Citation Nr: 1343101 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 09-01 890 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a burn scar on the back. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant (the Veteran) and his friend ATTORNEY FOR THE BOARD R. Sauter, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from March 1965 to March 1968. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied service connection for a burn scar of the back. In April 2011, the Veteran testified at a hearing before the Board. A copy of the hearing transcript has been associated with the claims file. In October 2011, the Board remanded this matter for additional development. The Board is satisfied that there was substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran sustained a burn to his left back during service. 2. The Veteran has a current burn scar on the left back that is manifested by pain and itching. 3. The Veteran's current burn scar is related to his in-service burn. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a burn scar have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.326(a) (2013). In the present case, the Board is granting the claim for service connection for a burn scar. This decision constitutes a full grant of the benefits sought on appeal; therefore, no further discussion regarding VCAA notice or assistance duties is required. Service Connection Legal Authority Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) (2013). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The Veteran does not have a chronic disease listed under 38 C.F.R. § 3.309(a); thus, the presumptive service connection provisions at 38 C.F.R. § 3.303(b) based on "chronic" symptoms in service and "continuous" symptoms since service do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Analysis of Service Connection for a Burn Scar The Veteran contends that he has a painful burn scar on his left back as a result of an injury in service. At the April 2011 Board hearing, he testified that, during active duty, he stood too close to a generator, which caused his uniform to catch fire. He explained that he ran outside into the snow to put out the fire, and that this caused pieces of his uniform to adhere to his burned skin. He further asserts that he has continued to experience occasional pain and itching on his lower back and buttocks at the burn site since separation from service. The Board finds that the evidence shows that the Veteran sustained a burn on his left back while serving on active duty. Service treatment records do not contain an incident report or treatment records at the time of the injury; however, the January 1968 report of medical examination notes "healing burn left back." Additionally, the November 2011 VA examination report, discussed below, assessed that the Veteran sustained a burn to his left back in service. Such recent opinion is medical evidence that the current disorder is consistent with a burn scar in service. The Board finds that the evidence is in relative equipoise on the question of whether the Veteran has a current disability of burn scar on the left back that is manifested by pain and itching. In support of his claim, the Veteran submitted private treatment records from his primary care physician. Records dated June through November 2009 show that the Veteran was treated on several occasions for boils with yellow drainage on his buttocks. A July 2009 treatment record shows an assessment of "prob[ably] MRSA," while the assessment at an August 2009 visit was "rule out fistula." The 2009 treatment records did not contain a diagnosis of the skin disorder, or an opinion on etiology. At the April 2011 Board hearing, the Veteran and his friend asserted that the skin disorder documented in the 2009 private treatment records has been present since service separation, is a residual of the in-service burn, and has been present since then. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran has a current burn scar on the left back. The Board finds that the evidence is in relative equipoise on the question of whether the Veteran's current burn scar is related to his in-service burn rather than to the non-service-related, post-service MRSA. Pursuant to the October 2011 remand instructions, the Veteran was afforded a November 2011 VA medical examination. After reviewing the claims file and conducting a thorough examination of the Veteran, the VA examiner determined that the Veteran does not have any visible scars from his in-service burn injury, but that he does experience pain at the site of the in-service burn. The VA examiner opined that it is at least as likely as not that the Veteran has residual pain from an in-service burn to the left posterior back, despite the fact that there is no physical scar. The November 2011 VA examination is highly probative evidence, as it relies on sufficient facts and data, provides a rationale for the opinion, and contains sound reasoning. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For these reasons, the Board finds that the Veteran's current burn scar, which is manifested by pain and itching because such symptoms have not been differentiated from the MRSA, is related to his in-service burn. See Mittleider v. West, 11 Vet. App.181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (stating that the Board is precluded from differentiating between the symptomatology attributable to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so). Resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran has a current burn scar as a result of the in-service burn injury to the back that is manifested by pain and itching. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a burn scar on the back with residual pain and itching is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs