Citation Nr: 0606687	
Decision Date: 03/08/06    Archive Date: 03/23/06

DOCKET NO.  94-43 194	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, 
Massachusetts


THE ISSUE

Entitlement to service connection for the residuals of a 
shell fragment wound of the left shoulder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARINGS ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

D. J. Drucker, Counsel

INTRODUCTION

The veteran had active military service from October 1964 to 
September 1968.

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from a June 1993 rating decision of the Department 
of Veterans Affairs (VA) Regional Office (RO) in Boston, 
Massachusetts, that denied the veteran's claims for service 
connection for back and skin disorders, and residuals of a 
shell fragment wound of the left shoulder.  In December 1996, 
the Board remanded the veteran's case to the RO to afford him 
the opportunity to testify at a hearing before a Veterans Law 
Judge.  In October 1997, the veteran testified at a hearing 
at the RO before the undersigned.

In March 1998, the Board remanded the veteran's case to the 
RO.  Thereafter, in a January 2001 rating decision, the RO 
granted service connection and a compensable disability 
evaluation for chronic low back pain, degenerative disc 
qbeard@example.com.  The RO's action constitutes a full grant of 
the benefits sought as to the veteran's claim for service 
connection for a back disorder.

In June 2001, the Board remanded the veteran's remaining two 
claims to the RO for further development.  Then, in an August 
2004 decision, the Board denied the veteran's claim for 
service connection for a skin disorder described as a rash 
and dermatitis of the hands, claimed as a residual of 
exposure to Agent Orange.  At that time, the Board remanded 
the veteran's claim for service connection for residuals of a 
shell fragment wound of the left shoulder to the RO for 
further development. 


FINDING OF FACT

Giving the veteran the benefit of the doubt, the objective 
and competent medical evidence of record is consistent with 
his account of sustaining a shell fragment wound to the left 
shoulder, and his residuals of a shell fragment wound, to 
include two or three unremarkable scars in the left shoulder 
area, are related to his period of active military service.

CONCLUSION OF LAW

Resolving the doubt in the veteran's favor, residuals of a 
shell fragment wound of the left shoulder, to include two or 
three unremarkable scars in the left shoulder area, were 
incurred during military service.  38 U.S.C.A. §§ 1110, 5103-
5103A, 5107 (West 2002 & Supp. 2005)); 38 C.F.R. §§ 3.102, 
3.159, 3.303 (2005).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.	Duty to Notify and Assist

The Veterans Claims Assistance Act (VCAA), Public Law No. 
106-475, 114 Stat. 2096 (2000), substantially amended the 
provisions of chapter 51 of title 38 of the United States 
Code and, among other things, eliminated the requirement of a 
well-grounded claim and enhanced the notice and assistance to 
be afforded to claimants in substantiating their claims.  
VCAA § 3(a), 114 Stat. 2096, 2096-97 (now codified as amended 
at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2005)).  In 
addition, VA has published regulations to implement many of 
the provisions of the VCAA.  See 66 Fed. Reg. 45,620 (Aug. 
29, 2001) (now codified as amended at 38 C.F.R. §§ 3.102, 
3.156(a), 3.159, and 3.326(a) (2005)).

With regard to the VCAA, it appears clear in this case that 
all obtainable evidence identified by the appellant relative 
to the issue adjudicated in this decision has been obtained 
and associated with the claims folder.  The record on appeal 
is sufficient to resolve the matter of service connection for 
residuals of a shell fragment wound of the left shoulder.  In 
view of the disposition below granting the claim on appeal, 
no useful purpose would be served by delaying the 
adjudication of this issue further to conduct additional 
development pursuant to the VCAA.  

It is the Board's responsibility to evaluate the entire 
record on appeal.  See 38 U.S.C.A. § 7104(a) (West 2002).  
When there is an approximate balance in the 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.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2005).  

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court 
of Appeals for Veterans Claims held that a veteran need only 
demonstrate that there is an "approximate balance of 
positive and negative evidence" in order to prevail.  The 
Court has also stated, "It is clear that to deny a claim on 
its merits, the evidence must preponderate against the 
claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), 
citing Gilbert.

II.	Factual Background

The veteran's service medical records are entirely negative 
for any reference to complaints or diagnosis of, or treatment 
for, a shell fragment wound of the left shoulder.  When 
examined for discharge in August 1968, the veteran's upper 
extremities were normal.  It was noted that his left arm was 
fractured in 1960, and casted for three weeks, with no 
complications or sequelae.  The veteran had full strength and 
range of motion of the left arm.  The examination report also 
notes that he was treated for a skin disorder while in 
Vietnam.

The veteran's service personnel records indicate that he was 
assigned to the Philippines from July 1967 to September 1968.  
His main occupational specialty was hydraulic repairman at 
Clark Air Base.  An April 1968 performance appraisal, for the 
period from March 1967 to March 1968, documents that the 
veteran was on temporary duty (TDY) to "SEA" (Southeast 
Asia) on "numerous occasions."  It was noted that, while 
working under adverse conditions and constant threat of 
hostile fire, he accurately analyzed pneudraulic malfunctions 
and corrected them in minimum time without sacrificing 
quality.  The veteran's Report of Transfer or Discharge (DD 
Form 214), and a Correction to the DD Form 214 (DD Form 215) 
issued in September 1968, indicate that his awards and 
decorations include a Vietnam Service Medal.

A unit history of the 405th Field Maintenance Squadron to 
which the veteran was assigned, was received by the RO in 
September 2001, and reflects that Clark Air Base became the 
main operating base for Tuy Hoa Air Base in Vietnam to 
provide engine support.  The report is not referable to the 
January 1968 aircraft incident described by the veteran.

Post service, a memorandum dated in February 1981 from a 
representative of The American Legion to the veteran 
indicates that efforts to obtain his service medical records 
were unsuccessful.

In April 1993, the veteran submitted his original claim for 
VA disability benefits.  He said that on January 18, 1968, he 
sustained shrapnel wound to his left shoulder while on flight 
number 651, that was fired upon while landing in Qui Nhon.

A May 1993 VA examination report reflects that the veteran 
complained of low back pain and reported injury in a jeep 
explosion that was struck by enemy fire in Vietnam in 
December 1967.  On examination, it was noted that the veteran 
had scars in the left shoulder area.  There was a 2 x by 2 
centimeter (cm.) area over the mid-lateral position of the 
deltoid region that was compatible with a shrapnel wound but 
was an unremarkable scar.  There was a smaller, linear scar 
over the mid scapular posteriorly on the left.  There was 
also a scar on the lower thoracic area on the left over the 
paravertebral musculature 3 cm. in length that was 
unremarkable.  Range of motion of the left shoulder was 
abduction and flexion both to 100 degrees, external rotation 
to 90 degrees, and extension to 40 degrees.  There was mild 
crepitus on rotation in the rotator cuff of the left shoulder 
that was nontender.

In a September 1993 signed statement, R.L.M., the veteran's 
service comrade, said that they served together between 1967 
and 1968 and went on TDY to Da Nang and Thailand.  He 
recalled that while on TDY in Da Nang in December 1967, the 
veteran sustained a back injury in a jeep accident.  R.L.M. 
said that he was at Clark Air Force Base in the Philippines 
when he heard that the veteran was injured again in transit 
from Da Nang to a base farther south in Vietnam.

During his May 1994 personal hearing at the RO, the veteran 
testified that he had two tours of duty in Vietnam, including 
from approximately November 1967 to February 1968.  He said 
there was daily exposure to rocket and mortar fire.  He 
indicated that in about January 1968 he sustained a shrapnel 
wound as he was leaving Da Nang and returning to Clark Air 
Base when his group was subjected to enemy fire after landing 
an aircraft.  He was treated in a mess hall just off the 
runway by an Air Force medic who pulled several hunks of 
metal out of his shoulder and bandaged it.  The veteran said 
he then flew to Saigon and stayed in a transit billet for 
several hours.  He later went to a hospital where his wound 
was redressed, and he received tetanus and cholera shots.  A 
few hours later he boarded a plane and returned to the 
Philippines.  He said his wounds did not bother him very much 
and he had two shoulder scars.  The veteran's accredited 
service representative maintained that the incident occurred 
during combat.  

During his October 1997 Board hearing, the veteran testified 
that he sustained a left shoulder wound in January 1968 as he 
was leaving Da Nang for Saigon.  He said they landed at Quin 
Nhon under fire, some rounds came through the side of the 
aircraft, and he picked up some pieces of metal in his 
shoulder.  He was treated by an Air Force medic just off the 
runway at Quin Nhon and, the next morning, was treated by 
Captain B. at Tan Son Nhut Air Base hospital (see transcript, 
p. 9).  He received two injections and his wounds were 
cleaned and redressed.  He was put in a transit billet and 
flew back to Clark Air Base later that day.  The veteran said 
that at Clark Air Base his shoulder was redressed once and he 
was told to return if it bothered him.  He returned to duty, 
his shoulder healed, and he never had any problems.  He said 
physicians have told him he lost a little left shoulder 
motion.  The veteran further indicated that x-rays showed 
there were no metal pieces left in the shoulder and, to his 
knowledge, there was no bone damage from the shell fragment 
wound.

During the pendency of the veteran's case, both the Board and 
the RO repeatedly, but unsuccessfully, attempted to secure 
additional service medical records from the National 
Personnel Records Center and information regarding the 
January 1968 incident described by the veteran from the U.S. 
Army and Joint Services Records Research Center (JSRRC) 
(previously U.S. Army Armed Services Center for Unit Records 
Research (CURR)).

In an August 2002 written statement, the veteran maintained 
that records of his left shoulder injury would be located 
with transit records out of Saigon.  In a November 2005 
written statement, he reiterated that he was treated by Dr. 
B. at the Tan Son Nhut Hospital for his shoulder wound.

III.	Legal Analysis

Pursuant to 38 U.S.C.A. § 1110, a veteran is entitled to 
disability compensation for disability resulting from 
personal injury or disease incurred in or aggravated by 
service.  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.  If chronicity in service 
is not established, a showing of continuity of symptoms after 
discharge is required to support the claim.  38 C.F.R. § 
3.303(b).  Service connection may also be granted for any 
disease diagnosed after discharge when all of the evidence 
establishes that the disease was incurred in service.  38 
C.F.R. § 3.303(d).

The United States Court of Appeals for Veterans Claims has 
consistently held that, under the law cited above, "[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).  

The veteran has contended that service connection should be 
granted for the residuals of a shell fragment wound to the 
left shoulder that he maintains was incurred in approximately 
January 1968, during his active service, when he was sent 
from the Philippines to Vietnam on temporary duty.  In his 
oral and written statements, he described the hostile 
conditions to which he was exposed, including daily exposure 
to rocket and mortar fire, and submitted a signed statement 
from R.L.M., a service comrade, that described their tours of 
TDY, and his recollection of hearing that the veteran was 
injured in transit from Da Nang to another base in Vietnam.  
The Board finds the veteran's testimony credible. 

When examined by a VA examiner in May 1993, the veteran 
reported a history of a low back injury that was incurred 
when he was blown out of a jeep struck by enemy fire in 
December 1967.  It was noted that he had two or three 
unremarkable scars in the left shoulder area that the 
examiner described as compatible with shrapnel wound.  The 
examining physician did not find that the veteran's left 
shoulder scars were inconsistent with a history of shrapnel 
wound. 

In light of the foregoing, the Board finds that the evidence 
of record is consistent with the veteran's contentions.  The 
veteran has repeatedly asserted that he sustained a left 
shoulder shrapnel wound in approximately January 1968 in 
service.  The April 1968 performance record, for the period 
from March 1967 to March 1968, indicates that the veteran 
went on TDY to Southeast Asia on numerous occasions and 
worked under constant threat of hostile fire.  At the time of 
the May 1993 VA examination, the veteran reported a history 
of exposure to enemy fire in December 1967 in Vietnam.  That 
examiner reported that the veteran had scars in the left 
shoulder area compatible with shrapnel wound.  The veteran 
also a provided corroborating statement from a service 
comrade to the effect that during a TDY in about mid December 
1967, the veteran sustained a back injury in a jeep accident 
and was injured a second time in transit from Da Nang.  

Accordingly, the Board finds that the evidence is, at the 
very least, in equipoise as to whether the veteran has 
established the existence of an in-service left shoulder 
shell fragment wound consistent with the conditions at that 
time during the Vietnam era.  In 1993, the VA examiner 
reported left shoulder scars compatible with shrapnel wound.  
Resolving the benefit of the doubt in the veteran's favor, 
and without ascribing error to the action of the RO, service 
connection is established for residuals of a shell fragment 
wound to the left shoulder, to include two or three 
unremarkable scars in the left shoulder area.  38 U.S.C.A. §§ 
1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303.  





ORDER

Service connection for residuals of a shell fragment wound to 
the left shoulder, to include two or three unremarkable scars 
in the left shoulder area, is granted.



____________________________________________
N.R. ROBIN
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs



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