Citation Nr: 20047331 Decision Date: 07/15/20 Archive Date: 07/15/20 DOCKET NO. 14-14 393 DATE: July 15, 2020 ORDER New and material evidence having been presented, the claim of entitlement to service connection for residuals of a burn to the hands is reopened. The claim of entitlement to service connection for residuals of a burn to the hands is denied. The claim of entitlement to service connection for residuals of a burn to the head is denied. FINDINGS OF FACT 1. A July 1957 rating decision denied the claim of entitlement to service connection for residuals of a burn to the hands; the Veteran did not appeal the decision or submit any pertinent evidence within the appeal period and the decision is now final. 2. Evidence received subsequent to the expiration of the appeal period is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for residuals of a burn to the hands. 3. Residuals of a burn to the hands have not been present during the period of the claim. 4. Residuals of a burn to the head have not been present during the period of the claim. CONCLUSIONS OF LAW 1. New and material evidence has been presented to reopen the claim of entitlement to service connection for residuals of a burn to the hands. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. The criteria for establishing entitlement to service connection for residuals of a burn to the hands have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 3. The criteria for establishing entitlement to service connection for residuals of a burn to the head have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service in the United States Army from June 1954 to May 1957. In March 2014, the Veteran requested a Board hearing, however, he withdrew his request in September 2017. In January 2018, this case was remanded for additional development. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Additionally, the Board finds there has been substantial compliance with its January 2018 remand directives. The claim was remanded to attempt to verify the Veteran’s National Guard Service, obtain outstanding service treatment records, and to obtain the 1955 private treatment records from a civilian hospital in Nome, Alaska. In February 2018, July 2019, and December 2019 requests for information, the RO attempted to verify the Veteran’s National Guard service or to obtain outstanding service treatment records. Responses indicated that all available records were previously uploaded or that they were fire related. In June 2018 and December 2019, the RO notified the Veteran that his military records could have been destroyed by the 1973 fire and requested that the Veteran complete a NA Form 13055 in order to conduct a more thorough search for the records. The Veteran did not respond to the June 2018 and December 2019 letters. In a March 2020 letter, the RO requested that the Veteran complete the VA Form 21-4142 and the VA Form 21-4142a, in order to obtain the Veteran’s 1955 private treatment records. Again, the Veteran did not respond to the letter. While VA has a statutory duty to assist in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence. The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, given the multiple attempts to develop according to the Board’s remand instructions, the Board finds that the RO substantially complied with the remand instructions and adjudication may proceed on the merits. Stegall v. West, 11 Vet. App. 268, 271 (1998). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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. § 5107 (West 2014); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. New and Material Evidence Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (2012). “New” evidence is defined as existing evidence not previously submitted to agency decision-makers. “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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for residuals of a burn to the hands. The RO initially denied service connection for residuals of a burn to the hands in July 1957. The RO determined that the evidence did not show in-service incurrence of a burn to the hands and that there was no diagnosis of such. The Veteran did not appeal the denial or submit any pertinent evidence within the appeal period. Therefore, the decision is final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § § 20.201, 20.302, 20.1103 (2018). In October 2011, the Veteran filed a claim to reopen the issue of entitlement to service connection for residuals of a burn to the hands. Evidence received since the July 1957 rating decision includes an April 2014 statement from the Veteran that he sustained burn injuries during service when he was refueling a Herman-Nelson heater. The evidence constitutes new and material evidence. This follows because the evidence relates to a previously unestablished element that is necessary to grant entitlement to service connection for residuals of a burn to the hands. Accordingly, reopening of the claim of service connection for residuals of a burn to the hands is warranted. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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, injury, or event and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (finding service connection presupposes a current diagnosis of the condition claimed). The requirement that a current disability be present is satisfied, “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim... even though the disability resolves prior to the Secretary’s adjudication of the claim.” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board acknowledges that some of the Veteran’s service records may have been destroyed due to a 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri. VA has a heightened duty to consider the applicability of the benefit of the doubt rule when there is evidence that a Veteran’s service records have been lost or destroyed. Destruction or loss of service treatment records does not create a heightened benefit of the doubt, but only a heightened duty on the part of VA to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision. 2. The claim of entitlement to service connection for residuals of a burn to the hands is denied. Please see discussion in paragraph 3. 3. The claim of entitlement to service connection for residuals of a burn to the head is denied. The Veteran asserts that his claimed residuals of a burn to the hands and head were caused by an in-service burn injury. A review of the Veteran’s service treatment records does not show any treatment or complaints related to a burn injury. Significantly, the Veteran’s April 1957 separation examination showed that his head, face, neck, scalp, upper extremities, and skin were clinically normal. The separation examination also showed that there were no identifying body marks, scars, or tattoos. Less than a month after the Veteran’s separation from service, he was involved in a motorcycle accident that resulted in injuries to his lower extremities. A June 1957 private treatment record included a physical examination, which was silent for burn residuals of the hands or feet. A June 1957 VA treatment record indicated that the Veteran was hospitalized for the injuries he sustained in the motorcycle accident. Again, there was no mention of the Veteran’s claimed burn residuals. More recent post-service medical records are also silent as to any residuals of a burn to the hands or head. A July 2010 private medical record indicated that a skin inspection was negative for any significant lesions, irritation, rashes, or ulcers. Another July 2010 private medical record noted silver plaque-like lesions along both knees suggestive of psoriasis. There were multiple scabs along the legs that the Veteran related to old trauma. There was no mention of burn residuals to the hands or head. A December 2010 private medical record noted scarring along the left forehead and around the left eye due to recent herpes zoster. VA treatment records also do not show a diagnosis of burn residuals of the hands and head. A December 2013 VA treatment record noted that the head was normal, with symmetrical features and no lesions. A physical examination of the extremities was also normal, except for dry skin between the toes. An August 2018 VA social work note documented the Veteran’s report that he was burned during service. However, the provider did not note the presence of any burn residuals. Accordingly, the Board finds that the weight of the evidence does not establish a diagnosis of residuals of a burn to the hands or head at any time during the period on appeal. As discussed above, the medical evidence includes multiple physical examinations of the skin, however, the records do not show the presence of burn residuals. The Board also acknowledges the Veteran’s statements that he sustained a burn injury during service that resulted in injuries to the hands and head. However, the Veteran’s April 1957 separation examination and the June 1957 medical records do not support the Veteran’s assertions. Additionally, the Veteran has not put forth evidence, such as photographs or statements about his current symptoms, to document a current diagnosis of residuals of a burn to the hands and head. Therefore, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). (Continued on the next page)   In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine does not apply, and service connection must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. N. Nolley, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.