Citation Nr: 1007257 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 09-38 327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a right lower back scar. 2. Entitlement to service connection for a left eyebrow scar. 3. Entitlement to service connection for a bilateral wrist disorder. 4. Entitlement to service connection for pseudofolliculitis claimed as razor bumps. 5. Entitlement to service connection for a bilateral knee disorder (strain). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from October 2003 to October 2007. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Phoenix, Arizona, VA Regional Office (RO). The Veteran was afforded a travel Board hearing before the undersigned Veterans Law Judge in December 2009. A transcript of the hearing has been associated with the claims file. The issues of entitlement to service connection for a bilateral wrist disorder, razor bumps, and a bilateral knee disorder being remanded are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT In October 2009, prior to the promulgation of a decision in the appeal, the AOJ granted service connection for a right lower back scar and a left eyebrow scar, and thus, there is no longer a controversy regarding the benefits sought as to the claims of entitlement to service connection for a right lower back scar and a left eyebrow scar. CONCLUSION OF LAW There is no longer an issue of fact or law before the Board pertaining to the claims of entitlement to service connection for a right lower back scar and a left eyebrow scar. 38 U.S.C.A. §§ 511, 7104, 7105 (West 2002 & Supp. 2009); 38 C.F.R. §§ 20.101 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to the veterans or the dependents or survivors of veterans. 38 U.S.C.A. § 511(a) (West 2002 & Supp. 2009). All questions in a matter which under section 511(a) of title 38, United States Code, are subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. Final decisions on such appeals shall be made by the Board. Decisions of the Board shall be based on the entire record in proceedings and upon consideration of all evidence and material of record and applicable provisions of law and regulation. 38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2009). The Board may dismiss any appeal which fails to allege error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2009). In addition, a substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2009). Withdrawal may be made by the appellant or by his or her authorized representative, except that a representative may not withdraw a substantive appeal filed by the appellant personally without the express written consent of the appellant. 38 C.F.R. § 20.204(c) (2009). In October 2009, after the Veteran filed a notice of disagreement in regard to service connection for entitlement for a right lower back scar and entitlement to service connection for a left eyebrow scar, the AOJ granted the claims. Therefore, the issues on appeal in regard to those claims has been resolved and has rendered moot the administrative claim on appeal to the Board. Therefore, having resolved the Veteran's claim in his favor, there is no longer a question or controversy remaining. 38 C.F.R. § 3.4 (2009). The Board notes no exceptions to the mootness doctrine present because the relief sought on appeal, the initial award of service connection, has been accomplished without the need for action by the Board. See, e.g., Thomas v. Brown, 9 Vet. App. 269, 270 (1996); Hudgins v. Brown, 365, 367-68 (1995). 38 U.S.C.A. §§ 511, 7104, 7105 (West 2002 & Supp. 2009); 38 C.F.R. § 20.101 (2009). Accordingly, the issues of entitlement to service connection for a right lower back scar and left eyebrow scar must be dismissed. ORDER The appeal in regard to service connection for a right lower back scar is dismissed. The appeal in regard to service connection for a left eyebrow scar is dismissed. REMAND The Veteran asserts entitlement to service connection for a bilateral wrist disorder, pseudofolliculitis, claimed as razor bumps, and for a bilateral knee disorder (strain). The August 2009 VA examiner stated that it was unlikely that the knee and wrist symptoms treated in service were permanently aggravated by service and noted razor bumps prior to service entrance, noting no aggravation. The Board finds that the opinion is inadequate for a determination in this case. The Board notes that once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this case, the Board finds that the evidence is inadequate for a determination as to whether a bilateral wrist disorder, pseudofolliculitis, claimed as razor bumps, or a bilateral knee disorder (strain) was incurred or aggravated during service. Further development is necessary. In that regard, the Board notes that a veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such. 38 U.S.C.A. § 1111 (West 2002 & Supp. 2009); 38 C.F.R. § 3.304(b) (2009). Essentially, to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The provisions of 38 C.F.R. § 3.306(b) properly implements 38 U.S.C.A. § 1153, which provides that a pre-existing injury or disease will be presumed to have been aggravated in service in cases where there was an increase in disability during service. That is, clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles that may be considered to determine whether the increase is due to the natural progression of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(b) (2009). Moreover, "temporary or intermittent flare-ups of a pre- existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened." Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Accordingly, the case is REMANDED for the following action: 1. The AOJ should schedule the Veteran for a VA examination to determine the nature and etiology of any identified bilateral wrist disorder, skin disorder manifested by razor bumps, and/or bilateral knee disorder. The claims file should be made available for review in conjunction with the examination and the examiner's attention should be directed to this remand. All necessary tests should be accomplished. The AOJ should request that the VA examiner provide a medical opinion as to whether there is evidence that any identified wrist or knee disorder, bilaterally, or skin disorder manifested by razor bumps, to include pseudofolliculitis (a) clearly and unmistakably (obvious and manifest) existed prior to service entrance and (b) whether any such disorder clearly and unmistakably (obvious and manifest) was not chronically worsened during service. If the answer to either (a) or (b) above is negative, offer an opinion in terms of whether it is "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood) that any identified wrist disorder, left knee disorder, or disorder manifested by razor bumps, is related to active service. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 2. In light of the above, the claims should be readjudciated. The AOJ should ensure all directives in this remand have been accomplished, to the extent possible, to include review of any medical opinion obtained for completeness and to make sure that a response to all questions posed has been provided, and if not, further development should be undertaken in that regard. If the benefits sought on appeal remain denied, a supplemental statement of the case should be issued and the Veteran afforded a reasonable opportunity in which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs