Citation Nr: 21042307 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 11-33 891 DATE: July 12, 2021 ORDER Entitlement to service connection for residuals of a left arm burn, including pain as a disability is denied. FINDING OF FACT The Veteran does not have diagnosed residuals of an in-service burn injury, nor does the competent evidence of record attribute his left arm pain to service. CONCLUSION OF LAW The criteria for service connection for residuals of a left arm burn, including pain as a disability, are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from October 1967 to October 1969. This case is on appeal to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in January 2010. The Veteran testified at a Board hearing in March 2014. In April 2014, he was notified that, due to technical difficulties, a transcript of the hearing could not be made. The Veteran was offered another hearing, but he did not reply to the letter by indicating that he requested another one. This case was most recently before the Board most recently in July 2019, at which time it was remanded to the AOJ for additional development. The Board finds that the AOJ substantially complied with remand directives, and the issue is ready for adjudication. See Stegall v. West, 11 Vet. App. (1998). Notably, the claims file shows that all mail VA has sent to the Veteran since approximately July 2018 has been returned as undeliverable. However, there is no indication that the Veteran did not receive a copy of the November 2017 Board decision, wherein this claim for service connection was also remanded and it was requested that the Veteran be scheduled for a VA examination. The case was again remanded in July 2019 for the AOJ to attempt to continue efforts to locate the Veteran. In August 2019, the AOJ requested the Veteran's last known address from the Social Security Administration (SSA). In December 2019, the AOJ made several attempts to contact the Veteran by phone, without success. In February 2020 and May 2020, the AOJ again requested last known contact information for the Veteran. In August 2020, phone contact was again attempted. In February 2021, the AOJ suspended the Veteran's benefit payments because his whereabouts were unknown. The Board requested SSA information in December 2020, February 2021, and July 2021. There is no indication from SSA or other reports of a new address for the Veteran that VA has not attempted since July 2018. The Board notes that VA has made numerous attempts for over two years to locate the Veteran and afford him a VA examination. VA's duty to assist a claimant is not a one-way street, and in the instant case, the Veteran has failed to cooperate to the full extent in the development of his claim. Wood v. Derwinski, 1 Vet. App. 406 (1991). Where entitlement to a benefit cannot be established or confirmed without a current VA examination and the Veteran fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. §§ 3.655 (a)-(b) (2018). In view of the foregoing, the Board concludes that there is no duty to attempt to provide another examination or obtain a medical opinion. And, as VA has fulfilled the duty to notify and assist to the extent possible, the Board can consider the merits of this appeal without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 1. Entitlement to service connection for residuals of a left arm burn, including pain as a disability Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110. Service connection can be established by evidence that shows "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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 (1992). Service connection may only be awarded to an applicant who has a disability existing on the date of application or at any time during the appellate period, not for past disability. Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997)); Romanowsky v. Shinseki, 26 Vet. App. at 294. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran contends that he has left arm pain and residuals from a burn that occurred while he was stationed in Korea. The Veteran reported that he was hospitalized for a month or two following the burn. Turning to the evidence, the Board initially notes that the Veteran's service treatment records (STRs) are silent for any diagnosed left arm or shoulder disabilities or residuals from a burn. At an enlistment examination in June 1967, the Veteran was noted to have a birth mark on his left arm. Otherwise, clinical evaluation of his upper extremities was normal. The Veteran's records indicate he was stationed in Korea from February 1968 to March 1969, but there is no mention of burn injury or hospitalization while stationed there. The Veteran underwent a separation examination in September 1969. His upper extremities were noted to be normal, and there are no burn residuals documented. In October 1969, the Veteran indicated that, while it had been several weeks since his separation examination was conducted, he had no change in his medical condition. The Veteran had a VA examination in December 1984. He reported that, while he was in Korea, a diesel generator exploded injuring and burning his left shoulder. The Veteran reported that he was hospitalized for burn treatment, but no grafting was done. He reported pain in the left shoulder and left elbow. On examination, the Veteran had an area of hyperpigmentation, but no scars. He was diagnosed with superficial burns of the left shoulder and arm "(recovered)." The Veteran submitted a written statement in October 2009. He explained that he slipped and fell and hit a very hot heater, which burned him. The Veteran reported that he could not use his arm well because of pain. In June 2015, the AOJ notified the Veteran that it had requested hospitalization records from 1968, and no records were located. The Veteran's outpatient records have been associated with the claims file. They do not show any diagnosed left shoulder or left arm disability. Having reviewed the evidence, the Board finds that service connection for residuals of a left shoulder and arm burn is not warranted. First, Veteran's STRs do not document that a burn injury occurred in service. The Board notes that the Veteran's report of how he was injured changed from the December 1984 VA examination to the October 2009 written statement. Moreover, the competent evidence shows that the Veteran did not have a diagnosed burn of the left upper extremity during service. Second, the competent evidence of record does not show a diagnosed disability for which service connection may be granted. The Veteran's outpatient records do not document a diagnosed residual of a burn. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran's STRs show that there was no left upper extremity pathology found on separation and he had normal clinical evaluation of the upper extremities in September 1969. The December 1984 VA examiner did not diagnose any residuals. Without a disability, service connection may not be granted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). Therefore, the Board finds that service connection for residuals of a burn injury is not warranted. While the Veteran reported that he experienced pain in his left upper extremity, there is no competent evidence showing that the Veteran's left arm pain is associated with any in-service burn that may be considered a residual. Moreover, there is insufficient evidence indicating that the Veteran's pain causes functional impairment to warrant service connection. See Saunders v. Wilkie, 886 F.3d 1356 (2018) (pain in the absence of a diagnosed condition which causes functional impairment may, in certain circumstances, qualify as a disability for service connection purposes). The Veteran reported difficulty using his arm, but without more, the Board cannot conclude that any impairment is caused by the pain that the Veteran described, or that the pain is attributable to service. Moreover, the Board cannot determine the nature or extent of the impairment without more details. For example, it is not clear from the record whether the Veteran has a shoulder disability, an elbow disability, a skin disability, a muscle disability, or a nerve disability. Due to the insufficient evidence provided by the Veteran, the Board concludes that the preponderance of the evidence is against the claim. The Board also finds that there is no evidence to suggest that the Veteran is competent to diagnose burn residuals. The issue is medically complex, as it requires the interpretation of symptoms and medical findings by a trained medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given that the medical professionals have not identified any diagnosed residuals in the available records, and the December 1984 examiner specifically considered the Veteran's reported symptomatology, the Board must rely on the competent medical evidence before it in concluding that there were no diagnosed sequelae. The Board gives the competent medical evidence significant weight in this regard. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Smith, 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.