Citation Nr: 1343320 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 08-06 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for left facial and neck scar residuals. 2. Entitlement to service connection for right and left arm scar residuals. REPRESENTATION Veteran represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran had active service from November 1981 to December 1982. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the San Juan, the Commonwealth of Puerto Rico, Regional Office (RO) which denied service connection for both left facial and neck scar residuals and right arm and left arm scar residuals. In November 2006, the RO determined that the Veteran's left facial and neck scar residuals and right arm and left arm scar residuals were the proximate result of his own willful misconduct. In May 2007, the RO determined that the July 2004 rating decision was clearly and unmistakably erroneous as it was issued prior to the issuance of an administrative decision as to the issue of willful misconduct. In June 2010 decision, the Board remanded the Veteran's appeal to the RO in order to schedule the Veteran for a hearing before a Department of Veterans Affairs (VA) Decision Review Officer (DRO). In August 2010, the Veteran withdrew his DRO hearing request. In March 2013, the Board remanded the Veteran's appeal to the RO for additional action. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of the case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran sustained left facial and neck lacerations during active service. 2. The Veteran sustained right arm and the left arm lacerations during active service. 3. The Veteran's lacerations were the proximate result of having been stabbed with a broken bottle by another soldier and not the result of his own willful misconduct. CONCLUSIONS OF LAW 1. Left facial and neck laceration scar residuals were incurred in active service. 38 U.S.C.A. §§ 105, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.1(n), 3.102, 3.159, 3.301, 3.303, 3.326(a) (2013). 2. Right arm and left arm laceration residuals were incurred in active service. 38 U.S.C.A. §§ 105, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.1(n), 3.102, 3.159, 3.301, 3.303, 3.326(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The United States Court of Appeals for Veterans Claims' (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473(2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this decision, the Board grants service connection for both left facial and neck laceration scar residuals and right arm and left arm laceration scar residuals. Therefore, no further discussion of VA's duties to notify and to assist is necessary. II. Service Connection The Veteran asserts that service connection for left facial and neck, right arm, and left arm laceration scar residuals is warranted as he was stabbed by another soldier outside of a discotheque during active service. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Direct service connection may be granted only when a disability was incurred or aggravated not as the result of a veteran's own willful misconduct or his abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). Willful misconduct means an act involving conscious wrongdoing or known prohibited action. Willful misconduct will not be determinative unless it is the proximate cause of the injury or disease. 38 C.F.R. § 3.1(n). Service treatment records and associated German hospital records dated in August 1982 reflect that the Veteran was treated for multiple lacerations of the forehead, the left cheek, the left side of the neck, the right lower arm, and the left elbow. His lacerations were cleaned and sutured. An April 1983 Military Police Report (DA Form 3975) states that the Veteran had been in a fistfight with another soldier. The other soldier subsequently stabbed the Veteran in the head, the face, the neck and the right arm with a broken beer bottle. At a March 1983 VA examination, the Vetera was diagnosed with laceration scar residuals of the face, the neck, the right arm, and the left arm. The Veteran was stabbed by another soldier in the face, the neck, the right arm, and the left arm during active service. A post-service VA examination revealed facial, neck, right arm, and left arm laceration scar residuals. The proximate cause of the Veteran's laceration scar residuals was the Veteran being stabbed by another individual rather than his own action. For these reasons and upon resolving all reasonable doubt in the Veteran's favor, the Board concludes that service connection for both left facial and neck laceration scar residuals and right arm and left arm laceration scar residuals is now warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102. ORDER Service connection for left facial and neck laceration scar residuals is granted. Service connection for right arm and left arm laceration scar residuals is granted. ____________________________________________ J. T. HUTCHESON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs