Citation Nr: 21063958 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 10-23 941 DATE: October 18, 2021 ORDER Entitlement to service connection for second degree burn scars is denied. FINDING OF FACT There is no competent evidence of record that shows that the Veteran has second degree burn scars etiologically related to his service (and a burn injury therein). CONCLUSION OF LAW Service connection for second degree burn scars is not warranted. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from August 1986 to February 1990 and served in the Navy Reserves from February 1990 to October 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2009 Department of Veterans Affairs (VA) rating decision. In June 2010 VA Form 9, he requested a hearing before the Board, and was scheduled for such hearing in January 2015. The hearing was then rescheduled twice (in April 2015 and January 2017). He failed to appear (and did not provide cause); consequently, his hearing request is deemed withdrawn. See 38 C.F.R. §§ 20.703, 20.704. In July 2015, May 2017, and May 2019, this matter was remanded for additional development. [In July 2015, May 2017, and May 2019, the Board also remanded for further development the matter of service connection for a psychiatric disability. A June 2021 rating decision granted service connection for a psychiatric disability, rated 100 percent, effective January 14, 2008. Consequently, that issue is no longer before the Board.] [In May 2021, the Veteran expressed verbally that he was no longer interested in pursuing his appeal. In May 2021 and September 2021 correspondence, VA requested him to submit a written withdrawal of the appeal. He did not respond. Therefore, the appeal remains before Board.] Entitlement to service connection for second degree burn scars is denied. At the outset, the Board finds there has been substantial compliance with its July 2015, May 2017, and May 2019 remand directives in this matter to the extent possible without the Veteran's cooperation. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002); Stegall v. West, 11 Vet. App. 268 (1998). Scar examinations to confirm the claimed scars and determine their nature and likely etiology were scheduled in March 2018, April 2018, June 2018, and October 2018. He failed to report on each occasion. In May 2019, the Board (noting that the Veteran was not notified of the April 2018, June 2018, and October 2018 examinations by phone or in writing, remanded the matter, once again, for a scar examination. The Veteran cancelled such examination (scheduled in May 2021). He has not expressed willingness to appear for an examination if one was rescheduled (or given good cause for his cancellation). Under 38 C.F.R. § 3.655(b), when a Veteran fails, without presenting good cause, to report for an examination scheduled in connection with an original claim for compensation, the claim must be decided based on the evidence of record. Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the disease or injury in service and the current disability. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The diagnosis of a second degree burn scar, and its etiology (whether it is related to a burn injury in remote service) are medical questions. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Veteran's military occupational specialty (MOS) in service was electrical/mechanical equipment repairman. He contends that his scars resulted from burns he sustained when a pipeline burst in the boiling room in service. The Veteran's service treatment records (STRs) are silent for complaints, findings, treatment or diagnosis of second degree burn scars. On his January 1990 service separation examination, it was noted that there he had no identifying body marks or scars. An April 2008 statement by the Veteran relates that a pipeline burst in service, spraying 400-degree water/steam on his left torso and arm. In an April 2021 statement, a former fellow service member relates that the Veteran was burned by water (which flashed to steam immediately upon escaping to atmospheric pressure) when a pipeline burst. He stated that the severity of the Veteran's burns was compounded by his standing in the bilge, below the level of the deck plates (to have full access to the main feed lubricating oil sump for proper cleaning). The Veteran has not submitted (or identified for VA to obtain) any medical evaluation or treatment records (VA or private) that show he has second degree burn scars and/or show or suggest that such scars may be related to a steam burn injury in service. The record does not contain any medical records showing that he has a second degree burn injury (scar) disability and its etiology. Based on his MOS, the Board finds the Veteran's (and a fellow former service-member's accounts that he was in the boiler room when a pipeline burst, spraying scorching water/steam that resulted in some sort of scalding/burn injuries to his left torso and arm (though STRs do not document such incident) plausible. As his account is corroborated by the supporting statement, and the Board finds no basis in the record to discount both their accounts as not credible, the Board finds that for purposes of this appeal it may reasonably be conceded that such an incident occurred. However, the occurrence of an incident that resulted in some injury is but one of three threshold elements necessary to substantiate a claim for service connection. What remains necessary to substantiate this claim is evidence that he has burn scars (claimed as 2nd degree burn scars) and competent (medical) evidence that the scars are related to (residuals of) the scalding/burn injuries he and the provider of the supporting statement report. The Veteran is competent to report that he has scars. However, whether they are indeed burn scars from a second degree (involving underlying skin and not just the outer skin) injury and related to burns sustained in remote service are medical questions beyond the realm of common knowledge, and incapable of resolution by lay observation. See Jandreau, 492 F.3d at 1377. They require medical expertise (as not all second-degree burns leave visible residual scarring). The Board observes that the fact that there are no medical records showing that the Veteran has scars, and in particular of the nature and severity he alleges in the record, and that considering that there is not even mention of burn scars in evidence of record prior to the Veteran's report of such in 2008 (some 18 years after service), such of itself is evidence for consideration weighing against the claim. As the Veteran and his buddy are laypersons (not shown, or alleged to have medical knowledge or training), and the Veteran does not cite to supporting medical evidence. Therefore, neither of the further requirements for substantiating a claim of service connection is met. The agency of original jurisdiction and the Board have sought to assist the Veteran in developing evidence to substantiating this claim by arranging for VA examinations to confirm his reported scarring, and determine whether it is indeed second degree burn scarring from a remote injury such as has been described. The Veteran has repeatedly cancelled (and failed to report for) the scheduled scar examinations, and has not provided good cause for his failure to report, or requested that the examination be rescheduled. His failure to cooperate frustrates VA's attempts to confirm he has the disability claimed and determine its etiology. As a direct consequence of his failure to cooperate, the Board is presented with a record that is inadequate to substantiate his claim; two of the three threshold element to substantiate a claim of service connection are not met. The duty to assist a claimant is not a one-way street. See Olsen v. Principi, 3 Vet. App. 480 (1992); see also Wood v. Derwinski, 1 Vet. App. 406 (1991). Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim, and that the appeal in this matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Chu, 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.