Citation Nr: 1330912 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 11-08 001 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for scar, lip and eyebrow; and if so, whether service connection is warranted. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran had active military service from December 1952 to December 1956. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In April 2013, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in Providence. In June 2013, the Board remanded the issue of new and material evidence for service connection for lip and eyebrow scars for further development. No further action to ensure compliance with the Board's remand directives is required. Stegall v. West, 11 Vet. App. 268 (1998). 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). The issue of service connection for lip and eyebrow scars is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. In a rating decision dated in January 2008 the RO denied service connection for lip and eyebrow scars; after the Veteran was notified of the adverse decision and of his right to appeal, he did not appeal, and no new evidence pertinent to the basis of the denial of that claim was received by VA within one year from the date that the RO mailed notice of the determination to the Veteran. 2. Evidence that is not cumulative or redundant of that in the record in January 2008, and that relates to an unestablished fact necessary to substantiate the claim for service connection for lip and eyebrow scars, has been received. CONCLUSIONS OF LAW 1. The January 2008 rating decision denying service connection for lip and eyebrow scars disease is final. 38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. § 3.104 (2012). 2. Evidence added to the record since the January 2008 rating decision denying service connection for lip and eyebrow scars is new and material. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board reopens the Veteran's claim for service connection for January 2008 and remands it for further development. As such, no discussion of VA's duty to notify and assist is necessary. In a rating decision in January 2008 the RO denied the issue of service connection for lip and eye brow scars on the grounds that there was no record of the Veteran's reported in-service injury. After appropriate notice of this decision and of his appeal rights, the Veteran did not appeal, and no evidence pertaining to the issue was either physically or constructively received by VA within one year of the January 2008 rating decision. The January 2008 decision is therefore final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.156(b), 3.160(d), 20.302; see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). In May 2010 the Veteran filed a claim to reopen, which was denied by the RO in a September 2010 rating decision on the grounds of no new and material evidence. The January 2008 rating decision is the last final decision on the merits. The claim decided therein is not subject to revision on the same factual basis. 38 U.S.C.A. § 7104. In order to reopen the claim, new and material evidence is needed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). At the time of the January 2008 rating decision the evidence consisted of the Veteran's report that a battery had exploded in his face during service and his DD Form 214, which shows that the Veteran served during the Korean War that his military occupational specialty was Aircraft Mechanic. The evidence also included VA treatment records dating in 2006 and 2007 (which contain no mention of any scars); and a negative response from the service department regarding its search of morning reports. Evidence added to the record since the January 2008 rating decision includes notice from the National Personnel Records Center that the Veteran's service personnel records and service treatment records are fire related; his April 2013 testimony before the undersigned VLJ that he and three other servicemen were injured during service when a boat engine's battery blew up in his face while he was trying to fix the vehicle; and the Veteran's testimony that he was treated at the infirmary where he was stationed. In accordance with Justus, the Board must assume the credibility of this evidence; particular as military records are unavailable. Justus, 3 Vet. App. 510, 512-513. See also Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), aff'd 455 F.3d 1346 (Fed. Cir. 2006); cert. denied 127 S. Ct. 2265, 167 L. Ed. 2d 1093 (2007) (regarding VA's heightened duty to assist where service treatment records are missing). This evidence is new since it was not of record in January 2008, and material as it relates to an unestablished fact necessary to substantiate the claim for service connection for lip and eyebrow scars. New and material evidence having been presented, the claim is reopened. 38 C.F.R. § 3.156(a). ORDER New and material evidence having been submitted, the Veteran's claim for service connection for lip and eyebrow scars disease is reopened and, to that extent only, the appeal is granted. REMAND Having reopened the claim for service connection for lip and eyebrow scars based on new and material evidence, the Board has jurisdiction to review the underlying service connection claim, de novo, based on the whole record. For the reasons that follow the Board finds that additional development is warranted. At his 2013 Board hearing the Veteran testified that a battery blew up in his face while he was fixing a boat engine during service, and that he received immediate treatment for wounds about the face. He indicated that the wounds were caused by spewing battery acid, and seeks service connection for residual scarring. Although service treatment and personnel records are unavailable, his DD Form 214 confirms that the Veteran received extensive Aircraft and Engine Mechanic training during service, and that his military occupational specialty was Aircraft Mechanic, the Board finds his account of an incident related to his repair of a boat engine to be credible, that is, consistent with the circumstances of his service. The Veteran should therefore be accorded a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). On remand any extant VA treatment records should be associated with the claims file. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Associate with the claims file, either physically or electronically, all of the Veteran's VA medical records dating from April 2010. Any other pertinent records identified by the Veteran during the course of the remand should also be obtained and associated with the claims file, following the receipt of any necessary authorizations from the Veteran. If no records are found and it is determined that further attempts to obtain the records would be futile, notify the Veteran and his representative of the negative results in accordance with 38 C.F.R. § 3.159(e), and allow the Veteran an opportunity to submit the sought-after records. 2. Schedule the Veteran for an appropriate VA examination regarding his claim of service connection for facial scars. The claims file should be made available to, and reviewed by, the examiner. All indicated tests should be done, and all findings must be reported in detail. For purposes of this examination, the examiner must accept, as fact, the Veteran's claim that a motor vehicle battery blew up in his face 60 years ago during service, as such an event would not be inconsistent with the circumstances of his military occupational specialty. If any scarring about the lip(s) and eyebrow(s) is detected, the examiner is requested to opine as to the etiology of said scars; namely, whether it is at least as likely as not that these are old scars, and whether it is at least as likely as not that they are burn scars or were caused by high velocity projectiles . If the VA examiner determines that he/she is unable to provide the requested medical opinion(s) without resorting to speculation, this should be indicated in the report, along with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. A complete rationale for all opinions must be set forth in the examination report. 4. Then, readjudicate the appeal. If the benefit sought remains denied, issue a Supplemental Statement of the Case to the Veteran and his representative, and then return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs