Citation Nr: 1331476 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 09-50 793 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for residuals of a neck injury. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. This claim has been remanded by the Board twice, once in September 2010 and again in March 2011. The matter was remanded in September 2010 to afford the Veteran a video hearing before a member of the Board, based on a May 2010 request by the Veteran. However, in a subsequent September 2010 statement, the Veteran withdrew his request for a hearing before the Board and asked for a decision based on the evidence of record. The claim was again remanded in March 2011 to afford the Veteran a VA examination for his neck. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure review of the totality of the evidence. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, the scar on his neck is a result of in-service combat. 2. The competent and probative evidence of record associates the Veteran's current diagnosis of a scar to his military service. CONCLUSION OF LAW The Veteran's current scar was incurred during his military service. 38 U.S.C.A. §§ 1110, 1154(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304(d) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Board is granting in full the benefit sought on appeal. As a result, any error committed with respect to either the duty to notify or the duty to assist was harmless. II. Service Connection for Residuals of a Neck Injury Generally, service connection may be granted for a disability or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease of injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called 'nexus' requirement." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2013). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). With respect to combat veterans, 38 U.S.C.A. § 1154(b) provides that for any veteran engaged in "combat" with the enemy, VA shall accept lay or other evidence as proof of a disease or injury being incurred in or aggravated by such service even if there is not official record of such incurrence, so long as the evidence is consistent with the circumstances of such service. See Collette v. Brown, 82 F.3d 389 (Fred. Cir. 1996). This so-called "combat presumption" is rebuttable by clear and convincing evidence to the contrary. Regarding requirement (1), the Veteran has a current diagnosis of a scar, described in the April 2011 VA examination as: "3 cm x 2mm slightly hyperpigmented scar across anterior neck, the scar is otherwise normal, with no pain, no adherence to the underlying tissues, no ulcerations and breakdowns, no depression or elevation, and no limitation of function by the scar." As a result, requirement (1) for service connection is satisfied. With respect to requirement (2), the Veteran's in-service MOS was as an Armed Amphibian Crewman with the 1st Armored Amphibian Company of the 1st Marine Division. In its March 2011 remand the Board noted that while the Veteran's DD 214 does not include citations or awards indicative of combat operations, the nature of the Veteran's MOS and duty assignment is indicative of combat service. As a result, the Veteran's assertions of an event during combat are to be presumed, if consistent with the time, place, and circumstances of such service. See 38 U.S.C.A. § 1154(b). The Board finds that the Veteran's report of enemy fire and his shrapnel injury in May 1968 are consistent with his MOS and unit of assignment. While there is no record of this injury in Service Treatment Records and no indication of a scar at his October 1968 separation exam, the Board does not find this to be clear and convincing evidence to the contrary. Similarly, the Board does not find the opinion in the April 2011 VA examination to be contradictory to the Veteran's statements. The examiner's opinion did not refute the Veteran's allegations, it simply stated that the examiner was "unable to determine [the] cause of the [the] veteran's anterior neck scar. Lacking documentation, no one would be able to determine [the] cause of veteran's anterior neck scar." Because the Veteran's allegations regarding his sustained combat injury are presumed credible, and there is no contradictory evidence of record, the Board finds that there is at least a proximate balance of the evidence in favor of the Veteran's scar resulting from an in-service injury. Thus, requirement (2) is satisfied. Turning to requirement (3), because the Board has accepted the Veteran's allegations that his current scar was incurred during combat and the result of a shrapnel wound, there is a clear 'nexus' between the Veteran's current disability and an in-service injury. Again, the Board has considered the examiner's statement in the April 2011 VA examination that the Veteran's neck scar is less likely that not caused by or the result of his military service. However, this conclusion appears to have been based exclusively on the lack of documentation in service. The examiner essentially stated that without prior documentation regarding the injury, it was impossible to determine the origin of the scar. Significantly, however, the examiner did not suggest that there was anything about the nature of the scar that would be inconsistent with the injury described by the Veteran, and, in fact, the examiner appears to have implicitly found such a connection plausible. For these reasons, and because the Board has accepted as credible the Veteran's allegations regarding the nature of his in-service injury, the Board concludes that there is at least an approximate balance of positive and negative evidence as to whether requirement (3) is satisfied. In summary, as all three service connection requirements are satisfied, service connection for the Veteran's scar is warranted. ORDER Service connection for residuals of a neck injury is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs