Citation Nr: 1601316	
Decision Date: 01/13/16    Archive Date: 01/21/16

DOCKET NO.  10-47 341	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to service connection for a back disorder.

3.  Entitlement to service connection for scars of the face (forehead by eye).


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

James R. Springer, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1973 to April 1973, March 1991 to July 1991, and from September 1994 to March 1995.  The Veteran also served in the Army Reserves.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, which, in pertinent part, denied service connection for tinnitus, a back condition, and scars of the face (forehead by eye).

In September 2015 the Veteran testified before the undersigned Veterans Law Judge at a Central Office hearing in Washington, D.C.; a transcript of that hearing is of record.  During the hearing, the undersigned granted the Veteran's request to hold the record open for 90 days; in December 2015 the Veteran submitted additional evidence, including a private treatment record and an internet article, along with a waiver of initial consideration of the Agency of Original Jurisdiction (AOJ) of such newly submitted evidence.  38 C.F.R. § 20.1304(c)(2015).  Therefore, the Board may properly consider such newly received evidence.

The Board notes that, in addition to the paper claims file, there are paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA files associated with the Veteran.  A review of the documents in those file reveals that certain documents, including the September 2015 Central Office hearing transcript, the May 2015 appellate brief, and evidence submitted in December 2015, including an internet article, are potentially relevant to the issues on appeal.  Thus, the Board has considered these electronic records in its adjudication of the Veteran's case.  Any future consideration of the Veteran's claims should also take into consideration the existence of this electronic record.

The issue of entitlement to service connection for scars of the face (forehead by eye) is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran's assertions of in-service noise exposure, including weapons fire and exposure to the sounds of engines and machines, are credible and are consistent with the circumstances of his service.

2.  The competent and credible lay and medical evidence of record is at least in relative equipoise as to whether the Veteran's tinnitus is as a result of his in-service noise exposure.

3.  At no time during, or prior to, the pendency of the claim does the evidence of record show that the Veteran has a current diagnosis related to a back disorder, or persistent or recurrent symptoms of such.


CONCLUSIONS OF LAW

1.  Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus are met.  38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. § 3.102, 3.303 (2015).

2.  A back disorder was not incurred in or aggravated by active military service.  38 U.S.C.A. § 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.102, 3.303 (2015).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

As the Board's decision with regard to the Veteran's claim for service connection for tinnitus is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations with regard to that claim.

With regard to the claim for service connection for a back disorder, the Board finds that VA has satisfied its duty to notify under the VCAA.  Specifically, a February 2007 letter, sent prior to initial unfavorable decision issued in September 2007, advised the Veteran of the evidence and information necessary to substantiate his service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information.  Additionally, such letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra.

Relevant to the duty to assist, the Veteran's service treatment records have been obtained and considered.  The Veteran has not identified any additional, outstanding records that have not been requested or obtained.

In addition, the Veteran was afforded a VA examination addressing the nature and etiology of a back disorder in April 2010.  The examiner's opinion provides a clear conclusion with supporting data as well as a reasoned medical explanation connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  Moreover, neither the Veteran nor his representative have maintained that the VA examination was inadequate.  See Sickles v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (in the absence of a challenge to the adequacy of the examination, the Board is not required to explicitly explain why each medical opinion is adequate).

In Bryant v. Shinseki, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010).

Here, during the September 2015 hearing, the undersigned Veterans Law Judge enumerated the issues on appeal.  Information was solicited regarding the current nature and etiology of the Veteran's claimed back disorder, including lay statements concerning any in-service injury, and the onset and continuity of symptoms. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. Id. at 497. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that the Board hearing was legally sufficient.

Thus, with regard to the Veteran's claim for service connection for a back disorder, the Board finds that VA has fully satisfied the duty to assist.  In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims.

II.  Analysis

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015).  Service connection may also be granted for any disease diagnosed after discharges, when all of the evidence, including that pertinent to service, establishes that the disease was incurrent in service.  38 C.F.R. § 3.303(d).

"To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability, (2) in-service incurrence or aggravation of a disease or injury; (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Depending on the evidence and the contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

In addition to the requirements for service connection noted above, where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309 (2015).  

In some cases, service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology.  However, the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Tinnitus

The Veteran claims that he suffers from tinnitus as a result of noise exposure during service.  The Veteran's military occupational specialty was as an infantry officer and a quartermaster.  During his September 2015 hearing before the undersigned, the Veteran stated that his in-service noise exposure included firing ranges, artillery fire from Howitzers, noise from generators, and noise from motor vehicles and helicopters.  September 2015 Hearing Transcript, p. 9-10.  He said that he began to experience a ringing in his ears after a period of active duty service.

The Veteran's service treatment records associated with the claims file do not reflect any complaints of or treatment for tinnitus during service.

Nevertheless, the Veteran is competent to report the event that occurred during service.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Furthermore, the Veteran has consistently asserted that his tinnitus onset in service, and that it has continued since.  The Board finds that the description of his in-service noise exposure is consistent with the types and circumstances of the Veteran's military service.  38 U.S.C.A. § 1154(a) (West 2014) (due consideration must be given to the places, types, and circumstances of a veteran's service).  

As such, the Board finds that the Veteran's assertions regarding his in-service noise exposure and the onset, nature, and progression of his tinnitus are considered competent and credible lay evidence of such.

In Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the Court specifically held that tinnitus is a condition which is capable of lay observation.  See also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The Veteran has consistently reported having bilateral tinnitus throughout the appeal period, including his testimony before the undersigned during the September 2015 Board hearing.  Thus, the evidence sufficiently establishes the presence of the claimed disability, tinnitus.  Accordingly, the first element of service connection is established.

With respect to in-service incurrence, the Veteran has provided competent and credible lay evidence of in-service noise exposure.  As noted above, the Veteran has consistently reported that his tinnitus began during service and has been constant ever since that time.  Therefore, the second element of service connection has been established.

Turning the question of whether there is nexus, or link, between the current disability and the Veteran's military service, the Board finds that the competent and credible lay and medical evidence of record is, at least, in relative equipoise as to whether there is a relationship between the Veteran's tinnitus and his military service.

In connection with his claim for service connection, the Veteran submitted a September 2005 private opinion from Dr. R.M.  In the opinion, the physician noted the Veteran's history of noise exposure during service, including exposure to weapons fire, as well as the noise of engines and helicopters.  The opinion also noted that the Veteran began to experience a ringing in his ears while on active duty, and that his symptoms gradually worsened over time.  The physician ultimately opined that the Veteran's tinnitus was the result of noise exposure while he was in the military.

The Veteran underwent a VA audiology examination in April 2010 to evaluate the nature and etiology of his tinnitus, as well as his claimed disability of hearing loss.  During the examination, the examiner noted that the Veteran's puretone thresholds in either ear did not meet VA's definition of hearing loss under 38 C.F.R. § 3.385 (2015).  The examiner also diagnosed the Veteran with subjective tinnitus which was as least as likely as not related to his bilateral hearing loss.

In a July 2010 VA opinion, after reviewing the Veteran's claims file, the examiner opined that the issue of the etiology of the Veteran's tinnitus could not be resolved without addressing the etiology of the Veteran's hearing loss.  In essence, the examiner opined that since the Veteran's available service treatment records did not show hearing loss during his active military service or any complaints of tinnitus during active service, it was less likely as not that the Veteran's tinnitus was related to his military service. 

Regarding the Veteran's assertions of continuous symptoms of tinnitus since service, the Board notes again that the Veteran, as a lay person, is competent to report on matters observed or within his personal knowledge.  See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 vet. App. 303 (2007).  See also Layno, supra; Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  The Veteran is also competent to testify as to observable symptoms or injury residuals.  Moreover, tinnitus is a rare type of disability that may be established on the basis of lay evidence.  Charles, supra.  Thus, the Veteran is competent to state that his tinnitus began in service, and that he has continued to experience tinnitus since service to the present.

However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determined whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).

Here, the Board finds the Veteran's assertions regarding the onset of his tinnitus and a continuity of symptoms since service are credible.  As noted above, the Veteran has confirmed his in-service noise exposure, and his descriptions of in-service noise exposure are consistent with the circumstances of his service.  He has also consistently asserted that he experienced tinnitus in-service and that it continues to this very day, and there is no evidence in the record indicating that the Veteran's statements are not credible.

In sum, the Veteran has consistently provided competent and credible evidence that he has had continuous symptoms of tinnitus since his military service, and the Board finds no reason to question the veracity of such statements.  See Charles, supra; Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993).  Additionally, the record contains competent and credible medical evidence that both supports and dismisses a relationship between the Veteran's tinnitus and his active duty military service.  As the lay and medical evidence of record on the question of whether the Veteran's tinnitus is related to his in-service noise exposure is, essentially, in relative equipoise, the Board finds that such evidence, collectively, indicates that it is at least as likely as not that the Veteran's current tinnitus is the result of his in-service noise exposure.

Thus, resolving any reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for tinnitus are met.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 53-56.

Back Disorder

Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service.  Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992).  In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim.  However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. 

Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions.  38 C.F.R. § 4.1.  See also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995).  The Board notes that a symptom, such as pain, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted.  See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), vacated in part and remanded on other grounds sub. nom. Sanchez-Benitez v. Principi, 239 F. 3d 1356 (Fed. Cir. 2001).  

The Veteran claims entitlement to service connection for a back disorder as a result of his military service.  Specifically, the Veteran claims that, while in service, he twisted his ankle and his back while wearing a pack during basic training.  See September 2015 Hearing Transcript, Pg. 23-25.  He stated that he after he wrenched his ankle and back, he fell into a tree.  Id. at 25.  He stated that, although he sought treatment, a medic told him to take over-the-counter pain reliever and rest.  Id.

During his September 2015 hearing, the Veteran indicated that he did not have a current diagnosis associated with a back disorder.  Id. at 26.  Furthermore, when asked whether he had received post-service treatment for any back disorder, the Veteran stated that he had not.  The Veteran merely reported experiencing aches and spasms occasionally.  Id.

In connection with his claim for service connection, the Veteran underwent a VA general medical examination in April 2010.  Upon examination, the Veteran's posture, head position, and gait were normal.  There were no abnormal spinal curvatures, and there were no objective muscle abnormalities of the cervical or thoracic spine, including spasm, atrophy, guarding, pain with motion, or tenderness.  The detailed motor examination, the detailed sensory examination, and the detailed reflex examination were all normal.  The Veteran had full range of motion in his thoracolumbar spine without any objective evidence of pain.  The examiner concluded that the Veteran had a normal spine examination and no currently-diagnosed disability was provided.
 
In the instant case, the probative evidence of record fails to demonstrate a current diagnosis related to a back disorder.  While the Board has also considered the Court's holding in Romanowsky, supra, there is also no probative evidence of a recent diagnosis of disability prior to when the Veteran filed his claim.

In this regard, the Board notes that the Veteran is competent to report his own symptoms or matters within his personal knowledge.  See Jandreau v. Nicholson, supra; Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  In addition, laypersons may, in some circumstances, opine on questions of diagnosis and etiology.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau).

However, the matter of a medical diagnosis for a disability not capable of lay observation, such as that of issue here, is a matter within the province of trained medical professionals.   See Jones v. Brown, supra.   Specifically, the diagnosis of a disability associated with the back or spine involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship, and requires the administration and interpretation of specialized testing, to include imaging tests.  In the instant case, there is no suggestion that the Veteran has had any medical training.  Therefore, as the Veteran does not have the appropriate medical training and expertise to competently self-diagnose a disability associated with his back or spine, any lay assertions in this regard have no probative value.  Jandreau, supra, at 1377 n.4 ("[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). 

In December 2015, the Veteran submitted an article discussing the long-term consequences of an ankle sprain.  A medical article or treatise can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least a plausible causality based upon subjective facts rather than unsubstantiated lay opinion.  Mattern v. West, 12 Vet. App. 222, 228 (1999).  However, treatise evidence alone is usually "too general and inconclusive" to establish a medical nexus.  Sacks v. West, 11 Vet. App. 314, 317 (1998).  In this case, the treatise evidence submitted by the Veteran is not accompanied by any competent medical opinion showing that the general statements made in the article are specifically applicable to the Veteran's situation.  More importantly, as noted above, the current evidence of record does not demonstrate that the Veteran suffered from a disability associated with his back at any point pertinent to this appeal.  Therefore, the article is not considered to be evidence sufficient to support the grant of service connection.

The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability.  See 38 U.S.C.A. §§ 1110, 1131.  Thus, where, as here, the probative evidence indicates that the Veteran does not have a current diagnosis of a back disorder for the entire appeal period, there can be no valid claim for service connection.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, supra. 

In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a back disorder.  As such, that doctrine is not applicable, and his claim must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra.


ORDER

Entitlement to service connection for tinnitus is granted.

Entitlement to service connection for a back disorder is denied.


REMAND

Although the Board regrets the additional delay, a remand is necessary in order to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claim, so that he is afforded every possible consideration.  38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015).

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may also 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 service.  38 C.F.R. § 3.303(d).  Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty.  38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a).  Active military, naval, or air service also includes any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty.  Id.   
 
The Veteran contends that he currently has scars on his forehead and face as a result of cuts due to brass with blow back while he was performing field demonstrations with a special operations command unit.  During his September 2015 hearing, he stated that he was given medical attention to stop the bleeding and to remove any foreign material.  He contends that, after the wounds healed, he developed scars on his face.  He also testified that, following service, he sought corrective surgery from Dr. C., a private physician, to disguise any residual scarring.

Initially, the Board notes that, in addition to his periods of active duty, the Veteran also served in the Army Reserves.  While some of the Veteran's service treatment records from his active duty service and his service in the Reserves are associated with the record, it is not clear whether his complete service treatment records from his active duty service and his service in the Army Reserves service have been associated with the record.  On remand, the AOJ should attempt to verify all periods of ACDUTRA and INACDUTRA and to obtain his complete service treatment records from his active duty service and his Army Reserves service.  If the Veteran's periods of ACDUTRA and INACDUTRA are unverifiable, or his service treatment records are unavailable, such a fact should be documented, in writing, in the record.

In addition, the record reflects that there may be outstanding treatment records.  During the September 2015 hearing, the Veteran stated that he sought treatment and corrective surgery for scars to his face from Dr. C. in Bethesda, Maryland.  Although the Veteran submitted a January 2009 private consultation report showing that he underwent a consultation for scars on his forehead, as there may be additional private treatment records available, on remand, the Veteran should be given an opportunity to identify any outstanding private treatment records, to include records from Dr. C., and submit appropriate authorization so that these records can be obtained by VA.  38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e).

The Board also finds that, based upon the Veteran's competent and credible lay statements of record, including his testimony to the undersigned regarding the scars on his forehead and face that were the a result of cuts due to brass with blow back, as well as the newly received private treatment record, dated in January 2009, showing treatment for scars over the Veteran's eyebrow, the Veteran should be afforded a VA examination so as to determine the current nature and etiology of any scar(s) on his forehead and face.  See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006).

Accordingly, the case is REMANDED for the following action:

1.  Furnish to the Veteran a letter requesting that he provide information and, if necessary, authorization, to enable VA to obtain any additional VA or non-VA treatment records pertinent to the claim on appeal. Specifically request that the Veteran provide, or provide appropriate authorization so as to allow VA to obtain, any outstanding private records, to include any records from Dr. C.  All reasonable attempts should be made to obtain such records.  

For private treatment records, make at least two (2) attempts to obtain records from any identified sources.  If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession.

For federal records, all reasonable attempts should be made to obtain such records.  If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file.  The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e).

2.  Contact any appropriate source, to include the National Personnel Records Center, the Department of the Army and/or the Veteran's Army Reserves unit(s), to obtain all service treatment records and to verify the appellant's periods of ACDUTRA and INACDUTRA.  In making these requests, use the Veteran's complete last name, as listed on his Form DD-214s.  Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities.  Continue efforts to obtain records and verify service until either the evidence/information is received, or until specific information that the evidence/information sought does not exist or that further efforts to obtain it/them would be futile is obtained.  All records and/or responses received should be associated with the record.

3.  After completing the above development, the Veteran should be afforded an appropriate VA examination to determine the current nature and etiology of any scars on his forehead and/or face.  The claims file, to include a copy of this Remand, must be made available to and review by the examiner.  Any indicated evaluations, studies, and tests should be conducted.  

Following a review of the record, to include the Veteran's private treatment records as well as his lay statements, the examiner should answer the following questions:

a)  Determine whether, at any point during the pendency of the appeal (since February 2007), the Veteran has had any scaring on his forehead and/or face.

b) Based on consideration of all pertinent medical and lay evidence (to include the Veteran's own assertions concerning in-service incurrence), the examiner should render an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any scarring on the Veteran's forehead and/or face present at any point during the pendency of the appeal (since February 2007), are related to the Veteran's military service.

A clearly-stated rationale for any opinion offered should be provided.

If the examiner cannot provide the requested opinion without resort to speculation, it must be so stated, and the examiner must provide reasons as to why such speculation would be required.

4.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence.  If the claim remains denied, the Veteran should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

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 2014).



______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs