Citation Nr: 18149829 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 16-56 519 DATE: November 14, 2018 ORDER Entitlement to service connection for burn scars of the right leg is denied. Entitlement to service connection for burn scars of the right upper arm is denied. FINDINGS OF FACT 1. The evidence of record shows that the Veteran clearly and unmistakably had burn scars of the right leg which existed prior to service and which were not aggravated by service. 2. The evidence of record shows that the Veteran clearly and unmistakably had burn scars of the right upper arm which existed prior to service and which were not aggravated by service. CONCLUSIONS OF LAW 1. The Veteran’s pre-existing burn scars of the right leg were not aggravated by his active service. 38 U.S.C. §§ 1110, 1111 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2018). 2. The Veteran’s pre-existing burn scars of the right upper arm were not aggravated by his active service. 38 U.S.C. §§ 1110, 1111 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1951 to July 1951. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at an informal conference before a Decision Review Officer (DRO) in August 2016. The Veteran’s claims were reopened and remanded for additional development in a March 2018 Board decision. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2018). 38 U.S.C. § 7107(a)(2) (2012). Service Connection The Veteran contends that his right upper arm and right leg burn scars were aggravated by service. Specifically, he contends that his burn scars existed at his entrance to service and he sought treatment for the leg and foot during service. See Veteran’s statement dated in October 1977. A Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. “Service connection” basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). Under VA regulations a Veteran is presumed to be in sound condition when he entered into military service, except for defects, injuries, or condition noted on the entrance examination. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. With regard to the Veteran’s service treatment records (STRs), the Board acknowledges that the STRs are fire-related and unavailable. The Veteran was notified of this in an October 2015 letter. The Court of Appeals for Veterans Claims (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board’s analysis has been undertaken with this heightened duty in mind. 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 Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). In this case, the Veteran’s STRs are unavailable. Thus, he is presumed to be sound upon entering service. See Doran v. Brown, 6 Vet. App. 283, 286 (1994) (where there was no entrance examination report of record because it was presumed to have been lost in a fire, the presumption of soundness attached as reflected by the conclusion that it had been rebutted by clear and unmistakable evidence of the pre-service existence of the disability). In cases where the claimed disability is shown to be preexisting, it will be presumed to have been aggravated by service where there was an increase in disability during service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; see also Horn v. Shinseki, 25 Vet. App. 231, 238 (2012). Thus, in order to rebut the presumption of soundness, VA must prove that there is evidence both that the Veteran’s burn scars of the right upper forearm and right leg clearly and unmistakably existed prior to service and that they were not aggravated therein. VAOPGCPREC 03-2003 (July 16, 2003). The Board previously determined that the presumption of soundness, as it pertains to the Veteran’s burn scars of the right leg and right forearm, has been rebutted. On various medical records associated with the claims file, the Veteran’s burn scars were reported to have been incurred prior to the Veteran’s entrance to service. Moreover, on August 2016 VA examination, the examiner opined that the Veteran’s burn scars pre-existed his service. This is not in dispute. As his burn scars of the right leg and right forearm pre-existed service, the Veteran cannot bring a claim for service connection for incurrence of burn scars of the right leg and right forearm, but he may bring a claim for service-connected aggravation of that disorder. Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). As noted, the Veteran’s STRs are not of record. The Veteran’s DD Form 214 reflects that that the Veteran was discharged “For convenience of Government – Disability existing prior to entry into active military service and not aggravated by military service.” The Veteran was examined for a pension evaluation in June 1976. He reported that he was burned while working in a lumber yard prior to enlistment in the Army. He reported weakness without edema, contractures, or decreased ambulatory ability. The examiner reported that the Veteran had a remote burn without suppuration, bleeding, or edema and no neurologic deficit or weakness. The examiner assessed the Veteran with no disability from the injury. He was noted to be status post burn of the right leg. At an August 1976 VA examination, the Veteran was reported to have a scar of the right forearm, elbow, and upper arm. The area was grafted and all healed with no limitation of elbow or wrist function. He also had a scar on the right lower leg which was grafted and healed. The right and left calf and right and left ankle measurements were equal. The examiner assessed the Veteran with status post burn of the right leg in 1948. Associated with the claims file is a medical report from S. Fabian, M.D., dated in July 1982. Dr. Fabian reported that the Veteran was discharged from service by reason of marked weakness in both legs and since his discharge had worked numerous temporary jobs for variable periods of time as a laborer but had not worked productively since 1979. He was noted to have suffered third degree burns over the right upper and lower extremities in 1948 with skin grafting over the wide area of the upper extremities. Following a physical examination, Dr. Fabian reported that there was clinical evidence of irreversible and irreparable loss of functional use of the right upper and lower extremity. The examiner diagnosed the Veteran with deformity, cicatrices, upper and lower extremity, severe caused by massive third degree burns and brachial plexus, right, caused by extensive scarring. At a September 1982 VA examination, the Veteran was noted to have burns of the right arm and right lower leg from diesel fuel in 1948. There was no evidence of skin breakdown and range of motion of all joints was within normal limits. The examiner assessed the Veteran with third degree burns with residual scars and skin grafting. At a May 1987 VA examination, the Veteran was noted to have sustained severe burns to the right upper and lower extremity which was treated with skin grafts from which the Veteran recovered without apparent sequelae. The examiner noted that after six months in service, he had right hip and right shoulder pain. At a July 1987 VA examination, the Veteran had full range of motion of the right shoulder, right elbow, and right hip. The burn scars of the right lower extremity were reported to be well healed without significant cicatrix. VA outpatient treatment reports dated as early as 1999 reflect scarring from an old burn injury but do not include treatment for the scars. In June 2016, the Veteran reported that he was in the Army for six months but had to be discharged due to the consequences of the burns that he sustained prior to going into service. He reported that he worked on the railroad and in a Ford factory after service. At the informal conference in August 2016, the Veteran’s representative indicated that the Veteran was accepted with the burn scars at his entrance to service but went to sick call multiple times during service and was eventually discharged for medical reasons which supports that there was a change in the severity of the Veteran’s medical condition during service. The Veteran also submitted a statement in August 2016 and reported that during service he had right foot, leg, and ankle swelling and tenderness, and flaking and bleeding of those body parts. He also had trouble with lifting his arm over his head and the scar tissue was painful and bled. He also noted that his back ached and burned due to carrying heavy backpacks. The back also burned, bled, and was tender. At an August 2016 VA examination, following a clinical evaluation, the examiner opined that the Veteran’s right arm and right leg scars which clearly and unmistakably existed prior to service were not aggravated beyond the natural progression during service. The examiner’s rationale was that the Veteran was able to work manual labor following his discharge from service. Additionally, while the Veteran had leg issues during service which occurred intermittently after discharge, the issues of swelling and discomfort would have occurred due to the scarring whether or not basic training would have occurred and would have been associated with his activities post discharge. The current findings were reported to be likely to have occurred despite service and medically appear to be a natural progression of injuries suffered prior to service. The examiner also concluded that there was no diagnosis of a muscle or nerve injury and no other apparent leg injury. At a July 2018 VA examination, the Veteran reported that he sustained burns while working in a lumber yard. He reported that he could not proceed with basic training due to swelling of the right lower extremity from hiking and walking. He reported that he was admitted to the hospital during service due to complications from the right leg burn and had irritation of the right upper arm from crawling during basic training. He denied any current pain or limitation from the burns. After reviewing the claims file and examining the Veteran, the examiner opined that there is clear and unmistakable evidence that the burn scars did not undergo a worsening in service to a permanent degree beyond that which would be due to the natural progression of the disability. No significant injury or trauma was noted to the burn scars in service that would be anticipated to cause a permanent aggravation. The examiner also opined that there is no medical evidence that the rigors of basic training could have aggravated the burn scars beyond the natural progression which led to an early discharge from service. The examiner noted that there was no significant injury or trauma noted to the burn scars in service that would be anticipated to cause a permanent aggravation. In an August 2018 addendum, the examiner reviewed additional evidence including statements of the Veteran and his representative and medical reports from Dr. Fabian and others, and specifically found that there is clear and unmistakable evidence that the pre-existing disability did not undergo a worsening in service to a permanent degree beyond that which would be due to the natural progression of the disability. The examiner noted that there was no significant injury or trauma noted to the burn scars in service that would be anticipated to cause a permanent aggravation. The examiner stated that there was no medical evidence that after the Veteran left service, he had permanent aggravation of the burns beyond the natural progression of the burn injury. Moreover, he was able to work manual labor jobs until at least 1979 which would confirm that service did not permanently aggravate the burn scars beyond the natural progression. The examiner also noted that it would be anticipated that removal from military service would resolve the irritation caused by military duties. Having reviewed all of the evidence of record, the Board has determined that service connection is not warranted for burn scars of the right leg or right upper arm. The Board acknowledges the Veteran’s report of treatment for his burn scars during service and the DD Form 214 which notes that the Veteran was removed from service due to a pre-existing disability. However, that record also specifically noted that the pre-existing disability did not undergo any aggravation. Moreover, the post-service treatment reports reflect that the Veteran worked manual labor positions for more than twenty-five years after service. This argues against any permanent worsening of either the right upper arm or right leg scar as his activity post service was not restricted by the scars. Additionally, the earliest medical evidence of record, the June 1976 pension examination, reflects that the Veteran had a remote burn without suppuration, bleeding, or edema and no neurologic deficit or weakness. The examiner assessed the Veteran with no disability from the injury to the right leg. The August 1976 VA examiner indicated that the scars of the right arm and right leg were healed and no additional disability was diagnosed at that time. In fact, with the exception of the July 1982 medical report from Dr. Fabian who found that there was clinical evidence of irreversible and irreparable loss of functional use of the right upper and lower extremity, the medical evidence of record suggests that there were no significant functional impairments associated with the right upper arm or right leg scars. Moreover, the impairments noted by Dr. Fabian were not attributed to the Veteran’s active duty service. As such, there is no evidence that there was any permanent aggravation resulting from service. Additionally, the August 2016 VA examiner opined that the Veteran’s right arm and right leg scars which clearly and unmistakably existed prior to service were not aggravated beyond the natural progression during service. Although the examiner included a rationale for the conclusion, the Board determined that the examiner failed to consider the Veteran’s lay statements. As such, another examination was obtained and the second examiner also opined that there is clear and unmistakable evidence that the Veteran’s preexisting claimed scars were not permanently worsened beyond the natural progress of the disabilities during his service. The examiner considered the lay evidence as well as the medical evidence of record and provided a conclusion with a sufficient rationale. Therefore, the VA medical examination and opinion provides probative evidence against the Veteran’s claims of high probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds the evidence of record does not establish the Veteran’s burn scars of the right upper arm and right leg permanently increased in severity during his service. As such, service connection is not warranted based on aggravation of the Veteran’s pre-existing scars during service. Therefore, service connection based on aggravation of the Veteran’s right upper arm and right leg scars during service is denied. Although the Veteran contends that his scars were aggravated by his active service, the Veteran has submitted no competent medical evidence or opinions to corroborate such a contention. 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). The Veteran’s opinion is not competent to provide the requisite etiology of the scars of the right leg and right upper arm, because such a determination requires medical expertise. As a lay person, the Veteran is considered competent to report what comes to him through him senses, but he lacks the medical training and expertise to provide a medical opinion as to the etiology of the scars. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, the weight of the competent evidence is against a finding that the Veteran’s preexisting right upper arm and right leg scars were permanently aggravated beyond the natural progress of the conditions during his active service. Therefore, the criteria for service connection have not been met, and the Veteran’s claim is denied. The preponderance of the evidence is against the Veteran’s claims and the doctrine of reasonable doubt is not applicable in the instant appeal. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Cryan, Counsel