Citation Nr: 0814458	
Decision Date: 05/01/08    Archive Date: 05/12/08

DOCKET NO.  04-31 080	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office 
Center in Wichita, Kansas


THE ISSUES

1.  Whether new and material evidence has been received to 
reopen a claim of entitlement to service connection for 
sinusitis.

2.  Whether new and material evidence has been received to 
reopen a claim of entitlement to service connection for 
residuals of penile surgery.

3.  Whether new and material evidence has been received to 
reopen a claim of entitlement to service connection for 
hemorrhoids.

4.  Entitlement to service connection for a low back 
disorder.

5.  Entitlement to service connection for headaches, 
including as secondary to sinusitis.




REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARINGS ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Douglas J. Boorstein, Associate Counsel


INTRODUCTION

The veteran served on active duty in the United States Army 
from May 1970 to January 1972.

This appeal to the Board of Veterans' Appeals (Board) arises 
from a rating decision in February 2004 by the St. Louis, 
Missouri, Regional Office (RO) of the Department of Veterans 
Affairs (VA).  This decision denied service connection for 
all five issues that are now on appeal, but did not make a 
determination regarding new and material evidence regarding 
the claims for service connection for sinusitis, residuals of 
a penile surgery, and hemorrhoids.  Jurisdiction over this 
case was transferred to the RO in Wichita, Kansas.  

The veteran filed his original application for VA 
compensation or pension in April 1972.  A determination by 
the RO in June 1972 denied the veteran's claims of 
entitlement to service connection for sinusitis, residuals of 
penile surgery, and hemorrhoids.  The veteran did not 
initiate an appeal to the Board of that rating action by the 
RO by filing a timely notice of disagreement and, 
consequently, the unappealed June 1972 RO denial of his 
claims for service connection for sinusitis, residuals of 
penile surgery, and hemorrhoids became final.  See 38 
U.S.C.A. § 7105 (West 2002).  In May 2003 and thereafter, the 
veteran submitted additional evidence in an attempt to reopen 
those three service connection claims.  The veteran also 
claimed service connection for headaches and a lower back 
condition.  

While the RO did not, initially, adjudicate the veteran's 
claims for service connection for sinusitis, residuals of 
penile surgery, and hemorrhoids based on new and material 
evidence, the Board notes that irrespective of the agency of 
original jurisdiction's (AOJ's) determination, the Board must 
decide whether the veteran has submitted new and material 
evidence to reopen the claim.  See Jackson v. Principi, 265 
F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 
(Fed. Cir. 1996).

A hearing was held before a member of the Board in August 
2005 and a transcript of this hearing was associated with the 
veteran's claims file.  The case was then remanded to the RO 
for further development in April 2006.  After this further 
development was accomplished, this case was returned to the 
Board.  However, the Board member who initially held the 
hearing was no longer employed by the Board.  When notified 
of this fact, the veteran indicated that he desired another 
hearing.  The case was therefore again remanded by Board 
decision dated August 2007, this time indicating that a 
hearing should be scheduled.  

In February 2008, the veteran testified at a personal hearing 
before the undersigned Veterans Law Judge.  A transcript of 
this hearing was prepared and associated with the claims 
file.


FINDINGS OF FACT

1. All relevant evidence necessary for an equitable 
disposition of the veteran's appeal has been obtained.

2.  The AOJ denied the veteran's claim of entitlement to 
service connection for sinusitis in a June 1972 rating 
decision.  Notice was issued to the veteran in June 1972.  
The veteran did not appeal the decision.

3.  Since the June 1972 rating decision, which denied 
reopening the claim for service connection for sinusitis, 
evidence that relates to an unestablished fact necessary to 
substantiate the claim has not been presented or secured.

4.  The AOJ denied the veteran's claim of entitlement to 
service connection for residuals of penile surgery in a June 
1972 rating decision.  Notice was issued to the veteran in 
June 1972.  The veteran did not appeal the decision.

5.  Since the June 1972 rating decision, which denied 
reopening the claim for service connection for residuals of 
penile surgery, evidence that relates to an unestablished 
fact necessary to substantiate the claim has not been 
presented or secured.

6.  The AOJ denied the veteran's claim of entitlement to 
service connection for hemorrhoids in a June 1972 rating 
decision.  Notice was issued to the veteran in June 1972.  
The veteran did not appeal the decision.

7.  Since the June 1972 rating decision, which denied 
reopening the claim for service connection for hemorrhoids, 
evidence that relates to an unestablished fact necessary to 
substantiate the claim has not been presented or secured.

8.  Competent evidence of a nexus between the veteran's low 
back condition and his service is not of record.  The 
veteran's current low back condition back disorder is not 
attributable to any events in service but is solely due to 
aging.

9.  Competent evidence of a nexus between the veteran's 
headaches and his service is not of record.  The veteran's 
current headaches are not attributable to his service, nor 
are they proximately due to or aggravated by any service-
connected disability.




CONCLUSIONS OF LAW

1.  The June 1972 rating decision that denied the claim of 
entitlement to service connection for sinusitis is final.  
Evidence received since that decision is not new and 
material.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. 
§§ 3.156(a), 20.1103 (2007).

2.  The June 1972 rating decision that denied the claim of 
entitlement to service connection for residuals of penile 
surgery is final.  Evidence received since that decision is 
not new and material.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 
38 C.F.R. §§ 3.156(a), 20.1103 (2007).

3.  The June 1972 rating decision that denied the claim of 
entitlement to service connection for hemorrhoids is final.  
Evidence received since that decision is not new and 
material.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. 
§§ 3.156(a), 20.1103 (2007).

4.  The veteran's low back condition was neither incurred in 
nor aggravated by service.  38 U.S.C.A. §§ 1110, 5107 (West 
2002); 38 C.F.R. §§ 3.102, 3.303 (2007).

5.  The veteran's headaches were neither incurred in nor 
aggravated by service nor are they proximately due to or 
aggravated by any service-connected disability.  38 U.S.C.A. 
§§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 
(2007). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

New and Material Evidence

Law and Regulations

RO decisions which are unappealed become final.  38 U.S.C.A. 
§ 7105(c); 38 C.F.R. § 20.1103.  A decision by the RO may not 
thereafter be reopened and allowed and a claim based upon the 
same factual basis may not be considered.  The exception to 
this rule is described under 38 U.S.C.A. § 5108, which 
provides that "[i]f new and material evidence is presented 
or secured with respect to a claim which has been disallowed, 
the [Board] shall reopen the claim and review the former 
disposition of the claim."  Therefore, once a rating 
decision has been issued, absent the submission of new and 
material evidence, the claim cannot be reopened or 
adjudicated by VA.  38 U.S.C.A. §§ 5108, 7105(c).

New evidence is defined as existing evidence not previously 
submitted to agency decision makers.  Material evidence is 
defined as existing 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 of record at the time of the last prior final 
denial of the claim sought to be reopened, and must raise a 
reasonable possibility of substantiating the claim.  38 
C.F.R. § 3.156(a).

When determining whether a claim should be reopened, the 
credibility of the newly submitted evidence is presumed.  
Justus v. Principi, 3 Vet. App. 510 (1992).  Additionally, 
when determining whether the appellant has submitted new and 
material evidence to reopen a claim, consideration must be 
given to all the evidence since the last final denial of the 
claim.  Evans v. Brown, 9 Vet. App. 273 (1996).  In Evans, 
the United States Court of Appeals for Veterans Claims 
(Court) indicated that the newly presented evidence need not 
be probative of all the elements required to award the claim, 
but need only tend to prove each element that was a specified 
basis for the last disallowance.  Id. at 284.

Analysis
Sinusitis

At the time of the prior RO decision in June 1972 which 
denied service connection for the veteran's sinusitis, the 
evidence of record consisted of the veteran's service medical 
records.  These records indicated that the veteran, on one 
occasion, in October 1971, indicated that he had chronic 
sinusitis.  On separation examination in November 1971, the 
veteran's sinuses were noted to be normal.  

Since that time, the veteran has submitted records indicating 
that he had sinus surgery throughout the 1980s.  The veteran 
has also testified at multiple hearings before the Board.

While these records and testimony are new, in that they were 
not of record at the time of the prior RO decision, they are 
not material.  They do not raise a reasonable possibility of 
substantiating the veteran's claim.  The records, even when 
considered with the other evidence of record, do not provide 
medical evidence that the veteran's sinusitis is related to 
his service.  A medical nexus is required to prove service 
connection.  See Hickson v. West, 12 Vet. App. 247, 253 
(1999).  As discussed above, evidence submitted to reopen a 
claim for service connection must be probative of each 
element that was the basis for the prior denial.  See Evans.  
Here, the veteran was denied service connection because he 
failed to appear for a VA examination.  At the time of the 
previous denial, there was neither a diagnosis nor a medical 
nexus between the veteran's current condition and his 
service.  While the veteran may sincerely believe that his 
current sinusitis is related to his service, he has not been 
shown to be a medical professional and therefore is not 
competent to provide medical evidence in support of his 
claim.  See Espiritu v. Derwinski, 2 Vet. App. 492, 494 
(1992).  Additionally, his statements are not considered 
competent to reopen the claim for service connection.  See 
Moray v. Brown, 5 Vet. App. 211 (1993) (lay assertions on 
medical causation do not constitute material evidence to 
reopen a previously denied claim).  Therefore, none of the 
evidence submitted constitutes new and material evidence and 
the claim is not reopened.  

New and material evidence has not been submitted to reopen 
the claim of entitlement to service connection for sinusitis; 
no further adjudication of this claim is warranted.  
38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. §§ 3.156(a), 20.1103; 
See Kehoskie v. Derwinski, 2 Vet. App. 31 (1991).



Residuals of Penile Surgery

With regard to the veteran's residuals of penile surgery, at 
the time of the prior denial by the RO in June 1972, the 
evidence of record consisted of the veteran's service medical 
records.  These service medical records indicated that the 
veteran had a frenulectomy of the penis during service in 
November 1971.  The service medical records also documented 
an injury to the veteran's testicles in December 1971.  The 
diagnosis was a mild muscle pull of the veteran's left groin.  
On separation examination in November 1971 the veteran's 
genitourinary system was normal.    

Since the RO's prior denial of service connection, the 
veteran has submitted medical records documenting his 
treatment for erectile dysfunction in 1993 and 1994.  While 
these records are new, in that they were not of record at the 
time of the prior RO decision, they are not material.  They 
do not raise a reasonable possibility of substantiating the 
veteran's claim.  The records, even when considered with the 
other evidence of record, do not provide medical evidence 
that the veteran's current erectile dysfunction is related to 
his service.  A medical nexus is required to prove service 
connection.  See Hickson.  At the time of the previous 
denial, there was not a medical nexus between the veteran's 
current condition and his service.  Again, evidence submitted 
must be probative of each element that was the basis of the 
prior denial.  See Evans.

While the veteran may sincerely believe that his current 
erectile dysfunction is related to his service, he has not 
been shown to be a medical professional and therefore is not 
competent to provide medical evidence in support of his 
claim.  See Espiritu v. Derwinski, 2 Vet. App. 492, 494 
(1992); see also Moray v. Brown, 5 Vet. App. 211 (1993) (lay 
assertions on medical causation do not constitute material 
evidence to reopen a previously denied claim).  Therefore, 
this evidence does not constitute new and material evidence 
and the claim is not reopened.  

New and material evidence has not been submitted to reopen 
the claim of entitlement to service connection for residuals 
of penile surgery; no further adjudication of this claim is 
warranted.  38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. §§ 3.156(a), 
20.1103; See Kehoskie v. Derwinski, 2 Vet. App. 31 (1991).

Hemorrhoidectomy

With regard to the veteran's hemorrhoidectomy, in June 1972 
the evidence considered by the RO consisted of the veteran's 
service medical records.  These service medical records do 
not indicate that the veteran had any problems with 
hemorrhoids during service.  The service medical records also 
document that on separation examination in November 1971, the 
veteran's anus and rectum were noted to be normal.  Also of 
record were medical reports showing that the veteran 
underwent a hemorrhoidectomy in April 1972.  

Since the RO's prior denial of service connection, the 
veteran has submitted various medical records.  The veteran 
has also testified at multiple hearings before the Board.  
While these records and the veteran's testimony are both new, 
in that they were not of record at the time of the prior RO 
decision, they are not material.  They do not raise a 
reasonable possibility of substantiating the veteran's claim.  
The records, even when considered with the other evidence of 
record, do not provide medical evidence that the veteran 
currently has hemorrhoids.  A disability is required for 
service connection to be granted.  See Hickson.

While the veteran may sincerely believe that he has 
hemorrhoids, he has not been shown to be a medical 
professional and therefore is not competent to provide a 
diagnosis regarding this condition.  See Espiritu and Moray.  
Therefore, the evidence submitted does not constitute new and 
material evidence and the claim is not reopened.  

New and material evidence has not been submitted to reopen 
the claim of entitlement to service connection for 
hemorrhoids; thus, no further adjudication of this claim is 
warranted.  38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. §§ 3.156(a), 
20.1103; See Kehoskie v. Derwinski, 2 Vet. App. 31 (1991).



Service Connection

Law and Regulations

The veteran also seeks service connection for his current low 
back disorder and headaches.  The veteran contends that these 
disabilities are the result of his service.  He adds that his 
headaches are secondary to his sinusitis, which he believes 
was incurred in service.  

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by service.  
38 U.S.C.A. § 1110.

The chronicity provision of 38 C.F.R. § 3.303(b) is 
applicable where the evidence, regardless of its date, shows 
that the veteran had a chronic condition in service or during 
an applicable presumptive period and still has such 
condition.  Such evidence must be medical unless it relates 
to a condition as to which, under the Court's case law, lay 
observation is competent.  Savage v. Gober, 10 Vet. App. 488, 
498 (1997).  In addition, if a condition noted during service 
is not shown to be chronic, then generally a showing of 
continuity of symptomatology after service is required for 
service connection.  38 C.F.R. § 3.303(b).

Service connection may 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).

In order to establish entitlement to service connection for a 
claimed disorder, there must be (1) medical evidence of 
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 
current disability.  See Hickson v. West, 12 Vet. App. 247, 
253 (1999).

A disability which is proximately due to or the result of a 
service-connected disease or injury shall also be service 
connected.  38 C.F.R. § 3.310.  The Board also notes that 
secondary service connection on the basis of aggravation is 
permitted under 38 C.F.R. § 3.310, and compensation is 
payable for that degree of aggravation of a nonservice-
connected disability caused by a service-connected 
disability.  Allen v. Brown, 7 Vet. App. 439 (1995).

Effective October 10, 2006, 38 C.F.R. § 3.310 was amended to 
implement the holding in Allen v. Brown, 7 Vet. App. 439 
(1995) for secondary service connection on the basis of the 
aggravation of a nonservice-connected disorder by service-
connected disability.  See 71 Fed. Reg. 52744 (2006).  The 
amendment sets forth language that requires that a baseline 
level of severity of the nonservice-connected disease or 
injury must be established by medical evidence created before 
the onset of aggravation.

In order for service connection to be granted on a secondary 
basis, three elements must be present: a current disability, 
a service-connected disability, and a medical nexus between 
the veteran's service-connected disability and the veteran's 
non-service connected disability.  See 38 C.F.R. § 3.310(a) 
(2007).

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 veteran.  See 
38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  In Gilbert v. 
Derwinski, 1 Vet. App. 49, 53 (1990), it was observed that 
"a veteran need only demonstrate that there is an 
'approximate balance of positive and negative evidence' in 
order to prevail."  To deny a claim on its merits, the 
preponderance of the evidence must be against the claim.  
Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing 
Gilbert, 1 Vet. App. at 54.




Analysis

Low Back Disability

The veteran has claimed service connection for his low back 
disability.  

A VA examination shows a current disability of his lower 
back.  

On entry into service in May 1970, the veteran's spine and 
other musculoskeletal was noted to be normal.  Although 
during service the veteran reported back pain in service for 
"several years," dating to a fall during gymnastics, he 
indicated at his hearing that he did not recall making this 
statement while receiving treatment in service, and also 
indicated that he never injured his back during gymnastics.  
In any event, the Board notes that the veteran's statement 
alone, does not constitute "clear and unmistakable 
evidence" that the veteran had an injury to his back on 
entry into service.  Thus, the presumption of soundness set 
forth in 38 U.S.C.A. § 1111 (West 2002) has not been 
rebutted.  The service medical records also reflect that the 
veteran received treatment for low back pain on two occasions 
in 1970.  On separation examination in November 1971, 
however, the spine was noted to be normal.  It is also noted 
that the veteran was a parachutist, and he indicated at his 
hearing that he sustained an injury to his back during a 
jump.  

The critical question with regard to this matter is whether 
the veteran's current low back disability is related to his 
service.  In this regard, there is no documentation of any 
treatment for the veteran's back disability from the 
veteran's injury in service to the present.  This period 
without treatment is evidence that the veteran's lower back 
condition is not related to service and that there has not 
been a continuity of symptomatology since service.  A 
prolonged period without treatment or complaint is a factor 
that weighs against the veteran's claim.  See Maxson v. 
Gober, 230 F.3d 1330 (Fed. Cir. 2000).

A VA examination was provided in March 2007.  The examiner 
noted that the record was devoid of any treatment for low 
back problems since separation from service.  The examiner 
expressed skepticism regarding the veteran's description of 
his disability.  Specifically, the examiner noted that 
although the veteran claimed to have difficulty with hip 
flexion and extension while seated, while testing for reverse 
Lasegues, the veteran was able to readily extend his hip 
voluntarily past 30 degrees without prompting.  Regardless, 
the examiner determined that the veteran's lower back 
disability was solely due to aging changes and did not 
indicate that it was due to service.  

Given the aforementioned, the evidence does not show that the 
veteran's low back disorder had its onset in service, 
continued in symptomatology since service, or is in any way 
related to service.  While the veteran is competent to 
discuss his pain or other symptoms capable of lay 
observation, the veteran is not competent to attribute his 
current low back condition to his service, as that would 
require medical expertise.  Beausoleil v. Brown, 8 Vet. App. 
459, 464 (1996); see Espiritu v. Derwinski, 2 Vet. App. 492, 
494 (1992).  Thus, the evidence weighs against his claim in 
this regard as well.

As such, a preponderance of the evidence is against the 
veteran's claim of entitlement to service connection for his 
low back condition, and there is no doubt to be resolved.  
See Gilbert.

Headaches

Here, the veteran contends that his headaches are a result of 
his service.  In this regard, the veteran has indicated that 
he believes this to be, in part, due to the sinusitis that he 
incurred in service.

There is minimal evidence to indicate that the veteran's 
headaches had their onset in service.  In April 1971, the 
veteran reported frontal headaches one to two times per week 
and an impression of possible migraines was noted.  However, 
on separation examination in November 1971, the veteran's 
head, face, and scalp were noted to be normal.  

Thereafter, many years after service, VA medical records 
indicate that in August 2004, the veteran reported receiving 
treatment for a head injury incurred in 1972.  The veteran 
indicated that he sustained a head injury, causing him to 
lose the outer field of vision in both of his eyes.  As 
indicated above, the service medical records do not 
substantiate the veteran's assertions.

Further, on VA examination in March 2007, the examiner 
indicated that there was insufficient evidence to speculate 
that there is a chronic headache condition beyond that 
experienced by someone with rhinitis.  The examiner noted 
that there was significant Waddell's regarding history 
presented, physical exam, and radiological findings.  

In this case, the competent and credible evidence does not 
show that the veteran incurred a chronic headache disability 
in service, continuity of symptomatology since service, or 
that his current headaches are in any way related to service.  
The veteran also contends that his headaches are due to his 
sinusitis.  Because service connection is being denied for 
the veteran's sinusitis, it follows that, as a matter of law, 
service connection cannot be granted for the veteran's 
headaches.  

While the veteran is competent to discuss his pain or other 
symptoms capable of lay observation, the veteran is not 
competent to attribute his current headaches to his service, 
as that would require medical expertise.  Beausoleil v. 
Brown, 8 Vet. App. 459, 464 (1996); see Espiritu v. 
Derwinski, 2 Vet. App. 492, 494 (1992).  

As such, a preponderance of the evidence is against the 
veteran's claim of entitlement to service connection for his 
headaches, and there is no doubt to be resolved.  See 
Gilbert.

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) imposes 
obligations on VA in terms of its duty to notify and assist 
claimants.  When VA receives a complete or substantially 
complete application for benefits, it is required to notify 
the claimant and the representative, if any, of any 
information and medical or lay evidence that is necessary to 
substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. 
§ 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 
(2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 
(2004), the United States Court of Appeals for Veterans 
Claims held that VA must inform the claimant of any 
information and evidence not of record (1) that is necessary 
to substantiate the claim; (2) that VA will seek to provide; 
and (3) that the claimant is expected to provide; and that 
(4) VA will request that the claimant provide any evidence in 
his possession that pertains to the claim.  

The VCAA notice requirements apply to all five elements of a 
service connection claim:  (1) veteran status; (2) existence 
of disability; (3) connection between service and the 
disability; (4) degree of disability; and (5) effective date 
of benefits where a claim is granted.  Dingess v. Nicholson, 
19 Vet. App. 473, 484 (2006).  

The Board concludes that the veteran has been afforded proper 
notice under the VCAA.  The RO provided a VCAA notice letter 
to the veteran in June 2003, prior to the initial 
adjudication of his claims in February 2004.  The VCAA letter 
notified the veteran of VA's and of his responsibilities with 
relevance to his claims.  The letter informed the veteran 
that he should submit any information that would support his 
claims.  Further, in September 2006, after a remand, the 
Appeals Management Center sent the veteran an additional VCAA 
notice letter.  This letter discussed, in further detail, the 
requirements for proving the veteran's claims for service 
connection.  The veteran's claims were subsequently 
readjudicated in a May 2007 supplemental statement of the 
case (SSOC).  See Prickett v. Nicholson, 20 Vet. App. 370 
(2006) (the issuance of a fully compliant VCAA notification 
followed by readjudication of the claim, such as a statement 
of the case (SOC) or supplemental statement of the case 
(SSOC), is sufficient to cure a timing defect).  The Board 
finds that VA has satisfied the four elements of Pelegrini, 
supra.

To whatever extent the decision of the Court in Dingess v. 
Nicholson, supra, requires more extensive notice in claims 
for compensation, e.g., as to potential downstream issues 
such as disability rating and effective date, the Board finds 
no prejudice to the veteran in proceeding with the present 
decision.  The appellant was sent a letter compliant with 
Dingess in September 2006, the veteran's claims were 
subsequently readjudicated in a May 2007 supplemental 
statement of the case.  See Prickett v. Nicholson, 20 Vet. 
App. 370 (2006).  The appellant has not been prejudiced.  The 
record establishes that the appellant has been afforded a 
meaningful opportunity to participate in the adjudication of 
his claims.

Kent v. Nicholson, 20 Vet. App. 1 (2006), established new 
requirements regarding the VCAA notice and reopening claims.  
The Court held that the VCAA notice must include the bases 
for the denial in the prior decision and VA must respond with 
a notice letter that describes what evidence would be 
necessary to substantiate that element or elements required 
to establish service connection that were found insufficient 
in the previous denial.  Id.  Therefore, the question of what 
constitutes material evidence to reopen a claim for service 
connection depends on the basis on which the prior claim was 
denied.  See Evans v. Brown, 9 Vet. App. 273, 283 (1996) 
(holding evidence is material if it is relevant to and 
probative of an issue that was a specified basis for the last 
final disallowance).  VA has adequately advised the veteran 
of the basis of the previous denial.  The September 2006 
letter clearly explained what new and material evidence was.  
Regarding the veteran's sinusitis, the letter explained that 
the veteran would have to submit evidence proving that he 
would have to submit evidence proving a nexus between his 
disorder and service.  Regarding the veteran's penile 
disorder, the letter explained that the veteran must submit 
evidence showing that he has a residual disability due to the 
frenulectomy in service.  Finally, regarding the veteran's 
hemorrhoids, the letter indicated that the veteran must 
submit evidence indicating that there was treatment for 
hemorrhoids during active duty, a link between the veteran's 
hemorrhoidectomy in April 1972 and his service, and current 
treatment for hemorrhoids.  Although this letter was provided 
to the veteran after the initial adjudication of his claim, 
the veteran has not been prejudiced, as his claim was 
subsequently readjudicated in a May 2007 SSOC.  See Prickett.  

Regarding the veteran's claims for service connection for his 
sinusitis, residuals of penile surgery, and hemorrhoids, VA 
has not provided the veteran with an examination in 
connection with his claims; however, the Board finds that VA 
was not under an obligation to have the veteran examined.  
The veteran has not brought forth new and material evidence 
to reopen the matters.  38 C.F.R. § 3.159(c)(4)(iii) states 
that paragraph (c)(4) applies to a claim to reopen a finally 
adjudicated claim only if new and material evidence is 
presented or secured.  For these reasons, the Board finds 
that VA was not under an obligation to provide an examination 
in connection with his claims.

With regard to the veteran's headaches and low back 
condition, a VA examination was provided in March 2007.  This 
examination satisfied the requirements of 38 C.F.R. § 3.159.  
In connection with the current appeal, VA has received the 
veteran's service medical records, private medical records, 
and VA treatment records.

For the foregoing reasons, the Board concludes that all 
reasonable efforts were made by VA to obtain evidence 
necessary to substantiate the claims.  The evidence of record 
provides sufficient information to adequately evaluate the 
claims, and the Board is not aware of the existence of any 
additional relevant evidence which has not been obtained.  
Therefore, no further assistance to the veteran with the 
development of evidence is required.  38 U.S.C.A. § 
5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 
19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 
1328 (Fed. Cir. 2006).





ORDER

New and material evidence not having been received, the 
application to reopen the claim of entitlement to service 
connection for sinusitis is denied.

New and material evidence not having been received, the 
application to reopen the claim of entitlement to service 
connection for residuals of penile surgery is denied.

New and material evidence not having been received, the 
application to reopen the claim of entitlement to service 
connection for hemorrhoids is denied.

Entitlement to service connection for a low back condition is 
denied.

Entitlement to service connection for headaches, including as 
secondary to sinusitis, is denied.



____________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs