Citation Nr: 22014067 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-45 630 DATE: March 11, 2022 ORDER Entitlement to service connection for a right-hand scar is denied. FINDING OF FACT The evidence of record weighs persuasively against finding that the Veteran has had a scar on his right hand since the filing of this claim or proximate to that, much less because of his service or service-connected disability. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for a right-hand scar. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service in the U. S. Navy from September 1992 to December 1999 and from January 2002 to September 2003. This appeal to the Board of Veterans' Appeals (Board) is from a November 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In an October 2021 decision since issued, this Board determined there was new and material evidence and, therefore, reopened this claim. But, rather than immediately readjudicating this claim on its underlying merits, de novo, the Board instead then proceeded to remand this claim back to the RO, in other words back to the Agency of Original Jurisdiction (AOJ), for further development and consideration including to determine whether the Veteran has this claimed disability or symptoms causing functional impairment of his earning capacity that, in turn, would permit considering his symptoms as a disability even absent any underlying diagnosis. See Sanders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). If that proof burden was met, the examiner would then need to comment additionally on the origin of this disability, especially in relation to the Veteran's military service and service-connected disabilities. There since has been the required compliance, certainly the acceptable substantial compliance, with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran or other claimant, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In a decision since issued in January 2022, on remand, the Decision Review Operations Center (DROC) granted service connection for right wrist tendinosis as a residual of an injury the Veteran had sustained to this wrist during his service. The Board also had remanded this other claim, so in addition to the claim for residuals of a fracture of his right hand including a consequent scar. Thus, it appears these claims are one and the same. In any event, if the Veteran disagrees with the initial rating and/or effective date assigned for his now service-connected right wrist disability, he must separately appeal these "downstream" issues. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Entitlement to service connection for a right-hand scar is denied. This claim as mentioned previously was remanded in October 2021 as part of a broader claim of entitlement to service connection for residuals of a fracture of the right hand, to include this additionally claimed consequent scar. On remand, service connection was awarded for the Veteran's right wrist and hand fracture residuals; however, his claim of entitlement to service connection for a consequent scar conversely was denied because there was no visible evidence of any residual scar. Notably in this regard, VA examinations in May 2016 and more recently in November 2021, the latter on remand, clearly indicate there is not any scar from with his right wrist or hand fracture. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Most fundamental to the claim, however, is the Veteran first establishing he has this claimed disability else, for all intents and purposes, there is no disability to, in turn, relate or attribute to his military service. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of a present disability there necessarily can be no valid claim). A current disability means a disability shown by competent and credible (i.e., probative) evidence to exist. See Chelte v. Brown, 10 Vet. App. 268 (1997). While the Board acknowledges the Veteran's contention that he has a scar attributable to, so as a residual of, his now-service-connected right wrist/hand fracture, this has not been confirmed objectively even after the additional examination on remand. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). There are times when a disability is evident, even to a layman, so without need for objective medical confirmation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). It is equally true that a scar is visible to the naked eye, so readily observable even by a layman such as the Veteran. See Kahana v. Shinseki, 24. Vet. App. 428 (2011) (explaining that whether medical versus lay evidence is needed to support a claim is a case-by-case, i.e., fact specific, determination based on the type of condition being claimed and dependent on whether the condition is simple or instead complex). However, a visible scar would be visible just as well to a VA compensation examiner, and the simple fact of the matter is that none was. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F.3d 1328 (1997). Because there is no evidence of a scarso in other words, a disabilityupon which benefits could be granted, the appeal for compensation for this disability is denied. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In denying this claim, the Board finds the benefit of the doubt doctrine is not applicable because there is not an approximate (nearly equal) balance of evidence for versus against this claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. B. Kucera 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.