Citation Nr: 1317937 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 10-09 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for residuals of a circumcision. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active military service from September 1972 to November 1976. This appeal to the Board of Veterans' Appeals (Board/BVA) is from September and December 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Because the claim requires further development before being decided on appeal, the Board is remanding the claim to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Although the Board sincerely regrets the additional delay that inevitably will result from remanding this claim, it is necessary to ensure there is a complete record upon which to decide this claim so the Veteran is afforded every possible consideration. VA has a duty to make reasonable efforts to assist him in obtaining evidence necessary to substantiate this claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). He alleges he had a circumcision during service sometime between 1973 and 1974 during his first deployment to Puerto Rico with NMCB-10, and that he has residuals of that surgical procedure even now. See his March 2010 Substantive Appeal to the Board on VA Form 9. He filed this claim in August 2007. The RO initially denied this claim in September 2008, acknowledging his service treatment records (STRs) were incomplete, but indicating those available did not show evidence of any complaints or treatment for a circumcision during his military service. And while post-service private medical records from Dr. M. B. showed complaints of excessive urination and burning and itching in and around the foreskin of the penis, these complaints were well over two decades (i.e., more than 20 years) after leaving military service with no evidence of a link or relationship to his military service. Attempts to obtain his private medical records from Ventura County Medical Center had been unsuccessful, and he had been appropriately notified, including that it was his ultimate responsibility to see that VA received these records. See 38 C.F.R. § 3.159(c)(1) and (e)(1). He also had been given opportunity to supplement the file with medical evidence showing a current disability on account of his claimed circumcision with a link or relationship to his military service. 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 RO continued to deny the claim in a subsequent December 2008 decision, essentially for the same reasons and bases, again acknowledging the STRs were incomplete but also reaffirming that, of those available, none showed evidence of any complaints or treatment for a circumcision during his military service. And although records since had been obtained from Ventura County Medical Center, they did not show any evidence of a diagnosis for this claimed condition with a link or relationship to his military service. Nor had he, himself, provided the RO with the medical evidence needed to establish this claimed cause-and-effect correlation. Both decisions apprised him that, if the remainder of his STRs were located at a later date, the decision would be reconsidered. And if a different decision results, that decision will be effective as of the date of this pending claim. See 38 C.F.R. § 3.156(c) (2012). In point of fact, however, the STRs only consist of the report of his June 1972 military enlistment examination, so only concern the status of his health when entering service, not at the time of or even subsequent to his claimed circumcision in service, which, again, he says occurred sometime during 1973 or 1974. And, to reiterate, the RO partly relied on the absence of any STRs showing a circumcision during his service as a basis of its denial of his claim. Where, as here, service records have been lost or destroyed through no fault of the Veteran, the Court has held that there is a heightened obligation on the part of VA to explain its findings and conclusions and to carefully consider the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). To this end, VA also must inform him that he can submit evidence from "alternative sources" in place of, so as a means of compensating for, his missing STRs. See Washington v. Nicholson, 19 Vet. App. 362, 369-370 (2005); see also Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iii, Chapter 2, Section E, Topic 27, outlines the procedures that are to be followed in obtaining STRs from "alternative sources." Examples of such alternate evidence include the VA military files; statements from service medical personnel; 'buddy' certificates or affidavits; state or local accident and police reports; employment physical examination reports; medical evidence from civilian/private hospitals, clinics, and physicians where or by whom a Veteran was treated, either during service or shortly after separation; letters written during service; photographs taken during service; pharmacy prescription records; and/or insurance examinations reports. See VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iii, Chapter 2, Section E, Topic 27, Block b. See also Having said all of that, however, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the Court declined to apply an "adverse presumption" where records had been lost or destroyed while in Government control that would have required VA to disprove the claimant's allegation of injury or disease in service because bad faith or negligent destruction of the documents had not been shown). Moreover, the case law does not lower the legal standard for proving a claim for service connection in this circumstance; that is, there is no reverse presumption requiring the granting of the claim; instead, this merely increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the claim. Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). So missing records concerning a Veteran's military service, while indeed unfortunate, do not, alone, obviate the need to still have medical nexus evidence supporting the claim by suggesting a correlation between the condition claimed and his military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare at 367). Here, though, more fundamentally, the RO failed to notify the Veteran that his STRs are unavailable. Nor did the RO inform him that alternate sources of evidence may be used to substantiate his claim. As such, this claim must be remanded to provide him this necessary procedural due process notice. Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Send the Veteran a Veterans Claims Assistance Act (VCAA) letter notifying him and his representative of the information or lay or medical evidence not previously provided that is necessary to substantiate this claim of entitlement to service connection for residuals of a circumcision. This letter must inform the Veteran that he may submit "alternative sources" of evidence in place of his missing STRs, so as a means of compensating for their absence. This letter must also specifically advise him that examples of such alternate evidence include VA military files; statements from service medical personnel; 'buddy' certificates or affidavits; state or local accident and police reports; employment physical examination reports; medical evidence from civilian/private hospitals, clinics, and physicians where or by whom he was treated, either during service or shortly after separation; letters written during service; photographs taken during service; pharmacy prescription records; and/or insurance examinations reports. 2. Then take any additional actions deemed appropriate to try and verify the Veteran's assertion that he was circumcised while in service. All efforts made to locate these corroborating records should be documented in the claims file and the Veteran appropriately notified. 3. If the above-requested development reveals evidence confirming the circumcision in service, or at the very least making this proposition as likely as not, schedule a VA compensation examination to first identify or ascertain all current penile disorders since the filing of this claim in August 2007, even if now resolved, and for comment on the etiology this current disability, especially in terms of the likelihood (very likely, as likely as not, or unlikely) this present disability is related or attributable to the Veteran's military service or dates back to his service - and, in particular, to his alleged circumcision. He is hereby advised that failure to report for this scheduled VA examination, without good cause, may have adverse consequences on this pending claim as it will require deciding this claim on the existing evidence of record. 38 C.F.R. § 3.655 (2012). The examination should include all necessary diagnostic testing or evaluation. It is imperative that the designated VA examiner review the claims file, including a complete copy of this remand, for the pertinent medical and other history. But it is most important the examiner discuss the underlying medical rationale for the opinion, whether favorable or unfavorable, if necessary citing to specific evidence in the file supporting conclusions. If the examiner is unable to provide this requested opinion without resorting to mere speculation, then he or she is asked to discuss why a response is not possible, such as by clarifying whether additional information or other procurable data is needed, there are multiple possible etiologies with none more prevalent than another and the limits of medical knowledge have been exhaustive, or whatever may be the case. So merely saying he or she cannot respond will not suffice. 4. Then readjudicate this claim in light of this and all other additional evidence. If this claim remains denied, provide the Veteran a Supplemental Statement of the Case and give him time to respond to it before returning the file to the Board for further appellate consideration of this claim. He has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).