Citation Nr: 21061573 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 18-33 907 DATE: October 4, 2021 ORDER Entitlement to service connection for a muscle injury of the right upper arm from a glass fragment injury is denied. Entitlement to service connection for a muscle injury of the upper back from a glass fragment injury is denied. Entitlement to service connection for a muscle injury of the left thigh from a glass fragment injury is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a current disability of the right upper arm due to a glass fragment injury. 2. The preponderance of the evidence is against finding that the Veteran has a current disability of the upper back due to a glass fragment injury. 3. The preponderance of the evidence is against finding that the Veteran's current left thigh injury began during active service, is otherwise related to an in-service injury or disease, or manifest to a compensable degree within one year of separation from active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a muscle injury of the right upper arm due to a glass fragment injury have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for a muscle injury of the upper back due to a glass fragment injury have not been met. 38 U.S.C. §§ 1110, 1112, 1113,1131, 5107; 38 C.F.R. § 3.303. 3. The criteria for service connection for a muscle injury of the left thigh due to a glass fragment injury have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1971 to June 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in June 2021. The Veteran filed his claim for service connection in March 2016. The Veteran has contended throughout the period on appeal that he is entitled to service connection for glass fragments in his left arm, back, and left thigh, stemming from a 1971 glass explosion incident while on active duty. In an April 2017 rating decision, the Veteran was granted service connection for a scar on his right arm and a scar on his left thigh. The Veteran was denied service connection for a back condition. The Veteran filed a timely Notice of Disagreement (NOD) in June 2017 appealing the two scar issues and the back issue. In the June 2017 NOD, the Veteran wrote that the left thigh and right arm issues should be looked as glass fragment injuries but were written up as scars. The issues were corrected and in a May 2018 Statement of the Case, the Veteran was denied service connection for a muscle injury of the right upper arm due to a glass fragment injury, left thigh from glass fragment due to a glass fragment injury, and a muscle injury to the upper back due to a glass fragment injury. In March 2019, the Veteran's claims were certified by the Board. The case is now before the Board. SERVICE CONNECTION Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated during military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 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). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). If there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 1. Entitlement to service connection for a muscle injury of the right upper arm from a glass fragment injury 2. Entitlement to service connection for a muscle injury of the upper back from a glass fragment injury 3. Entitlement to service connection for a muscle injury of the left thigh from a glass fragment injury The Veteran contends that he has glass fragment injuries to his back, thigh, and right upper arm from a 1971 glass valve explosion incident. The Veteran is service connected for posttraumatic stress disorder (PTSD). The RO conceded the 1971 glass valve explosion when it granted service connection for PTSD. The Veteran's service treatment records show the removal of glass from his body in June 1971 following the glass valve explosion. Approximately twelve pieces of glass were removed. The Veteran was seen later that year in August for pain due to the glass explosion. The only issues noted on the Veteran' separation physical were scars to the lower arm and hip. The record is silent for any complaints or treatment for glass fragment injuries until 2015. In September 2015, VA medical records show the Veteran complained to his providers about glass being embedded in his body. In May 2017, the Veteran had x-rays taken to evaluate his thigh. The x-ray revealed proximal femur soft tissues with of 8mm faint density. The reviewing physician wrote that this may have represented a foreign body versus calcification. The questions before the Board are whether the Veteran has any current disabilities and whether there is a causal relationship between the current disabilities and the disease or injury incurred or aggravated during service. Shedden, 381 F.3d at 1166-67. The Veteran was afforded a VA muscle injury examination in March 2017. The examiner reviewed the record and conducted an in-person examination. The Veteran told the examiner the onset of symptoms started in 1971 when a glass valve exploded while onboard a US Navy ship. The Veteran stated he had glass embedded in his body. The Veteran denied pain or other discomfort or muscle injury and denied limitations. Regarding the Veteran's right arm, the examiner noted normal muscle strength. The examiner indicated that the Veteran did not have an injury to the muscle group of the shoulder girdle/arm. The examiner rendered a negative nexus opinion and found that the claimed condition was less likely than not incurred in or caused by the claimed in service injury, event, or illness. The examiner wrote that the Veteran believed embedded glass existed near his scars. The examiner wrote that this was not confirmed as of the date of the examination and found no diagnosis for the Veteran's right arm. The March 2017 examiner also indicated that the Veteran did not have an injury to a muscle group in the torso and/or neck. The examiner noted normal muscle strength. The Veteran was found to have a palpable firm mass and pain on the examination, but the pain did not result in or cause functional loss. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that no back condition was found during the examination with no observable scar or confirmation of an embedded foreign object. The examiner noted the palpable nodule, but there was no evidence to support a service-connected condition. The examiner noted that the mass was of unknown etiology, and a diagnosis for the back (other than the mass) was not made. The March 2017 examiner similarly indicated that the Veteran did not have a muscle injury to the left leg or thigh. The examiner noted normal muscle strength. The examiner opined that it was less likely than not that the claimed condition was incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that although the Veteran sustained an injury due to a glass valve explosion, there was no evidence supporting a penetrating muscle injury. Additionally, the examiner found no penetrating muscle injury on examination, and no diagnosis was rendered. The Veteran was afforded a VA examination in April 2018. The RO requested that the examiner determine whether the Veteran's left thigh x-ray from May 2017 showed that the Veteran had a glass fragment in the thigh. The examiner reviewed the record and conducted an in-person examination. The examiner again indicated that the Veteran did not have an injury to a muscle group in the torso, neck, shoulder girdle/arm, or the forearm/hand. Additionally, the examiner indicated that the Veteran did not have a muscle injury to the leg or thigh. The examiner reviewed the May 2017 x-rays of the Veteran's left thigh that showed a foreign body. The examiner noted the x-ray and found the two-millimeter palpable foreign body under the skin. However, the examiner concluded it the lump felt more like a probable lipoma and not a foreign body. The examiner stated the Veteran refused new x-rays. The examiner also found that the Veteran's muscle injury did not impact his ability to work. The examiner found the Veteran had no restriction or prevention of function due to glass fragments. The examiner recommended that the Veteran seek treatment with a dermatologist. The Veteran testified in his June 2021 Board hearing regarding the glass valve explosion. The Veteran described the glass valve explosion and stated that he was seen at a hospital where doctors picked and pulled glass from his body. The Veteran stated the doctors told him that they could not find all of the glass. The Veteran testified that he still feels glass in his body, specifically in his left leg. While the Veteran believes he has current diagnoses of glass fragment injuries to his right arm, left thigh, and back, he is not competent to provide diagnoses or etiology opinions in this case. The issue is medically complex, and the Veteran does not have medical training or expertise. Jandreau, 492 F.3d at 1377. Consequently, the Board gives more probative weight to the competent medical evidence. The examiners reviewed the claims file and conducted two in-person examinations. The examiners also provided detailed rationales to support their conclusions. More importantly, the existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). In the absence of evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The March 2017 and April 2018 VA examiners found no current muscle injuries to the Veteran's back and right arm. Absent a current diagnosis, the Board must find that the preponderance of the evidence is against the Veteran's claims for service connection for a right arm and a back disability due to a glass valve explosion. Additionally, with regards to the Veteran's left thigh, the Board finds any thigh disability was not manifested in and has been not shown to be related to his active duty service. The VA examiner rendered a negative nexus opinion and found the protrusion was a probable lipoma. Additionally, the record is silent for any complaints of a thigh injury for over three decades. There is no doubt to be resolved. Therefore, the claim of entitlement to service connection for a left thigh disability due to a glass fragment injury must be denied. In reaching the above determinations, the Board has considered the applicability of the benefit of the doubt doctrine for all three claims. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hetman 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.