Citation Nr: 1301022	
Decision Date: 01/10/13    Archive Date: 01/16/13

DOCKET NO.  11-25 903	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Entitlement to service connection for a cervical spine (neck) disorder.

2.  Entitlement to service connection for sinusitis.

3.  Entitlement to service connection for a deviated septum.


REPRESENTATION

Appellant represented by:	Colorado Division of Veterans Affairs


ATTORNEY FOR THE BOARD

H. Bunker, Associate Counsel



INTRODUCTION

The Veteran served on active duty from November 1952 to January 1956.

This appeal to the Board of Veterans' Appeals (Board) is from an August 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran's September 2011 Substantive Appeal (on VA Form 9) included a request for a videoconference hearing.  The RO sent him a letter in October 2012 indicating his hearing was scheduled for November 8, 2012, but he canceled it.  See 38 C.F.R. §§ 20.700(e), 20.704(e) (2012).  So the Board is proceeding with the adjudication of his claims.

In December 2012 the Board advanced his appeal on the docket because of his age, pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The Veteran's cervical spine (neck) disorder, sinusitis, and deviated septum are not shown to be due to any event or incident of his military service, including especially trauma to his nose.


CONCLUSION OF LAW

These claimed disorders are not due to disease or injury incurred in or aggravated by his military service.  38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

In deciding these claims, the Board has reviewed all of the evidence in the claims file.  Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The Veteran must not assume the Board has overlooked pieces of evidence not explicitly discussed.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to him).

It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, this doubt will be resolved in favor of the claimant.  By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists that does not satisfactorily prove or disprove the claim.  Reasonable doubt is a substantial doubt and one within the range of probability, as distinguished from pure speculation or remote possibility.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duties to notify and assist claimants in substantiating claims for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).

These notice requirements were met in this case by way of a letter sent to the Veteran in May 2010.  The letter advised him of the information and evidence necessary to substantiate his claims and of his and VA's respective obligations in obtaining this supporting evidence.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b).  The letter also advised him of how "downstream" disability ratings and effective dates are determined.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).

Moreover, the RO provided him that letter before initially adjudicating his claims in the August 2010 decision at issue in this appeal, so in the preferred sequence.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  And even had the RO not provided the letter before initially adjudicating the claim, the RO would have only needed to provide all necessary notice and then readjudicate the claim, including in a statement of the case (SOC) or supplemental SOC (SSOC) to rectify, i.e., "cure" the timing defect in the provision of the notice.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of not only establishing there is a VCAA notice error but, above and beyond that, showing how the error is unduly prejudicial, meaning outcome determinative of the claim.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

And as concerning the duty to assist, his service treatment records (STRs) and 
post-service VA treatment records are in the file.  VA also has obtained private treatment records and associated them with the file.  The RO attempted to obtain clinical records dated from January to December 1955 from the Yokohama Air Station regarding an injury the Veteran claims to have sustained during his military service.  But a July 2011 response from the National Personnel Records Center (NPRC), which is a military records repository, indicated all records from 1955 from Atsugi/Yokohama had been disposed of, so are no longer available.  The Veteran accordingly was notified of this in August 2011 and informed he could provide other records tending to support his claims.  See 38 C.F.R. § 3.159(c)(2) and (e)(1).  In response, he provided photographs of a helicopter supposedly involved in his injury and a personal statement.  The Board therefore finds that the duty to assist him in obtaining records supportive of his claims has been satisfied to the extent possible, such that no further development of his claims is required.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim.  The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease" or a disease manifested in accordance with presumptive service connection regulations tending to support incurrence or aggravation, (3) an indication that the current disability may be related to the 
in-service event, injury or disease, but (4) insufficient evidence to decide the claim.

A VA examination was not provided in response to these claims, but none was warranted.  See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  There is no competent and credible evidence suggesting the Veteran's cervical spine disorder, sinusitis, and deviated septum originated during his military service or are otherwise related or attributable to his service; instead, there are only his unsubstantiated lay allegations of this cause-and-effect correlation.  And VA is not required to schedule an examination for a medical nexus opinion in this circumstance merely as a matter of course.  See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (the Veteran's conclusory lay statement is insufficient to trigger VA's duty to provide an examination with an opinion).  This is especially true since the conditions at issue are not the type of "simple" conditions that are readily amenable to mere lay diagnosis or probative comment regarding their etiologies.  In Waters, the Federal Circuit Court concluded a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to obtain a medical opinion on the issue since all Veterans could make such a statement and since such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide examinations merely as a matter of course in virtually every disability case.  See also Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (indicating that, generally, VA is not obligated to provide an examination for a medical nexus opinion based on unsubstantiated lay statements alone); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge).


The Board therefore is satisfied that all relevant facts have been properly developed to the extent possible, and that no further assistance to the Veteran in developing the facts pertinent to his claims is required to comply with the duty to assist.  38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159.

Service Connection

Service connection is granted if it is shown the Veteran has disability resulting from an injury sustained or a disease contracted in the line of duty during his active military service or for aggravation during service of a pre-existing condition beyond its natural progression.  38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306.

Stated somewhat differently, to establish entitlement to direct service connection, there must be:  (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated in service.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).

The mere fact that an injury or disease occurred in service is not enough; there must be chronic (meaning permanent) disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, or if this is legitimately questionable, then a showing of continuity of symptomatology after service is required to support a finding of chronicity and the claim.  38 C.F.R. § 3.303(b).  Establishing continuity of symptomatology under § 3.303(b)  is an alternative method of satisfying the second and third Shedden requirements to establish chronicity of disease or injury in service and, in turn, link the currently claimed disability to service.  See also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  That is, these second and third elements can be satisfied under § 3.303(b) 

by competent and credible evidence demonstrating:  (1) the condition was noted during service, (2) symptoms of that condition continued after service, and (3) the current condition is related to those continuing symptoms.  See Savage v. Gober, 10 Vet. App. 488, 494-97 (1997).

To establish a showing of chronic disease in service, or within a presumptive period per § 3.307, a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic," is required.  38 C.F.R. § 3.303(b).  Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  Id.

In-service notation of a condition does not require medical evidence where "the condition is of a type as to which a lay person's observation is competent."  Savage, 10 Vet. App. at 497.  However, although prong (3) does not require medical nexus evidence, "because it would not necessarily follow that there is a relationship between any present disability and the continuity of symptomatology demonstrated, medical evidence is required to demonstrate such a relationship unless such a relationship is one as to which a lay person's observation is competent."  Id (citations omitted).

A layperson is generally incapable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998).  However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  See also 38 C.F.R. § 3.159(a)(2).  A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation).  Savage, 10 Vet. App. 488, 494-97.  When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007).

So medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence" such as actual treatment records).  But see, too, Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (indicating that, for non-combat Veterans providing non-medical related testimony regarding an event during service (or when the incident in question is not claimed to have occurred in combat), Buchanan is distinguishable; the lack of documentation in service records must be weighed against the Veteran's statements).


The Veteran is competent to report on things he can observe and feel through his senses.  See Layno.  He is competent to report what occurred during his service because his firsthand knowledge of a factual matter is competent.  See Washington v. Nicholson, 19 Vet. App. 363 (2005).  When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

"Symptoms, not treatment [for them], are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Once evidence is determined to be competent, however, the Board must determine whether the evidence also is credible, as only then does it ultimately have probative value.  See Layno (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("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) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). 

Disorders diagnosed after discharge may be service connected if the evidence, including that pertinent to service, establishes the disorders were incurred in service.  38 C.F.R. § 3.303(d).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  To this end, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id., at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

The determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment.  38 C.F.R. § 3.304(b).  A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows the increase in disability is due to the natural progression of the disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306.


In order to rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.  See Wagner v. Principi, 370 F 3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003).  The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches.  Id.  The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progression of the preexisting condition.  38 U.S.C. § 1153; 38 C.F.R. § 3.306; Wagner, supra.  If this burden is met, then the Veteran is not entitled to service-connected benefits.  Wagner at 1096.

The Veteran contends that his cervical spine (neck) disorder, sinusitis, and deviated septum are all the result of a helicopter accident during his service when he was injured.

When completing a medical history questionnaire during an examination in October 1952 for entrance into service, he reported that he had a history of sinusitis.  There were no sinus or spine-related problems reported or observed by the examiner during the objective clinical portion of that enlistment examination, however.  The examiner found the Veteran medically qualified for entrance into service.  Thus, it is presumed he was in sound physical health when beginning his service the following month, in November 1952.

He reported to sick call multiple times while in service, but he never complained of sinus or cervical spine-related issues or symptoms, including as a residual of trauma or any type of injury.  For instance, in July 1953 he was seen for X-rays of his right wrist after falling on it.  In an October 1953 treatment record he was seen for a sore back.  In February 1954 he requested glasses.  In February 1955 he reported pain in his upper back.  There was no diagnosis given and no further complaints or treatment for upper back pain.  In October 1955 he was seen for a boil on his leg.  According to a November 1955 treatment record he was seen for complaints of swelling of the right side of his face.  So on those several instances when availing himself to treatment, there was never mention of a relevant injury or ailment.

Moreover, during his military separation examination the examiner found no defects of the Veteran's sinuses or cervical spine.  He therefore was found qualified for separation from service.  His service ended in January 1956.

Although he had entered service with an admitted history of sinusitis, that mere notation of a prior medical history of this condition during his military enlistment examination was not tantamount to concluding he had pre-existing disability.  This is especially true since, on objective physical examination, his respiratory evaluation was grossly normal.  The Court has held that the regulation provides expressly that the term "noted" denotes only such conditions as are recorded in examination reports, and that a mere history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions.  38 C.F.R. § 3.304(b)(1); Crowe v. Brown, 7 Vet. App. 238 (1994).

But even accepting that for all intents and purposes the Veteran did not have sinusitis or other relevant disability when entering service, there is no suggestion his now claimed cervical spine (neck) disorder, sinusitis, and deviated septum are the result of his service.  And it is not enough merely to show he has these claimed conditions as there also must be attribution of them to his military service, and there is not this required linkage.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").

The first post-service evidence of a cervical spine disorder comes from a November 1999 private treatment record noting he had cervical disc disease.  The first reference to sinusitis and a deviated septum is from a September 1989 private treatment record noting he had undergone surgery to correct his deviated nasal septum.  The Board may consider the absence of any indication of a relevant 

medical complaint until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following the conclusion of his service during which there was no clinical documentation of the claimed disorder).  Moreover, the notion of continuity of symptomatology found in 38 C.F.R. § 3.303(b), as concerning what may have occurred during those many intervening years after the conclusion of his service and the initial indications of these now claimed conditions, only applies when the conditions now claimed were "noted" in service, and these at issue were not.

In a private treatment record from August 1989 it was noted the Veteran had a narrowed septum and in September 1989 he underwent surgery for it.  The surgery notes from September 1989 also showed he had sinusitis.  In a June 1990 private treatment record he reported he had had a good winter with no sinusitis.  In a January 1994 private treatment record he reported having a nosebleed that had existed for a few days.  He did not report cervical spine problems during that time period.

In a November 1999 private treatment record he was diagnosed with cervical disc disease.  See also June 2000 private treatment record.  An October 2000 private treatment record noted his then recent Magnetic Resonance Imaging (MRI) showed a spondylitic bar that could have been causing his headaches.  In a private treatment record from May 2001 he reported having cervical spasms and the examiner noted significant pain and tenderness across the neck and shoulders.  In a March 2001 private treatment record the Veteran's physician ordered further testing to rule out sinusitis.


In a November 2010 VA treatment record the Veteran stated that he had been suffering from neck pain for the past 50+ years, so seemingly dating back to or around the time he was in the service.  A VA treatment record noted cervical spine X-rays showed moderate cervical spondylosis without evidence of an acute bony abnormality.  See December 2010 VA treatment record.  In March 2011 a VA treatment record noted his past medical history included cervical spondylosis without myelopathy.  A September 2011 MRI of his cervical spine showed 
multi-level spondylitic changes, as well as neural foraminal narrowing.

In August 2011 he provided a statement to the effect that, in May 1955, he was involved in a helicopter accident in Yokohama, Japan.  He stated that when the helicopter flipped over he was hit in the face with his camera, which caused his nose to start bleeding.  He also stated that he could not move his head because his neck hurt so much.  He stated that he was told to return for medical evaluation the next day, but felt that his condition had improved so he did not return to sick call.  He also provided pictures of the helicopter from service in 1955.  He stated that his cervical spine and sinus problems began following that accident in service and had persisted during the many years since.

Given the records of his evaluation and treatment since service, particularly during the last several years, there is no disputing he has a cervical spine (neck) disorder, sinusitis, and deviated nasal septum (that is, to the extent the latter was not corrected by his surgery).  However, these diagnoses were all made over 30 years after he separated from service, and there is only his unsubstantiated history of these conditions dating back to his service to the helicopter accident in question.  There is no competent and credible suggestion of continuous symptoms since service up to the time of those initial diagnoses and, to reiterate, this notion of continuity of symptomatology is in any event inapplicable in this particular instance inasmuch as these conditions now claimed were not "noted" during his service, except for, as mentioned, the prior history of sinusitis he gave when entering service.


Although Board must consider his lay statements regarding the claimed history of these conditions, it may consider whether self-interest may be a factor in making such statements.  Pond v. West, 12 Vet. App. 341 (1999).  The Board finds most probative the numerous instances during his service, and during the many years since leading up to the initial diagnoses of these claimed disabilities, when he did not mention them at all - such as in the way of a relevant subjective complaint, much less the fact that there was no objective clinical finding or observation of them.  See Struck v. Brown, 9 Vet. App. 145 (1996) (discussing how contemporaneous medical findings may be given more probative weight than contrary evidence offered years later, long after the fact); Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later).  Indeed, lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care.  Rucker v. Brown, 10 Vet. App. 67, 73 (1997).

That said, as already alluded to, according to the holding in Kahana and several of the other cases cited, the Board cannot summarily reject his lay testimony out of hand.  See also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence).  Ultimately, though, the Board must consider all of the evidence relevant to the claims, including the availability of medical records, the nature and course of the diseases or disabilities, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  

Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).

For these reasons and bases, the Board finds that the preponderance of the evidence is against these claims of entitlement to service connection for a cervical spine (neck) disorder, sinusitis, and deviated septum.  Accordingly, the benefit-of-the-doubt rule does not apply, and these claims resultantly must be denied.  See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).


ORDER

The claims of entitlement to service connection for a cervical spine disorder, sinusitis, and deviated nasal septum are denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs