Citation Nr: 1617486 Decision Date: 05/02/16 Archive Date: 05/13/16 DOCKET NO. 06-10 213 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a sinus condition. 2. Entitlement to service connection for hemorrhoids. REPRESENTATION Appellant represented by: Joe Romo, Jr., Agent ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran has submitted a good deal of documentation and correspondence in April 2016, which does not relate in pertinent part to the issues on appeal. Therefore, the Board does not have jurisdiction over it. The documentation is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The issue of entitlement to service connection for hemorrhoids addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The more probative evidence fails to demonstrate that the Veteran has a sinus condition that is related to his active duty service. CONCLUSION OF LAW The criteria for the establishment of service connection for a sinus condition are not met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.385 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Assist and Notify VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2015). After the claim was received, the RO advised the claimant of the elements of service connection and informed him of his and VA's respective responsibilities for obtaining relevant records and other evidence in support of his claim. The duty to notify is satisfied. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman, 19 Vet. App. 473 (2006). VA's duty to assist under the VCAA includes helping claimants to obtain service treatment records and other pertinent records, including private medical records. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, private treatment records, and VA medical records. The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c). VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this instance, no examination was provided with regard to the issue of a sinus condition. The Board finds that a VA examination was not necessary as the weight of the evidence that the Veteran suffered from a sinus condition in service or that he is currently being treated for or has suffered from symptoms of a chronic sinus condition does not rise to the level of equipoise. As such, the criteria required to necessitate providing an examination have not been met. Therefore, VA was not required to conduct an examination for a sinus condition. See 38 U.S.C.A. § 5103A(a)(2) (VA "is not required to provide assistance to a claimant... if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). All appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2015). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. Merits of the Claims The Veteran seeks service connection for a sinus condition which he believes is the result of his active duty service. Unfortunately, there is no competent, probative evidence providing a current diagnosis or linking his claimed sinus condition to military service and the claim will be denied. 38 C.F.R. § 3.102. Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. 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). In weighing lay evidence, the Board must render a finding with regard to both competency and credibility. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). On review of all evidence, both lay and medical, the Board finds that the Veteran has not met his evidentiary burden regarding service connection for a sinus condition. The probative evidence available in the current record reflects that the Veteran is not currently, or at any time during the appeal, being treated for any chronic sinus condition. To prevail on the issue of service connection, there must be competent evidence of a current disability. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (a "current disability" means a disability shown by competent evidence to exist at the time of the award of service connection); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (in the absence of proof of a present disability, there can be no valid claim for service connection as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability). Additionally, the Veteran's service treatment records are entirely negative for any sinus complaints, diagnoses, or treatment in service. Accordingly, the Board concludes that the evidence does not reach the level of equipoise that the Veteran had a chronic sinus condition associated with his active duty service. Although the Board is sympathetic to the Veteran, the Secretary is not obligated to grant a claim for benefits simply because there is no evidence disproving it. See 38 U.S.C.A. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits."); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA ... the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination); Fagan v. Shinseki, 573 F.3d 1282, 1286 (2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). Here, that evidentiary burden has not been met, either to obtain a VA medical examination or for the purpose of service connection. Moreover, the Veteran's essential contention of a nexus between his current disability and service has been fully investigated as mandated by the Court's decision in Jandreau. The weight of the evidence does not rise to the level of equipoise that the Veteran has a chronic sinus condition that is related to his active duty service. In this instance, the benefit of the doubt doctrine does not apply, and the claim for service connection for a sinus condition must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service Connection for a sinus condition is denied. REMAND The Veteran contends that he has hemorrhoids that are related to his active duty service. The Board notes that a July 1969 service treatment record reported that the Veteran had been diagnosed with hemorrhoids. A July 2007 VA treatment record noted that the Veteran's hemorrhoids were "ok" indicating that the Veteran had been diagnosed with hemorrhoids. As there is evidence of both an in-service diagnosis of hemorrhoids and evidence that the Veteran is currently diagnosed with hemorrhoids, the Board finds that a VA examination is necessary to determine if the Veteran's current hemorrhoids are related to the hemorrhoids that the Veteran had during his active duty service. VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Obtain any VA or private treatment records identified by the Veteran that have not been associated with the claims file. 2. Schedule the Veteran for a VA examination by an examiner with appropriate expertise. The purpose of the examination is to determine the etiology of the Veteran's diagnosed hemorrhoids and whether this disorder is related to the Veteran's active duty service. The following considerations must govern the examination: a. The claims file and a copy of this remand must be made available to the examiner, who must acknowledge receipt and review of these materials in any report generated. b. The examiner must review all medical evidence associated with the claims file. In particular, the Board draws the examiner's attention to the Veteran's current diagnosis of hemorrhoids and his in-service diagnosis of hemorrhoids. c. All indicated tests and studies must be performed. d. The examiner must provide an opinion as to whether the Veteran has hemorrhoids that are related to his active duty service. e. In all conclusions, the examiner must identify and explain the medical bases of his or her opinion with reference to the claims file. The examiner is advised that the Courts have imposed a requirement on the Board to evaluate any medical opinions by examination of multiple factors, including but not limited to: whether the examiner conducted a personal interview of the Veteran; whether clinical testing was conducted; whether a comprehensive review of the claims file and other medical and factual evidence was considered, including lay statements and other medical opinions, with consideration of conclusions reached and whether they are based on the current state of medical knowledge. The examiner is also advised that by law, the mere statement that the claims file was reviewed by an examiner with expertise is not sufficient to find an examination or the opinion adequate. In addition, the examination report must include a complete rationale for any opinions expressed. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, if the claim is denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, this case should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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 2014). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs