BVA9508052 DOCKET NO. 90-06 967 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for the residuals of shell fragment wounds of the left chest. REPRESENTATION Appellant represented by: James W. Stanley, Jr., Attorney WITNESSES AT HEARINGS ON APPEAL Appellant and F. Groceman ATTORNEY FOR THE BOARD Milo H. Hawley, Counsel INTRODUCTION The veteran had active service from December 1943 to March 1946. By decision in May 1988, the Board of Veterans' Appeals denied service connection for residuals of shell fragment wounds to the left chest and left leg and residuals of burns on the back. Subsequent thereto, the veteran has submitted additional evidence in an attempt to reopen his claim for service connection for residuals of shell fragment wounds of the left chest and left leg and burns on the back. This matter came before the Board on appeal from a rating decision of January 1989 by the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO). In a decision dated in April 1991, the Board denied the veteran's claims to establish service connection for the residuals of shell fragment wounds of the left chest and left leg and burns on the back. The veteran appealed the Board's decision to the United States Court of Veterans Appeals (Court). In a decision dated in September 1992, the Court vacated the April 1991 decision and remanded the case to the Board for further proceedings. The Court held that new and material evidence had been submitted to reopen the claims to establish service connection for the residuals of shell fragment wounds of the left chest and left leg and burns on the back. In April 1993, the Board remanded the case for additional development. A rating decision in May 1994 granted service connection for scars which were residuals of shell fragment wounds of the left leg and granted service connection for residuals of burns to the back. This decision continued to deny service connection for residuals of shell fragment wounds of the left lateral chest. In a June 1994 letter, the veteran's representative indicated that the issues of an increased rating for post-traumatic stress disorder and entitlement to a total rating based upon individual unemployability due to service-connected disability were being appealed. These issues are not in appellate status and are referred to the RO for its consideration. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran sustained shell fragment wounds to his left chest when a suicide plane struck the ship that he was serving on during World War II. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that a preponderance of the evidence is against the claim for service connection for residuals of shell fragment wounds of the left chest. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. Residuals of shell fragment wounds of the left chest are not shown to exist. CONCLUSION OF LAW Residuals of shell fragment wounds of the left chest were not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107. The Board is satisfied that all relevant facts have been properly developed and that no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. The Board notes that the veteran's claim for service connection for residuals of shell fragment wounds of the left chest was previously denied by a Board decision in May 1988. The Court, in its September 1992 decision, found that new and material evidence had been submitted to reopen the veteran's claim for residuals of shell fragment wounds of the left chest. A May 1994 rating decision which continued to deny service connection for residuals of shell fragment wounds to the left chest noted the May 1988 Board decision which had previously denied this issue. A supplemental statement of the case was issued in May 1994 which states the issue as whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for residuals of shell fragment wounds of the left chest. The law and regulations provided the veteran in the May 1994 supplemental statement of the case apply to both a review on a new and material basis as well as a review on a de novo basis after a claim has been reopened. In the reasons for decision, it was noted that the prior denial was based on a lack of evidence of shell fragment wounds to the left chest in the veteran's service medical records, and that denial was confirmed and continued on the basis of there being no evidence of any residuals of wounds of the left side of the chest. Since the RO has considered the current issue on appeal to be whether new and material evidence has been submitted to reopen the veteran's claim, the Board must consider whether the veteran has received adequate notice of the need to submit evidence or argument on the question of a de novo review of his claim, and if the veteran has not been provided with such opportunity whether he will be prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384, 394 (1993). Initially, the Board notes that the Court's September 1992 decision notified the veteran that new and material evidence had been submitted and that his claim was reopened. Although the RO used language in the May 1994 rating decision and supplemental statement of the case which reflects consideration of the May 1988 Board decision, both the March 1989 statement of the case and the May 1994 supplemental statement of the case included law and regulations relating to how service connection is determined based on a de novo review of the record. Further, the veteran's testimony, offered at two separate hearings, and argument submitted on his behalf, address the issue of service connection for residuals of shell fragment wounds of the left chest on a de novo basis. In light of the notice to the veteran that his claim had been reopened, the provision to the veteran of law and regulations relating to a de novo review on the issue of service connection for residuals of shell fragment wounds of the left chest, and the testimony offered at two separate hearings as well as argument presented on the veteran's behalf on a de novo basis, the Board finds that the veteran will not be prejudiced by its addressing the claim for entitlement to service connection for the residuals of shell fragment wounds of the left chest on a de novo basis. Service medical records reflect that, in May 1945, the veteran was seen with a ruptured tympanic membrane on the left which occurred as a result of enemy aerial attack while the veteran was stationed on board the U.S.S. New Mexico. Service medical records, including the report of a March 1946 medical survey, are silent for complaint, finding, or treatment with respect to any shell fragment wound to the left chest. The report of the veteran's separation from service reflects that he was awarded the Purple Heart Medal for wounds received in action against the enemy. Other service personnel records reflect that the Purple Heart was awarded to the veteran in June 1945. In a formal claim, filed by the veteran in March 1946, he reports that he received shrapnel wounds to the left side in 1945. The reports of VA medical and orthopedic examinations in March 1948, reflect no complaint, finding, or treatment with respect to shell fragment wounds of the left chest. The reports of VA examinations, and VA hospital clinical records from 1960 to 1986, including the report of a May 1971 VA X-ray of the veteran's chest, are silent for complaint, finding, or treatment with respect to residuals of shell fragment wounds of the left chest. The report of a March 1987 VA examination states that the veteran reported that he received shrapnel wounds to the left lateral chest. The examination and the impression, and the report of X-rays of the veteran's chest, reflect no finding with respect to residuals of shell fragment wounds to the left lateral chest. Letters from three former service comrades, all dated in November 1988, reflect that the veteran sustained shrapnel wounds during his service on the Battleship U.S.S. New Mexico. One letter indicates that the veteran received scattered shrapnel wounds, including to his chest. In December 1988, the veteran submitted a copy of a letter from a military recruiting service reflecting that the veteran had been rejected for enlistment in the Army by reason of chest X-ray. During the veteran's personal hearing in December 1989, he testified that he had sustained shrapnel wounds to the left side of his chest at the time a suicide plane struck the U.S.S. New Mexico. When asked how deep the shell fragment wounds were, the veteran indicated that one in his leg was fairly deep. He testified that it was approximately 40 years ago that the last piece of shrapnel came out. The report of a January 1990 VA examination reflects that the veteran reported that he received shrapnel injuries while on board ship. No finding nor diagnosis was offered which indicated residuals of shrapnel wounds of the left chest. During the veteran's personal hearing held in May 1993, he testified that he believed that there was a little piece of shrapnel left in his left side. The report of a July 1993 VA examination states that the veteran reported multiple shrapnel wounds as a result of his ship being hit by suicide bombers. On examination, there were no scars visible on the veteran's chest. The impression indicated that the veteran had sustained multiple shrapnel wounds during World War II, but there were no visible scars on his chest relative to those injuries. The report of a January 1993 VA chest X-ray reflects no finding which is residual to shell fragment wounds. A history regarding the U.S.S. New Mexico was received in October 1991. It reflects that the ship was struck on two different occasions by suicide bombers. The Board finds that the veteran's testimony with respect to sustaining shell fragment wounds in the left chest is credible. However, in order for service connection to be granted, it must be shown that there is current disability which is residual to an injury which was incurred during active service. Therefore, while the incurrence of shell fragment wounds to the left chest during active service is accepted, it still must be shown that there is disability which is residual to that injury in order for service connection to be granted. The veteran has testified that he believes that there may still be a small piece of shrapnel on his left side. However, the clinical evidence which has developed over the years, including reports of chest X-rays, reflect no findings which would indicate that residuals of shell fragment wounds to the left chest, including a piece of metal shrapnel, exist. The Board finds that the clinical evidence with respect to whether or not a metal fragment remains in the veteran's left chest is more probative than the veteran's lay statement since a metal fragment would show up on an X-ray. Further, the veteran has been afforded a recent examination for the specific purpose of determining if he has residuals of shell fragment wounds to the left chest. The report of that examination indicates that no residuals, including scars, exist with respect to shell fragment wounds of the left chest. In light of the absence of any complaint or finding with respect to residuals of a shell fragment wound of the left chest from the time of the veteran's active service until 1987, and in light of negative clinical findings with respect to any residual even when specifically examined for that purpose, the Board finds that a preponderance of the evidence reflects that residuals to the shell fragment wounds to his left chest do not currently exist. Since the veteran does not have residual disability as a result of shell fragment wounds sustained to his left chest during his active service, service connection may not be granted for that disability. 38 U.S.C.A. §§ 1110, 5107. ORDER Service connection for residuals of shell fragment wounds of the left chest is denied. E. W. SEERY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.