Citation Nr: 1801481 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-24 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to a rating higher than 20 percent for residual non-disfiguring scars status-post burn injury with noncompensable limitation of motion of the right cervical area, right shoulder, right elbow, and right wrist. 2. Entitlement to service connection for hemorrhoids, to include as secondary to service-connected residual non-disfiguring scars. 3. Whether new and material evidence has been received to reopen a claim for service connection for a right side facial scar. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active service in the U.S. Air Force from February 1952 to January 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In that decision, the RO increased the assigned 10 percent rating for residual non-disfiguring scars from 10 percent to 20 percent effective from October 23, 2008. It also denied service connection for hemorrhoids, and declined to reopen a previously denied claim for service connection for a right side facial scar. The Veteran and his wife testified before the undersigned Veterans Law Judge at a Board hearing in May 2016. A copy of the hearing transcript is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to a rating higher than 20 percent for residual non-disfiguring scars is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Hemorrhoids are not etiologically related to service and are not proximately due to or aggravated by a service-connected disability. 2. The Veteran did not appeal a September 2007 rating decision which denied service connection for a right side facial scar, and evidence received since that decision does not relate to a previously unestablished element of the claim and does not otherwise raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for hemorrhoids have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. The September 2007 rating decision which denied service connection for a right side facial scar is final, and new and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.200, 20.302, 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (2017). Service connection is also warranted for a disability which is proximately due to, aggravated by, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2017). Unfortunately, the Veteran's service treatment records are not available. Earlier development of his claims revealed that they were likely destroyed in a fire at the National Personnel Records Center in 1973. In a case such as this, where service records are unavailable, there is a heightened obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). The Veteran is currently service-connected for scars resulting from burn injuries he sustained during active service. An old newspaper clipping submitted by the Veteran dated February 1953 documented this incident. He contends that, while hospitalized for these burns, he was unable to properly use the restroom. He stated that the restroom in the hospital was too hot for him to tolerate. As a result, he would wait as long as he could before having a bowel movement. When he could not wait any longer, he tried to go as fast as he could. See October 2010 Statement; Hearing Transcript at 21. He contends that these changes to his toileting habits led to his current hemorrhoid condition. Initially, the Board notes that while the Veteran claimed hemorrhoids secondary to his service-connected scars, he has not asserted that the scars themselves caused or aggravated the hemorrhoids. Rather, as noted above, the hemorrhoids are from the restroom situation described above that occurred while he was hospitalized for his burn injuries. Hearing Transcript at 28-29. Therefore, the Board need not address or otherwise develop the secondary service connection claim. Regarding the claim for direct service connection, the Board has considered the Veteran's testimony. However, private treatment records from March 1971 show the Veteran was diagnosed and treated for hemorrhoids. At the time, he reported only a two-year history of rectal pain and bleeding with bowel movements. These records noted that there were no previous hospitalizations and that the Veteran's past history was noncontributory. The Board has considered the Veteran's recent statements regarding hemorrhoids and toileting problems since 1953, but finds them to be less credible than the contemporaneous private records from 1971 which show a much shorter history of symptoms. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later); Struck v. Brown, 9 Vet. App. 145, 155-56 (1996) (contemporaneous medical findings may be given more probative weight). Moreover, these records include statements made by the Veteran to physicians for the purpose of diagnosis and treatment, and are exceptionally trustworthy because the Veteran had a strong motive to tell the truth in order to receive proper care. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). For these reasons, the overall weight of the evidence is against a finding that hemorrhoids were incurred in service, and service connection is not warranted. II. New and Material Evidence Historically, the Veteran was denied service connection for a right side facial scar in a September 2007 rating decision, which he did not appeal. Although the Veteran's in-service history of burn injuries was well-established, the basis of the denial was that there was no current scarring of the face. Generally, a claim that has been denied by an unappealed RO decision or an unappealed Board decision may not thereafter be reopened. 38 U.S.C. §§ 7104(b), 7105(c). An exception to this rule exists for cases in which new and material evidence is presented or secured with respect to a claim that has been disallowed, in which case the claim must be reopened and the former disposition reviewed. 38 U.S.C. § 5108 . "New" evidence means evidence not previously submitted to agency decisionmakers, and "material" evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). This is a "low threshold" in which the phrase "raises a reasonable possibility" should be interpreted as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The credibility of the newly-submitted evidence is presumed, although not blindly accepted as true if patently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). Since the prior final rating decision, additional evidence has been received. However, this evidence continues to show that there is no current scarring of the face. The Veteran underwent a VA examination in June 2013. The examiner stated that he could no longer visualize a scar on the Veteran's face. In August 2016, the Veteran underwent an unrelated VA examination for his posttraumatic stress disorder. Nevertheless, that examiner also indicated that there were no visible scars on the Veteran's face. The Veteran's VA treatment records have been associated with the claims file, but they do not reference any facial scars. Notably, photographs were taken as part of the June 2013 VA examination. Pursuant to Colvin v. Derwinski, 1 Vet. App. 171 (1991), the Board itself is precluded from making medical determinations. However, VA does allow adjudicators to take unretouched color photographs into consideration when evaluating scars under the VA's rating schedule. See 38 C.F.R. § 4.118, Diagnostic Code 7800, Note (3). In that context, the Board has reviewed the photographs but it also cannot discern any right side facial scarring, which would be consistent with the medical evidence discussed above. In sum, the evidence generated since September 2007 does not reflect a right side facial scar, and therefore new and material evidence has not been received to reopen the previously denied claim for service connection for that condition. As the claim is not reopened, the benefit-of-the-doubt standard of proof does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER Service connection for hemorrhoids is denied. The request to reopen a previously denied claim for service connection for a right side facial scar is denied. REMAND With respect to the Veteran's claim for an increased rating for residual non-disfiguring scars, further development is warranted. During his May 2016 hearing, the Veteran testified that he experiences painful itching associated with his scars, including around the right shoulder blade. Private records from May 2008 noted a diagnosis of mid-upper back bacterial folliculitis. August 2013 private records include a diagnosis of chronic scleroderma changes and pruritus of the right upper back. VA records from August 2016 show the Veteran's chief complaint was a mildly pruritic upper thoracic rash since his time in the military. The Veteran was afforded a VA examination in June 2013. However, findings pertaining to a rash or similar condition were not specifically addressed. In order to obtain an accurate assessment of the Veteran's scar residuals, a new examination is necessary. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination to determine the current severity of all residuals associated with his service-connected post-burn injury scars. The claims file should be made available to the examiner as part of the examination. The Veteran specifically requested that the examination be conducted at the VA facility in Port Angeles, Washington. The RO should attempt to schedule the examination at that location or at another nearby facility convenient to the Veteran. The examiner should take a complete history from the Veteran and provide a detailed description of the symptoms and functional impairments related to the Veteran's post-burn injury scars of the right cervical area, right shoulder, right elbow, and right wrist. Unretouched color photographs should be included as part of the examination. The examiner must describe specifically the amount and measurements of the scars of the right cervical area, right shoulder, right elbow, and right wrist. The examiner should comment on whether any scars are painful, deep (associated with underlying soft tissue damage), and/or unstable (with frequent loss of covering of skin over the scar). The examiner should also identify any folliculitis, dermatitis, scleroderma, pruritic rash or other skin condition in the areas of the right cervical area, right shoulder, right elbow, and right wrist. The examiner should provide an opinion as to whether any such diagnosed conditions are associated with the Veteran's burn scar residuals. The examiner must offer an explanation for the opinion. The examiner should render specific clinical findings as to the percentage of the total area of the body affected by any such conditions, as well as the percentage of the total amount of exposed areas affected. The examiner should also indicate whether any such conditions require treatment with systemic therapy such as corticosteroids or other immunosuppressive drugs and should identify the total duration of such required treatment during the relevant time period. The examiner should assess the range of motion, in degrees, in the areas of the cervical spine, right shoulder, right elbow, and right wrist caused by the post-burn injury scars, including as due to pain, and specifically stating the point at which pain begins. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. After completion of the requested development, readjudicate the Veteran's claim for an increased rating for residual non-disfiguring scars status-post burn injury with noncompensable limitation of motion of the right cervical area, right shoulder, right elbow, and right wrist. If the claim is not granted to the Veteran's satisfaction, provide him and his representative with a supplemental statement of the case (SSOC) and allow them an appropriate time to respond before returning the matter to the Board for further appellate consideration. 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. §§ 5109B, 7112 (2012). ______________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs