Citation Nr: 0003586 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 97-33 260 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for residuals of shrapnel wounds to the eyes, arms and hands. 2. Entitlement to service connection for residuals of shrapnel wounds to the chest. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W. Yates, Associate Counsel INTRODUCTION The appellant served on active duty from May 1967 to April 1969 and from June 1970 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in No. Little Rock, Arkansas. That rating decision, in pertinent part, denied the appellant's claims for service connection for: (1) residuals of shrapnel wounds to the eyes, arms and hands; (2) residuals of shrapnel wounds to the chest; and (3) depression. In June 1999, the Board issued a decision that denied the appellant's claim for service connection for depression. The Board's June 1999 decision remanded the issues relating to service connection for residuals of shrapnel wounds for an additional medical examination of the appellant and medical opinions. Pursuant to a change in his address, the appellant's claims file was transferred in August 1999 to the RO at St. Louis, Missouri. The Board now proceeds with its review of the appeal. FINDINGS OF FACT 1. There is no competent medical evidence of any current residuals of shrapnel wounds to the eyes, arms, hands and chest. 2. The appellant has not presented a plausible claim for service connection for shrapnel wounds to the eyes, arms, hands and chest. CONCLUSIONS OF LAW 1. The appellant has not presented a well-grounded claim for service connection for residuals of shrapnel wounds to the eyes, arms and hands. 38 U.S.C.A. § 5107(a) (West 1991). 2. The appellant has not presented a well-grounded claim for service connection for residuals of shrapnel wounds to the chest. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Preliminary Considerations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). Direct service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(a), (b), (d) (1999). Establishing direct service connection for a disability which has not been clearly shown in service requires the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(d) (1999); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). The law provides that "a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991). A well- grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [section 5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Generally, for a service-connection claim to be well grounded a claimant must submit evidence of each of the following: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the asserted in-service injury or disease and the current disability. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Elkins v. West, 12 Vet. App. 209, 213 (1999) (en banc) (citing Caluza, supra, and Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) (expressly adopting definition of well-grounded claim set forth in Caluza, supra), cert. denied sub nom. Epps v. West, 524 U.S. 940, 118 S. Ct. 2348, 141 L. Ed. 2d 718 (1998) (mem.)). Alternatively, either or both of the second and third Caluza elements can be satisfied under 38 C.F.R. § 3.303(b) by the submission of (a) evidence that a condition was "noted" during service or during an applicable presumption period; (b) evidence showing post service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). The credibility of the evidence presented in support of a claim is generally presumed when determining whether it is well grounded. See Elkins, 12 Vet. App. at 219 (citing Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995)). II. Factual Background The RO has retrieved the appellant's service medical records and they appear to be complete. The appellant served on active duty in the United States Army from May 1967 to April 1969 and from June 1970 to July 1975. A review of his inservice medical records revealed treatment for the removal of two metallic foreign bodies from the right axilla and chest in June 1971. In April 1975, the appellant's discharge examination was conducted. The report of this examination noted that the appellant eyes, upper extremities, lungs, chest and skin were normal. The report also noted that the appellant's uncorrected distance vision was 20/20, bilaterally. In January 1997, the appellant filed his current application for compensation, VA Form 21-526, seeking service connection for residuals of shrapnel wounds to the eyes, arms, hands and chest. Although requested by the form, the appellant listed no post service medical treatment for these conditions. In March 1997, a VA general physical examination was conducted. The report of this examination noted the appellant's narrative history of metal fragment wounds to the right hand, arm and chest. Physical examination revealed, in part: On inspection of the right hand, he points to an area over the palmer surface where he had shrapnel injury. I do not see scars. I do not feel shrapnel in the subcutaneous regions of the right arm, but I will do appropriate x-rays of the arm and hand. I also do not feel any metallic fragments over the chest. Again, a chest x-ray will be done. X-ray examinations of the appellant's right arm and chest were normal. The report of a VA eye examination, also performed in March 1997, noted a diagnosis of color deficiency. No residuals of a shrapnel injury were noted. In October 1997, the appellant filed his substantive appeal, VA Form 9. On his appeal form, the appellant indicated that "the scars on chest are about 1 inch long and are easy to see." He also indicated that "[t]he wound in the hand is [sore] and hurts to touch. No pressure was put on the wound during the C & P exam[ination]." Pursuant to the appellant's statements, the Board remanded this matter in June 1999 for an additional medical examination and medical opinions. In September 1999, the VA medical center scheduled the appellant for both VA joint and skin examinations. The appellant, however, failed to attend these examinations. In October 1999, the RO sent correspondence to the appellant indicating that he had missed his scheduled VA examination, and that he should contact the RO within 60 days if he is now willing to report for an examination. The RO's letter also noted that "we will make a decision based on the evidence in file," if no examination is conducted. Thereafter, no response from the appellant was received. III. Analysis When entitlement to a benefit can not be established without a current VA examination and a claimant, without good cause, fails to report for such examination, "action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc." 38 C.F.R. § 3.655(a) (1999). Pursuant to 38 C.F.R. § 3.655(b), "[w]hen a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record." The Board notes that it had previously remanded this matter for an additional medical examination of the appellant's condition. Although a VA medical examination was scheduled for the appellant in September 1999, he failed to report for this examination. In October 1999, the RO sent correspondence to the appellant requesting that he notify the RO within 60 days if he was now willing to attend a VA examination. No response was ever received. Given the lack of response from the appellant, the Board concludes that his failure to attend the September 1999 examination was without good cause, and pursuant to 38 C.F.R. § 3.655(b), the Board shall decide this claim on the evidence of record. Review of the appellant's claims requires the Board to provide a written statement of the reasons or bases for its findings and conclusions on material issues of fact and law. 38 U.S.C.A. § 7104(d)(1) (West 1991). The statement must be adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (the Court). See Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Masors v. Derwinski, 2 Vet. App. 181, 188 (1992). Furthermore, as the Court has pointed out, the Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record or adequate quotation from recognized medical treatises. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). After a thorough review of the appellant's claims file, the Board concludes that the appellant has failed to meet his initial burden of presenting evidence that his claims for service connection for residuals of shrapnel wounds to the eyes, arms, hands and chest are plausible or otherwise well grounded. Rabideau v. Brown, 2 Vet. App. at 141. Although the appellant was treated for removal of metallic foreign bodies from the right axilla and chest during his active duty service, there is no medical evidence of record showing any treatment for or diagnosis of any current residuals of this inservice injury. The appellant's discharge examination, dated April 1975, noted that his eyes, upper extremities, lungs, chest and skin were normal. The report also noted that the appellant's uncorrected distance vision was 20/20, bilaterally. The report from the appellant's current VA general physical examination, performed in March 1997, found no scars or shrapnel in the subcutaneous regions of right arm and chest. In addition, X- ray examinations of the right arm and chest were normal. The appellant's eye examination, performed in March 1997, was also silent as to any current residuals of a shrapnel injury. Accordingly, there is no competent medical evidence of any current for residuals of shrapnel wounds to the eyes, arms, hands and chest. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (absent "proof of a present disability there can be no claim"). See also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (wherein the United States Court of Appeals for the Federal Circuit recognized as "rational" VA's long- standing requirement that service connection be granted only in cases of currently existing disability, even where not specifically required by statute). The Board has thoroughly reviewed the claims file, but finds no evidence of a plausible claim for service connection for residuals of shrapnel wounds to the eyes, arms, hands and chest. Since the appellant has not met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded, it must be denied. See Boeck v. Brown, 6 Vet. App. 14, 17 (1993) (if a claim is not well-grounded, the Board does not have jurisdiction to adjudicate it). Regulations affording the appellant the benefit of the doubt, as provided by 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102, do not apply where the appellant has not submitted a well- grounded claim. Holmes v. Brown, 10 Vet. App. 38 (1997). Where the appellant has not met the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claims are well grounded, the VA has no duty to assist him in developing facts pertinent to his claims, including no duty to provide him with another medical examination. 38 U.S.C.A. § 5107(a) (West 1991); Rabideau, 2 Vet. App. at 144 (where the claim was not well grounded, VA was under no duty to provide the veteran with an examination); Morton v. West, 12 Vet. App. 477 (1999) (VA cannot assist a claimant in developing a claim which is not well-grounded); see also Roberts v. West, 13 Vet. App. 185 (1999)(The Court held that Stegall v. West, 11 Vet. App. 268, 271 (1999), was not enforceable in the absence of a well- grounded claim.) However, where a claim is not well grounded it is incomplete, and depending on the particular facts of the case, VA may be obliged under 38 U.S.C.A. § 5103(a) to advise the claimant of the evidence needed to complete his application. This obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. at 78. Here, unlike the situation in Robinette, the veteran has not put VA on notice of the existence of any specific, particular piece of available evidence that could make his claims well grounded. See also Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). Accordingly, the Board concludes that VA did not fail to meet its obligations under 38 U.S.C.A. § 5103(a) (West 1991). ORDER Because it is not well grounded, the claim for service connection for residuals of shrapnel wounds to the eyes, arms and hands is denied. Because it is not well grounded, the claim for service connection for residuals of shrapnel wounds to the chest is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals