Citation Nr: 1611885 Decision Date: 03/24/16 Archive Date: 03/29/16 DOCKET NO. 11-26 565A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for sinusitis. 2. Entitlement to service connection for skin cancer, to include as due to sun exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. R. Fletcher INTRODUCTION The Veteran served on active duty from September 1958 to August 1962. The case is before the Board of Veterans' Appeals (Board) on appeal from November 2010 and June 2011 rating decisions of the Louisville Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a hearing before the Board; however, he cancelled this hearing (see March 2013 Informal Hearing Presentation) and the record does not indicate any outstanding requests for a hearing. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA (VVA) electronic claims processing systems. Virtual VA contains additional VA treatment records and other documents irrelevant to the claims on appeal or duplicative of what is in VBMS. Any future consideration of this appellant's claim should take into consideration the existence of the electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to service connection for skin cancer is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action on his part is required. FINDING OF FACT The evidence of record does not demonstrate sinusitis. CONCLUSION OF LAW The criteria for service connection for sinusitis have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Assist and Notify VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). Upon receipt of a substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information and evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). For service-connection claims, this notice must address the downstream elements of disability rating and effective date. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For the issue of entitlement to service connection for sinusitis decided herein, VA's duty to notify was satisfied by letters sent to the Veteran in June and September 2010, prior to the initial adjudication of the claim in November 2010. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO has obtained the Veteran's service treatment records (STRs) and all identified post-service private treatment records. No VA medical examination has been provided to the Veteran, and no VA medical opinion has been obtained. VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). As noted below, the competent evidence of record does not show that the Veteran currently has sinusitis and the evidence does not establish an injury, disease, or event during service, as is required for an examination or opinion. Accordingly, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In sum, there is no evidence of VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159. II. Service Connection for Sinusitis In May 2010, VA received the Veteran's claim of entitlement to compensation for sinusitis. He has stated that during his military service he suffered many sinus headaches and many "mucous coughs" but did not seek treatment other than APCs to relieve the pain. See October 2011 VA Form 9. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). 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. § 3.309(d). "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A "veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 Fed. Cir. 2000). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. (1990). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. STRs are negative for findings related to sinusitis. The Veteran's service entrance examination noted normal evaluation of the sinuses. In the accompanying report of medical history, the Veteran denied sinusitis. An August 1962 separation report of examination notes that clinical evaluation of the sinuses was normal. Review of the post-service medical records fails to shows a diagnosis of sinusitis. Furthermore, the records contain no reports of any sinusitis-related symptoms. The Veteran has submitted several statements report he has constant sinusitis and reporting sinus headaches during service. The Board finds that service connection for sinusitis is not warranted. This is because there is no current disability. The medical evidence of record contains no such diagnosis or symptoms at any point during the appeal period. See Brammer, 3 Vet. App. at 225; McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran has provided statements that he has sinusitis; he has not provided provided reports of sinus symptoms other than during service. However, although the Veteran is competent to report sinus symptoms, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), a diagnosis of sinusitis falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Sinusitis is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as medical examination and testing are needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Moreover, the Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise related to sinusitis. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, this lay evidence does not constitute competent or credible evidence and lacks probative value. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for sinusitis, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for sinusitis is denied. REMAND The Veteran maintains that he currently has skin cancer related to service, to include claimed extensive exposure to the sun while serving on ships. See January 2013 VA Form 9. Although the Veteran underwent a VA examination in April 2011, the Board finds that the examiner's opinion is inadequate for adjudication purposes, as it does not contain sufficient detail to decide the claim. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Specifically, the April 2011 VA examination reports notes the Veteran's history of skin cancer, which the examiner opined is not secondary to his exposure to toxic water at Camp Lejeune. The examiner further noted that skin cancer is generally caused by sun exposure. The examiner did not offer an opinion as to whether this disability was incurred as a result of the Veteran's sun exposure in service (as distinguished from any post-service sun exposure). Additionally, since that time, an April 2013 private opinion was submitted. Although it provided a positive nexus opinion, it did not distinguish between in-service sun exposure and post-service sun exposure or comment on the 2011 VA examiner's opinion. On remand, an addendum medical opinion should be obtained. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Return the Veteran's claims file to the VA examiner who provided the April 2011 opinion for an addendum opinion. If that examiner is not available, any VA examiner with the appropriate expertise can provide the opinion. The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. An explanation for all opinions expressed must be provided. The examiner must provide an opinion, in light of prior examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that the skin cancer (or residuals thereof) is related to any incident of the Veteran's period of active military service (as distinguished from any post-service incident), to include any sun exposure therein? The examiner must address the April 2013 private medical opinion. Rationale for all requested opinions shall be provided. If an opinion cannot be provided without resorting to mere speculation, a complete explanation stating why this is so must be provided. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. Review the opinion report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See 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 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 2014). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs