Citation Nr: 1335372 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-18 948A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for residuals of a left back side stab wound. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran had active duty service from January 1953 to January 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied entitlement to service connection for residuals of a stab wound. The Veteran requested a Board hearing at the time of his May 2010 substantive appeal. However, in correspondence dated in August 2013, the Veteran indicated that he was unable to attend his scheduled Travel Board hearing and expressed his desire for the Board to proceed with adjudication of his claim. As such, the Board deems the Veteran's request for a hearing withdrawn. See 38 C.F.R. § 20.704 (2012). The Board also notes that the Veteran's May 2010 substantive appeal included a claim for entitlement to service connection for hearing loss. However, a subsequent November 2012 rating decision granted entitlement to service connection for bilateral hearing loss. As this is a full grant of the benefit sought, it is not before the Board. 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 appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND VA has statutory and regulatory duties to notify and to assist the Veteran. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326. After a thorough review of the Veteran's claims file, the Board finds that remand is required because VA has not yet met its duties with regard to the Veteran's claim for entitlement to service connection for residuals of a left back side stab wound. The Veteran filed his current claim for entitlement to service connection for residuals of a left back side stab wound in October 2008. Specifically, he indicated that he had been stabbed during a mugging while stationed with the 505th AAA Gun Battalion, Battery D, at Fort Tilden, New York, at some time during late 1953 or early 1954, and that he now suffers from painful residual scars of his left back side. He additionally indicated that he was treated for the stab wound at Governors Island Hospital, New York, for approximately four weeks following the incident. The Veteran's current VA treatment records confirm the presence of a "mid line scar." However, several attempts to obtain the Veteran's service treatment records, to include treatment records from Governors Island Hospital, from the National Personnel Records Center (NPRC) revealed that they were most likely destroyed in the July 12, 1973 fire at the National Archives and Records Administration in St. Louis, Missouri. The use of alternate requesting codes to locate these records and submission of a completed NA Form 13055 (Request for Information Needed to Reconstruct Medical Data) met with no success, and the RO was informed that morning sick reports which could have revealed evidence of in-service hospitalization were discontinued in early 1953 and thus unavailable in this case. The RO issued a Formal Finding on the Unavailability of Service Treatment Records in November 2009. Correspondence sent to the Veteran in November 2008 asked him to submit additional evidence in support of his claim, to include statements from persons who knew him when he was in service and knew of any disability he had while on active duty. In response, the Veteran submitted a March 2011 affidavit from a friend who had first met him in 1954 while stationed at Fort Tilden, New York. The affidavit indicated that the Veteran was stabbed and mugged in Rockaway, New York, sometime between October 1954 and May 1955, and that he spent approximately three weeks in the hospital before returning to active duty. In addition, the Veteran submitted a December 2008 lay statement from his spouse which indicated that the Veteran's stab wound residuals caused stinging and burning sensations. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). 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). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) VA's duty to assist may include providing a medical examination. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. In this case, the RO did not provide the Veteran with a VA examination and nexus opinion regarding his claim for entitlement to service connection for residuals of a left back side stab wound. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: (1) competent evidence of diagnosed disability or symptoms of a disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Veteran has submitted VA treatment records showing that he has a "mid line scar." Additionally, although the Veteran's service treatment records are unavailable, the Veteran has provided statements that his scar is the result of a stab wound incurred during his period of active duty. These statements have been corroborated in an affidavit given by an acquaintance who knew him at the time of the stabbing incident. The Board finds that scars are medical conditions which a layperson is competent to identify, and that these lay statements satisfy the "low" threshold, set forth in McLendon. Accordingly, remand for a VA examination addressing the probable etiology of the Veteran's stab wound residuals is warranted. Id. Accordingly, the case is REMANDED for the following action: (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. The Veteran should be provided with a VA examination to determine the likelihood that his current mid line scar is related to his military service, to specifically include his claimed in-service stab wound. The Veteran's claims file must be made available to the examiner, and the examiner must specify in the report that the claims file has been reviewed. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon the evidence of record, to include the Veteran's statements and other lay statements of record which are competent evidence of in-service and post-service symptomatology, the VA examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current mid line scar and/or any other related symptomatology found upon examination were incurred in or otherwise related to his active duty service. A complete rationale for all opinions must be provided. When providing the opinion, the examiner should consider the Veteran competent to report the injury that occurred in service. 2. After completion of the above, the RO should review the expanded record and determine if service connection is warranted for the claimed disability. If the claim remains denied, then the Veteran and his representative should be furnished a supplemental statement of the case. After they are afforded an opportunity to respond, the claims should be returned to the Board for appellate review. The appellant 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). 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). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).