Citation Nr: 1241981 Decision Date: 12/07/12 Archive Date: 12/13/12 DOCKET NO. 09-18 775 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for residuals of lacerations of the face. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from August 1945 to November 1946 and from October 1950 to April 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Atlanta, Georgia. In his May 2009 Appeal To Board Of Veterans' Appeals (VA Form 9), the Veteran requested a hearing before a Veterans Law Judge at the local regional office. However, in correspondence dated in September 2011, he indicated that he no longer wished to be scheduled for a hearing. The Board therefore finds that the Veteran has withdrawn the request to testify before the Board. 38 C.F.R. § 20.704. This matter was previously before the Board in February 2012 at which time it was remanded for additional development. It is now returned to the Board. As will be discussed further herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the February 2012 remand orders, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The preponderance of the evidence of record does not show that the Veteran has residuals of lacerations of the face that are manifested as a result of his period of active service. CONCLUSION OF LAW The criteria for establishing service connection for residuals of lacerations of the face have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court (Supreme Court) held that the blanket presumption of prejudicial error in all cases imposed an unreasonable evidentiary burden upon VA. Rather, the Supreme Court suggested that determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. Id. As such, in conformance with the precedents set forth above, on appellate review the Board must consider, on a case-by-case basis, whether any potential VCAA notice errors are prejudicial to the claimant. By letters dated in July 2005, January 2007, March 2007, and February 2012 the Veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. In this regard, the Board notes that some of the Veteran's service treatment records are not available for review. In March 1984 and April 1989, the National Personnel Records Center confirmed that there were no service treatment records as they had been destroyed in a fire. In May 2007, VA issued a Formal Finding on the Unavailability of Service Medical Records from August 8, 1945 until November 30, 1946 and October 18, 1950 until July 24, 1952. As such, all attempts to obtain additional copies of the Veteran's service treatment records have been exhausted, and further attempts would be futile. As a result, there is a heightened obligation to assist the Veteran in the development of his case, a heightened obligation to explain findings and conclusions and to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been or were destroyed while the file was in the possession of the government. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran's available VA medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. He has been medically evaluated. The Board further observes that this case was remanded in February 2012 in order to attempt to obtain the above-cited service treatment records, to obtain outstanding treatment records, and to obtain an additional VA medical opinion as to the etiology of the Veteran's asserted disorder. Thereafter, as discussed, efforts to obtain the service treatment records have been exhausted, additional VA treatment records have been associated with the claims file, and the Veteran was afforded a VA examination. Therefore, the Board finds that the agency of original jurisdiction has substantially complied with the remand directives such that no further action is necessary in this regard. See D'Aries, supra. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Service connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Veteran asserts that he has residuals of lacerations to the face that are manifested as a result of injuries sustained in a motor vehicle accident during his period of active service. As noted above, most of his service treatment records are no longer available for review. Included among the available service treatment records is a November 1946 service discharge examination report which notes normal ear, nose, and throat, and normal skin. A June 1952 service entrance examination report also notes normal nose, head, face, and skin. An April 1954 service discharge examination report indicates that the Veteran had a well-healed scar over the nose. Following separation from service, a VA examination report dated in October 1983 shows that the Veteran exhibited four scars of the face, including scars in the right eyebrow area, the right jaw, and the right and left side of the nose. A VA Report of Accidental Injury In Support of Claim For Compensation Or Pension completed by the Veteran in October 1983 shows that the reported that he had been in a car accident on his way back to camp after a weekend pass in 1952. He stated that he had multiple cuts and lacerations on his face and was treated at a hospital and released. VA hospital treatment records dated from July 2003 to October 2003 show that the Veteran underwent an excisional biopsy of a lesion on the nasal tip and left peri-oral area. The nasal tip lesion was said to have been present for 40 years or so and was unchanged. A lesion of the left peri-oral area had been present for three weeks and had increased in size dramatically. Microscopic examination revealed epidermoid inclusion cyst of the nasal tip, and keratoacanthoma of the left peri-oral. A lay statement from a fellow service-member of the Veteran dated in October 2005 shows that it was indicated that while service in the same unit in 1952, the Veteran had a traffic accident on his way to Losey Field, where he received severe trauma in his face. A VA examination report dated in September 2006 shows that the Veteran reported having status post reconstruction of the nose after an automobile accident in the Army, with residual scar and pain and disfigurement. The condition was said to have existed since 1953. The current symptoms were said to include stabbing headaches and numbness of the forehead, with associated dizziness, loss of balance, scar pain, headaches and numbness of the forehead. Following examination of the Veteran, the diagnosis was status reconstructive surgery of the nose with disfiguring scar with pain and numbness of the forehead. The subjective factors were scar pain and disfigurement, and the objective factors were disfiguring scar with tissue loss. A VA examination report dated in March 2012 shows that the Veteran reported that on his way back to camp in during service in 1953 he was in a motor vehicle accident without a seat belt and hit his head on the windshield, sustaining a nose fracture and multiple lacerations to the right eye brow, right cheek peri-oral region, and nose. He added that he had no additional treatment in service, and that approximately 10 years ago a VA plastic surgeon attempted to repair his scar from service. He noted that his nose looked a little better since the surgery, but that he had headaches. X-rays of the nasal and facial bones showed no acute fractures and were unremarkable. Following examination of the Veteran, the examiner concluded that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that review of the separation physical noted a well healed scar over the nose. The Veteran was diagnosed with rhinophyma which was a descriptive term for a large, bulbous, ruddy appearance of the nose in August 2003. He was referred to plastic surgery and underwent reconstructive nose surgery in October 2003. On October 3, 2003, it had been indicated that the Veteran was "here for excisional biopsy of lesion on nasal tip and left peri-oral area. Nasal tip lesion has been present for 40 years or so and is unchanged. Lesion in left peri-oral area has been present for 3 weeks and has increased in size dramatically." The surgical pathology of the left nasal bridge noted an epidermoid inclusion cyst. There was one centimeter scarring to the left side of his nose which was the same area of pathology excision biopsy. The examiner further explained that epidermoid cysts may become inflamed or secondarily infected, resulting in swelling and tenderness of which was Veteran's symptoms that led him to seek dermatological care in 2003. Usually, laceration scars fade away with time. The Veteran had reported three laceration locations to his nose, right eyebrow, and right cheek, however, all were non-visible except for the reconstructive surgical site. The examiner added that a nasal fracture could cause a deviated septum; however, he did not have it based on physical examination and radiological findings. The separation physical was negative for a neurological condition such as claimed by Veteran as headaches. The Veteran's claimed laceration was less likely the culprit for his headaches. His current nasal deformity was said to be related to post service rhinophyma and surgical reconstruction. Having carefully considered the claim in light of the record and the applicable law, the Board finds that the preponderance of the evidence is against an award of service connection for residuals of lacerations of the face. As noted above, the Veteran's service treatment records are not available for review, however, his April 1954 separation examination report does show a well healed scar over the nose. Following service, it is not until the October 1983 VA examination report that there is any indication that the Veteran exhibited four scars of the face. This is more than 29 years following separation from service. In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since service, can be considered as evidence against a claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board has considered the October 2003 excisions in the nasal tip and left peri-oral areas. However, the VA examiner in March 2012 concluded that the Veteran's reported three laceration locations to his nose, right eyebrow, and right cheek, were non-visible except for the reconstructive surgical sites. The VA examiner opined that the Veteran's claimed condition was less likely than not incurred in or caused by service and provided a thorough and detailed explanation for the conclusion. This opinion is considered probative as it was definitive, based upon a complete review of the Veteran's entire claims file, to include the lay statements of record, and supported by detailed rationale. Accordingly, the opinion is found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Veteran has not provided any competent medical evidence to rebut the opinion against the claim or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). The Board recognizes the Veteran's contentions that he has had continuous symptoms associated with the residuals of lacerations to his face since his period of active service. When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). To the extent that the Veteran is able to observe continuity of symptomatology, his opinion is outweighed by the competent medical evidence. The lack of documented treatment for approximately three decades following separation from service, in and of itself, cannot be a basis for dismissing lay evidence of continuous symptoms. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, in this case a VA examiner found it unlikely that the claimed condition was related to the lacerations sustained in service. While the Board does not dispute that the Veteran had a scar of the nose as noted at separation from service, there is no evidence that the Veteran has current residuals therefrom that are related to such scar. Moreover, while the statement of the Veteran's fellow service-member supports that he sustained facial lacerations in a motor vehicle accident in service, the statement does not serve to establish continuity of symptoms since then, or that the Veteran currently has a disability associated thereto. Thus, the Veteran's statements as to continuity of symptomatology cannot be deemed credible. It is not the lack of treatment, categorically, that compels a finding that there was no continuity of symptoms, but rather a medical professional's opinion that the lacerations had faded over time and that the current condition was unrelated to service. For the above reasons, the record fails to establish continuity of symptomatology, either by way of the clinical record or the Veteran's own statements. Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). While the Board is sympathetic to the Veteran's claim, and he is certainly competent to describe that which he experienced in service, any contentions by the Veteran that he has current residuals of in-service lacerations are not competent. There is no indication that he possesses the requisite medical knowledge or education to render a probative opinion involving medical diagnosis or medical causation. Given the medical evidence against the claim, for the Board to conclude that the Veteran has residuals of lacerations of the face as a result of service would involve speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102 (2012); Obert v. Brown, 5 Vet. App. 30, 33 (1993). For the reasons and bases provided above, the evidence in this case weighs against the claim of service connection for residuals of lacerations of the face. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations. See 38 U.S.C.A. §5107 (West 2002). ORDER Service connection for residuals of lacerations of the face is denied. ____________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs