Citation Nr: 1330834 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 10-08 960 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for residual scarring as a result of burns to the left hand. ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran served on active duty from September 1986 to October 2007. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In August 2011, the Board remanded this matter for additional development. In addition, the Board remanded a claim for service connection for urinary urgency, claimed as bladder problems. An August 2012 rating decision granted service connection for chronic prostatitis, urinary urgency (claimed as bladder problems) and for burn scars of right dorsal hand and medial wrist. As that was a full grant of the benefit sought as to those issues, they are no longer on appeal before the Board. A June 2012 supplemental statement of the case continued the denial of service connection for residuals of burns to the left hand. That issue has been properly returned to the Board for further appellate consideration. The issue of entitlement to increased ratings for service-connected bilateral thumb disabilities has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over that issue and it is referred to the AOJ for appropriate action. FINDINGS OF FACT The Veteran does not have residual scarring as a result of burns to the left hand. CONCLUSION OF LAW The criteria for service connection for residual scarring as a result of burns to the left hand have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated in January 2008. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or claimant's representative that demonstrate an awareness of what is necessary to substantiate claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent June 2012 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claim remaining on appeal. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). The first requirement for any service connection claim is evidence of a current disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Veteran asserts that as a result of the burns to his hands in service, he suffers from residual scarring, pain in his hands and fingers, and residual arthritis, described as popping, in his thumbs. A July 2008 rating decision granted service connection for degenerative joint disease of the thumbs, also claimed as pain and popping in the hands bilaterally. Therefore, the Board will proceed with the Veteran's claim as one for residual scarring as a result of his burns sustained to his hands in service. Moreover, as the Veteran was granted service connection for residual scarring to the right hand and wrist in an August 2012 rating decision, the only matter remaining on appeal is that of service connection for residual scarring as a result of burns to the left hand. The Veteran's service medical records show extensive treatment for first and second degree burns to the hands and face following a fuel explosion in September 1992. The Veteran was treated with Silvadene and physical therapy. A September 1994 periodic service examination report shows a finding of a scar on the Veteran's back but does not indicate the presence of any scarring on the hands. On a June 2007 report of medical assessment, the Veteran reported hand problems associated with the explosion in service. The Veteran attended a VA general medical examination in November 2007. The examiner noted a history of burns to both hands following an explosion in service. It was noted that the Veteran received second degree burns to his hands and his right upper arm and a third degree burn over the dorsal aspect of his left hand. No skin grafting was required. The examiner noted that the areas had resolved and there had been no treatment over the past several years. On physical examination of the skin, the examiner did not note the presence or absence of any scarring on the hands. The examiner diagnosed post second degree burns of the hands, resolved. In October 2011, the Veteran underwent a VA scars examination. The VA examiner diagnosed the Veteran with a burn scar of the right dorsal hand and medial wrist only. Under the medical history, it was noted that the Veteran suffered burn injury to his hands as a result of a September 1992 fuel explosion in-service. It was noted that he reported complete healing and resolution of burn scars to both hands with one residual asymptomatic scar located along the dorsum of the right hand and medial wrist area. The examiner specifically found that the left upper extremity was not affected. The Board notes that VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171(1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). In this case, the Veteran has not presented, identified, or alluded to the existence of any post-service medical evidence of a diagnosis of or treatment for residual scarring of the left hand. The most persuasive evidence of record, that of the two examinations, shows that the burns of the left hand had resolved, and that the left upper extremity was not affected by burn scarring. While the evidence shows that the Veteran sustained a burn injury in service, the evidence must show a present disability as a result of the inservice incident in order for service connection to be granted. The Board finds that the preponderance of the evidence is against a finding that there are any current residuals or scarring due to the inservice burn injury. Absent evidence of a current disability, service connection for residual scarring as a result of burns to the left hand must be denied. Without competent medical evidence of record that demonstrates the presence of residual scarring to the left hand, the Board finds that service connection for residual scarring as a result of burns to the left hand is not warranted. As the preponderance of the evidence is against the claim for service connection for residual scarring as a result of burns to the left hand, the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for residual scarring as a result of burns to the left hand is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs