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