that he was unable to opine without resorting to mere speculation whether or not the Veteran's lumbar spine disability was caused by or a result of the injuries he sustained in Vietnam. 1/10/10 VA Examination, p. 28. The Board observes that the January 2010 opinion is the only one of record to address the etiology of the Veteran's back disability. The examiner acknowledges it is possible the current disability is related to the in-service injury, but refused to speculate any further. Extending every benefit of the doubt to the Veteran, the Board finds that this opinion, which is neither positive nor negative, places the evidence in equipoise. In that case, the benefit of the doubt is resolved in favor of the Veteran and service connection for DDD of the lumbar spine is established. Shell Fragment Wounds The Veteran contends that he sustained shell fragment wounds in several additional locations of his body on the same occasions that he sustained the shell fragment wounds for which service connection has previously been established. These locations include his left testes, his face and head, and his upper left arm. Initially, the Board observes that is very well documented that the Veteran was twice wounded by explosive devices, was treated for the residuals of shell fragment wounds, and carries many of the fragments within his body to this day. Service connection has already been established for shell fragment wounds to the right upper arm; right forearm; left forearm; left thigh; right thigh; the abdominal wall; the abdomen; the right lower extremity; the left knee; the right wrist and hand; the left neck; left hand; and the left chest wall. Moreover, the Veteran's description of wounds to the left testes, face and head, and upper left arm are presumed to have occurred. 38 U.S.C. § 1154(b). The only remaining question is whether or not these wounds have resulted in any residual disability. The Veteran has testified that he can experience pain in the left testes when wearing tight clothing or during sex. He was also afforded a January 2010 genitourinary examination in conjunction with his current claim. The Veteran provided a history to the examiner of having experienced shrapnel to his left testicle, although he was not treated for this. On examination, there was no tenderness, and the epididymis was within normal limits. There were no palpable nodules or shrapnel pieces in the left testicle. The examiner opined that there was no evidence of shrapnel in the left testes and that the examination was unremarkable. 1/10/10 VA Examination, p. 7. However, the Board observes that the Veteran also underwent an X-ray study of the pelvis and left hip in January 2010. There were several metallic fragments projected over the inferior pelvis and the left lower quadrant of the abdomen. 1/10/10 VA Examination, p. 34. This is consistent with a June 2003 VA X-ray study of the pelvis that also noted multiple tiny metallic densities in the soft tissues. 7/23/10 Medical Treatment Record - Government Facility, p. 4. The Board recognizes that these studies do not specifically state that any of these fragments were located in the left testes. However, both studies suggest that there were many such fragments in this region, and neither study attempts to pinpoint the exact location of each of them. Resolving all doubt in favor of the Veteran, the Board finds it is as likely as not that one of these fragments is in the left testes, and it follows that service connection is warranted. Turning to the Veteran's claim of service connection for the residuals of shell fragment wounds to the face and head, the January 2010 examination included an evaluation of the face and head. Once again, the Board stresses that the Veteran's reports of wounds to his face and head during service are credible and are presumed to have occurred. However, he did not report any current symptoms related to his head or face at the January 2010 VA examination, and an examination of the head and face revealed no evidence of shrapnel scars. 1/10/10 VA Examination, p. 21. There is no other medical evidence of a scar, retained fragment, or other finding that can be considered a residual disability of the Veteran's wounds. The Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328 (1997). The current disability requirement is satisfied when a claimant "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim," McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or "when the record contains a recent diagnosis of disability prior to ... filing a claim for benefits based on that disability," Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). In this case, it appears that the injuries the Veteran sustained to his face and head healed without resulting in any residual disability, and thus service connection is not established. Similarly, the Board must also conclude that entitlement to service connection for a shell fragment wound to the upper left arm is not warranted. As with his other claimed disabilities, the initial injury is presumed to have occurred. However, as with the injury to the face and head, there has been no demonstration of current disability for which service connection can be awarded. The evidence includes the report of a June 1969 VA examination conducted only two months after the Veteran's discharge. He underwent X-ray studies of both arms, which revealed small metallic densities in the left forearm and elbow; right forearm; and right upper arm. However, this study is silent for any metallic fragments of the left upper arm. 6/6/69 VA Examination, p. 10. The January 2010 VA examination is also negative for any evidence of a residual disability of the left upper arm. The Veteran reported discomfort when using a tool in his left hand that required repetitive exertion and weakness when moving his left elbow. On examination of the left upper extremity, the muscle mass was symmetric to that of the right. No scars were described, and the diagnoses entered at the conclusion of the examination did not include a disability of the left upper extremity. 1/10/10 VA Examination, pp. 18-22. In the absence of any evidence of a current disability of the left upper arm, service connection cannot be established. There is no evidence of a retained foreign body in that location, which would likely have been detected on the June 1969 X-ray. While the Veteran reported symptoms relating to his hand and elbow at the January 2010 examination, service connection has already been established for the shell fragment wound to the left forearm. This examination was negative for a disability of the muscles of the left upper arm, and the injury sustained by the Veteran did not leave a scar. In the absence of any current disability, service connection is not warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for degenerative disc disease of the lumbar spine is granted. Entitlement to service connection for the residuals of a shell fragment wound to the testes is granted. Entitlement to service connection for the residuals of a shell fragment wound of the head and face is denied. Entitlement to service connection for the residuals of a shell fragment wound of the left upper arm is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs