Citation Nr: 0007197 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 97-08 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of shrapnel wounds to the left arm and left shoulder. REPRESENTATION Appellant represented by: AMVETS INTRODUCTION The veteran had active service from March 1941 to October 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1995 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. FINDINGS OF FACT 1. An unappealed April 1989 RO decision denied service connection for a left shoulder wound. 2. Evidence received since the April 1989 RO decision is new and bears directly and substantially on the matter under consideration and is so significant that it must be considered in order to fairly decide the claim. 3. The veteran has residuals of shrapnel wounds to the left arm and left shoulder that were incurred while engaged in combat with the enemy during his service on Okinawa. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim of entitlement to service connection for residuals of shrapnel wounds to the left upper extremity is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1999). 2. Residuals of shrapnel wounds to the left arm and left shoulder were incurred during active service. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304(d) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS An April 1989 RO decision denied service connection for residuals of wounds to the left upper extremity. The veteran was notified of that decision, and his appellate rights, but he did not initiate an appeal. He is now seeking to reopen his claim for service connection for residuals of shrapnel wounds to the left shoulder and left arm. With respect to this claim, the Board finds, as discussed below, that he has submitted new and material evidence. Evidence of record prior to the April 1989 RO decision included responses from the National Personnel Records Center indicating that the veteran's service medical records had been destroyed in a fire. Subsequent to the April 1989 RO decision additional evidence has been added to the record including service records reflecting that the veteran reported to the 68th Field Hospital on May 21, 1945, and remained there until May 25, 1945. At that time the veteran was a member of the 632nd Ordnance Ammunition Company. Additional records reflect that the 632nd Ordnance Ammunition Company arrived on Okinawa Island on April 1, 1945, and that all records of the 632nd Ordnance Ammunition Company along with a majority of its personnel were lost in the battle of Okinawa. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. If a claim for service connection was previously denied, a veteran must submit new and material evidence in order to reopen his claim. New and material evidence means evidence not previously submitted to agency decisionmakers that bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156. Under the test established by Elkins v. West, 12 Vet. App. 209 (1999) (en banc), it must first be determined whether the veteran has presented new and material evidence. See Winters v. West, 12 Vet. App. 203 (1999) (en banc). Prior to the April 1989 RO denial there was no evidence of record indicating that the veteran was present on Okinawa in April and May 1945 or that he received medical care in May 1945. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), it was noted that while "not every piece of new evidence is 'material'; we are concerned, however, that some new evidence may well contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Considering this, the Board concludes that new evidence relating to the veteran's presence on Okinawa and receipt of medical care contributes "to a more complete picture of the circumstances surrounding the origin of" the veteran's left arm and shoulder injury. Id. Therefore, new and material evidence has been submitted and the claim is reopened. Having determined that new and material evidence has been submitted under the Hodge standard, the Board must now determine whether the claim is well grounded. Winters. A November 1995 private medical record reflects that the veteran reported receiving shrapnel injury to his left upper extremity during World War II on the island of Okinawa. The record reflects that it was very likely that the onset of the veteran's left shoulder disability could be due to the injury the veteran experienced 50 years before. Reports of VA examinations, conducted in May 1996, reflect diagnoses including history of shrapnel wound to the left shoulder and arm. The veteran's reports with respect to the incurrence of a shrapnel wound to the left upper extremity are presumed credible for purposes of determining whether or not his claim is well grounded. Accordingly, since there is competent medical evidence of a current disability and of a nexus between that disability and the veteran's reported inservice shrapnel wound, his claim is well grounded. Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Brammer v. Derwinski, 3 Vet. App. 232, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). The record reflects that the veteran has reported that he sustained a shrapnel wound to the left shoulder and arm while serving in Okinawa. The record reflects that the veteran was a member of the 632nd Ordnance Ammunition Company. Morning reports reflect that the 632nd Ordnance Ammunition Company landed on Okinawa Island on April 1, 1945. Morning reports also reflect that the veteran was transferred from duty to the 68th Field Hospital on May 20, 1945, and returned to duty on May 25, 1945. Historical data, relating to the 632nd Ordnance Ammunition Company reflects that the unit was located on Okinawa Island in May 1945 and it was reorganized in June 1945. The historical data also reflects that all records of the unit along with a majority of its personnel were lost in the battle of Okinawa. With consideration that the veteran was assigned to the 632nd Ordnance Ammunition Company and this company was present on Okinawa in April and May 1945, during which time the battle of Okinawa was occurring, as well as official records reflecting that the majority of the personnel of the veteran's company were lost in the battle of Okinawa, the Board concludes that the evidence is in equipoise with respect to whether or not the veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. In resolving all doubt in the veteran's behalf, the Board concludes that the veteran did engage in combat with the enemy as that term is used in 38 U.S.C.A. § 1154(b). See VAOPGCPREC 12-99 (October 18, 1999). Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service, even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Although the veteran has reported that his injury occurred in 1944 while on Okinawa, with consideration of the approximately 50 years that have elapsed between the incident and his current recollection, the Board concludes that the injury to which the veteran refers occurred in 1945 during the battle of Okinawa. While there is no official record of the veteran incurring a shrapnel wound to the left shoulder and left arm and his report of separation reflects that he did not receive wounds in action, there is official evidence that he was placed in a field hospital from May 20 to 25, 1945, and that all of the records and the majority of the personnel of his company were lost in the battle of Okinawa. On the basis of this record, the Board concludes that the evidence is in equipoise with respect to whether or not the veteran's reported shrapnel wound to the left shoulder and arm is consistent with the circumstances, conditions or hardships of his service and in resolving all doubt in his behalf he did sustain a shrapnel wound to the left shoulder and left arm. Further, there is competent medical evidence, in the form of the November 1995 private medical statement and the reports of May 1996 VA examination that indicate that he has residuals of shrapnel wound of the left shoulder and arm relating to the injury during service. Therefore, in resolving all doubt in the veteran's behalf, service connection for residuals of shrapnel wounds to the left arm and left shoulder is warranted. 38 U.S.C.A. § 5107. ORDER Service connection for residuals of shrapnel wounds to the left arm and left shoulder is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND In the Board's July 1998 introduction section of the Remand it was noted that a December 1995 rating action denied service connection for hearing loss in the left ear. It was further noted that a notice of disagreement was received from the veteran in April 1996 and the issue of entitlement to service connection for hearing loss in the left ear was referred to the RO for appropriate appellate development. Subsequent to the Board's Remand the case of Manlincon v. West, 12 Vet. App. 238 (1999), held that where there is an notice of disagreement a Remand, not referral, is required by the Board. In light of the foregoing, this issue is REMANDED to the RO for the following: The RO should issue a statement of the case addressing the issue of entitlement to service connection for hearing loss in the left ear. All appropriate appellate procedures should then be followed. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. In taking this action, the Board implies no conclusion, either legal or factual, as to the ultimate outcome warranted. No action is required of the veteran unless he is other wise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). MILO H. HAWLEY Acting Member, Board of Veterans' Appeals