Citation Nr: 21003481 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 19-37 979 DATE: January 21, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for residuals of a shrapnel wound to the low back is reopened. Entitlement to service connection for residuals of a shrapnel wound to the low back is denied. Entitlement to service connection for residuals of a shrapnel wound to the upper back is denied. REMANDED The claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder, is remanded. The claim of entitlement to an evaluation higher than 10 percent for right knee degenerative arthritis is remanded. FINDINGS OF FACT 1. In a February 2015 rating decision, the agency of original jurisdiction (AOJ) denied service connection a shrapnel wound to the low back on the basis that it was not incurred in or related to service; the Veteran did not appeal. 2. The evidence received since the February 2015 rating decision includes statements and testimony from the Veteran and his wife describing alleged events during service; this evidence is not cumulative or redundant of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a shrapnel wound to the low back, and raises a reasonable possibility of substantiating the claim. 3. There is no objective evidence demonstrating shrapnel wound residuals to the upper or lower back; the Veteran did not leave the United States during service and did not sustain a shell fragment wound or other shrapnel injury in service. CONCLUSIONS OF LAW 1. The February 2015 rating decision is final. 38 U.S.C. § 7104(b) (2012); 38 C.F.R. §§ 3.160(d), 20.1103 (2019). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for residuals of a shrapnel wound to the low back. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 3. The criteria to establish service connection for residuals of a shrapnel wound to the low back have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2019). 4. The criteria to establish service connection for residuals of a shrapnel wound to the upper back have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for Shrapnel Wound Residuals The Veteran had active service from March 1954 to March 1956. A Board hearing was held in November 2020. A transcript is of record. The Veteran asserts that during service, he was sent to an unknown location in either Laos or Vietnam to instruct local troops in the use of weapons. He maintains that during that time, incoming fire was received, and that he sustained shrapnel wounds to his back. Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for any disease 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). However, “[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service.” Watson v. Brown, 4 Vet. App. 309, 314 (1993). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. A decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Current medical records reflect a diagnosis of spinal stenosis and spondylosis. Service personnel records reflect that the Veteran had no foreign or sea service, and he received no award indicative of combat. His most significant duty assignment was as a medical records clerk at the U.S. Navy Hospital, Great Lakes, Illinois. He separated at Ft. Sheridan, Illinois. Service treatment records reflect that in July 1954, the Veteran was seen in orthopedics. He reported that he had experienced repeated episodes of trauma to his right knee prior to service while playing football. In August 1954, the Veteran was admitted to the Great Lakes Naval Hospital from Ft. Leonard Wood, with a diagnosis of osteochondroma of the right knee. At that time, chest X-ray revealed no lesions of the bony thoracic cage. A history of recurrent pain and locking for two months was noted. The report notes that past history, family history, and systematic review were noncontributory. It also indicates that there was a defect in the articular surface of the medial femoral condyle consistent with osteochondritis dissecans, as well as loose bodies within the knee joint. Surgery was performed, revealing old osteochondritis dissecans and osteocartilaginous loose bodies. No additional knee joint pathology was found. Additional surgeries were performed, and the Veteran was discharged from hospitalization in January 1955. On VA examination in June 1956, the Veteran’s history of knee surgery was reviewed. No mention is made of wounds caused by shrapnel or a shell fragment. When he was seen to establish care with VA in January 2007, he reported a history of shrapnel removal from his right knee during service. In July 2013, the Veteran submitted authorizations for release of records from two private facilities. He stated that he underwent a surgical procedure at Ministry St. Michael’s to remove shrapnel from his right knee and lumbar area. He reported that treatment was between January 2000 and January 2004. He also indicated that he underwent surgical shrapnel removal at Aspirus Hospital in January 2011. In June 2014, he related that he had attempted to obtain records from these facilities but that neither had any such records. A June 2017 affidavit signed by R.R. indicates that she was a registered nurse and had observed the removal of shrapnel from the Veteran. No additional detail was provided. A September 2017 VA mental health initial evaluation report indicates the Veteran’s report of having been injured by a bomb blast during service. During his November 2020 hearing, the Veteran and his wife testified that the Veteran was wounded by a bomb while serving overseas. His wife specified that he was sent to Laos to train that country’s troops in use of weapons, and that while he was there, a bomb went off and he was hit by shrapnel in the knee and back. She described an incident during the 1980s when the Veteran had a sore on his upper back, and that her daughter-in-law, a registered nurse, extracted metal from it. She indicated that she subsequently took the Veteran to the doctor, who cleaned the wound and said that there were small pieces of shrapnel in it. She indicated that records from that treatment were no longer available. Having carefully reviewed the evidence pertaining to these claims, the Board has determined that service connection for residuals of shrapnel fragment wounds to the lower and upper back is not warranted. In reaching this conclusion, the Board has considered the Veteran’s report of being injured in a bomb blast during service, and being transferred from a secret location in Laos to Great Lakes Naval Station for treatment. However, the evidence contemporaneous to service are silent regarding any such injuries. Rather, service personnel records do not show foreign service or any decoration indicative of combat. Additionally, service treatment records reflect that the Veteran was transferred from Ft. Leonard Wood to Great Lakes for treatment of knee complaints. At that time, the Veteran reported a history of trauma to his right knee prior to service while playing football. It was not until he was seen to establish care with VA in 2007 that the Veteran reported a history of having shrapnel removed from his knee. Moreover, the Veteran’s military occupational specialty of medical records clerk is simply inconsistent with assignment on secret missions to train foreign personnel in weapons use overseas. The Board has also considered the testimony of the Veteran’s wife; however, the record reflects that they were married in June 1989, many years following the Veteran’s service. Her statements regarding what occurred during the Veteran’s service are based on his report rather than any contemporaneous observation. Thus, the Board finds that her statements are unreliable and cannot serve to establish the injuries currently reported by the Veteran. The more reliable and probative evidence consists of medical reports produced during service, which do not show any injury from a bomb blast, or any other injury to the Veteran’s low or upper back and fail to mention shrapnel or a shell fragment wound. The Veteran’s more recent reports of injury by bomb blast during service are refuted by his service personnel and treatment records; they are otherwise unsupported and are not credible. The grant of service connection requires competent evidence to establish a disability and, as in this case, relate the disability to the veteran's service. The more probative evidence establishes that there was no injury by bomb blast during service, and that no spine disability is otherwise related to service. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder During the November 2020 hearing, the Veteran raised the theory of entitlement to service connection for an acquired psychiatric disorder as secondary to his service-connected right knee disability. He testified that he began to experience psychiatric symptoms following the surgeries on his knee. Considering the assertion that the Veteran has an acquired psychiatric disorder that was caused or aggravated by his service-connected right knee disability, and in light of psychiatric diagnoses of record, the Board concludes that an examination is necessary. 2. The claim of entitlement to an evaluation higher than 10 percent for right knee degenerative arthritis is remanded. The Veteran was most recently afforded a VA knee examination in July 2018. The examiner indicated that while the examination was not being conducted during a flare-up or following repetitive use over time, the examination was medically consistent with the Veteran’s statements describing functional loss during flare-ups or with repetitive use. He indicated that pain, fatigue, weakness, and lack of endurance significantly limited functional ability with flare-ups and with repeated use over time. However, he stated that he could not describe such in terms of range of motion, stating that he could not do so without resorting to speculation. He reasoned that he did not personally assess or witness a flare-up or repeated use. In Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the U.S. Court of Appeals for Veterans Claims (Court) held that a VA examination is inadequate when the VA examiner does not elicit relevant information as to the Veteran’s flares or ask him to describe additional functional loss, if any, he suffered during flares and then does not “estimate the [Veteran’s] functional loss due to flares based on all the evidence of record (including the [Veteran’s] lay information) or explain why [he or she] could not do so.” Unfortunately, merely stating that such is not possible because it was not observed does not adequately address the question. Thus, an additional examination is necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of his claimed acquired psychiatric disorder. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should identify all psychiatric disorders present. If a diagnosis of PTSD is made, the examiner should identify the stressor(s) upon which such diagnosis is made. For any diagnosis other than PTSD, the examiner should provide an opinion regarding whether it is at least as likely as not that any such condition was incurred in, or is otherwise related to, active service. The examiner should also render an opinion as to whether it is at least as likely as not that the Veteran’s psychiatric disability was caused or aggravated by his service-connected right knee disability. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Schedule the Veteran for VA examination to determine the severity of his service-connected right knee disability. The claims file must be made available to the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. All pertinent symptomatology and findings referable to the Veteran’s right knee disability should be reported in detail, including range of motion (ROM) testing. The examiner should set forth the Veteran’s range of motion findings and note any pain, pain on use (to include the point during range of motion at which the Veteran reports pain), weakness, incoordination, or excess fatigability. If feasible, the examiner should portray any additional functional limitation of the right knee due to these factors in terms of degrees of additional loss of motion. If not feasible, this should be stated and discussed in the examination report. If the Veteran does not have pain or any of the other factors, that fact should also be noted. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (Continued on the next page)   3. Then, readjudicate the Veteran’s claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period within which to respond thereto. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Barone, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.