Citation Nr: 1751418 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 17-24 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for sinusitis. 2. Entitlement to service connection for a disability manifested by frequent urination. 3. Entitlement to service connection for erectile dysfunction. 4. Entitlement to service connection for a skin disability/rash in the shoulder area (skin disability). 5. Entitlement to service connection for headaches. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Keninger, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1956 to June 1958 and July 1959 to October 1976. These matters come before the Board of Veterans' Appeals (Board) from a February 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. A Statement of the Case (SOC), issued by the RO in April 2017, continued to deny service connection for the Veteran's claims. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The record does not show a diagnosis or symptoms of sinusitis during the period on appeal. 2. The record does not show a diagnosis or symptoms of frequent urination during the period on appeal. 3. The Veteran's service treatment records do not show the Veteran's erectile dysfunction had an onset in service. 4. The record does not show a diagnosis or symptoms of a skin disability during the period on appeal. 5. The record does not show a diagnosis or symptoms of headaches during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for sinusitis have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for a disability manifested by frequent urination have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 4. The criteria for service connection for a skin disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 5. The criteria for service connection for headaches have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). The Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A lay person is competent to report to the onset and continuity of his symptomatology. Id. at 438. Moreover, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence or common knowledge of a lay person, (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. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person. See Kahana, 24 Vet. App. at 433, n. 4. A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a Veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Fagan, 573 F.3d at 1287 (quoting 38 U.S.C.A. § 5107(b)). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against service connection for all five disabilities. The Board will address each disability separately below. (a) Sinusitis The first element of service connection requires a current disability. Holton, 557 F.3d at 1366. Here, the preponderance of the evidence is against a finding that the Veteran has a current diagnosis of sinusitis during the period on appeal, to include the period in close proximity to when the Veteran submitted his claim for service connection in October 2015. The Board acknowledges that the Veteran's service treatment records (STRs) indicate treatment for sinus symptoms in 1972 and 1975. The Veteran has submitted medical records that cover the period between 2012 and 2015, but these records do not show treatment for or a diagnosis of sinusitis. Absent a current disability, service connection for sinusitis must be denied. (b) Frequent Urination As noted above, the first element of service connection requires a current disability. Id. Here, the preponderance of the evidence is against a finding that the Veteran has a disability manifested by frequent urination during the period on appeal. The Veteran's treatment records from the Naval Medical Center San Diego indicate the Veteran was diagnosed with a urinary tract infection in June 1997. However, the Veteran did not file his claim for a disability manifested by frequent urination until October 2015, and therefore, the June 1997 diagnosis does not fall within or in close proximity to the period on appeal. The Board acknowledges that the Veteran's STRs indicate treatment for cloudy urination and urgency. Thus, while there is in-service evidence of urinary problems and post service evidence, there is a lack of competent evidence of a current disability, and without such evidence, service connection for a disability manifested by frequent urination must be denied. (c) Erectile Dysfunction The Veteran was diagnosed with erectile dysfunction in October 2013, and continues to have that diagnosis, which meets the first requirement for service connection. However, the Veteran's STRs are silent for treatment or complaints of erectile dysfunction, and the Veteran's separation examination did not note any indication of erectile dysfunction at discharge. Additionally, the Veteran, in his Form 9, asserted that his erectile dysfunction began after his back operations. The evidence in the file shows that the Veteran's back surgery took place in 2004, which is 28 years after discharge from service. This tends to establish that erectile dysfunction occurred as a result of back surgery. The Veteran is not service connected for a back disability. Absent an in-service disease or injury and evidence of a nexus between erectile dysfunction and service, service connection for erectile dysfunction must be denied. (d) Skin Disability Again, the first element of service connection requires a current disability. Holton, 557 F.3d at 1366. The preponderance of the evidence is against a finding that the Veteran has a current skin disability during the period on appeal, to include the period in close proximity to when the Veteran submitted his claim for service connection in October 2015. The Board acknowledges that the Veteran's service treatment records (STRs) indicate treatment for a rash in the shoulder and neck area in August 1970. The Veteran has submitted medical records that cover the period between 2012 and 2015, but these records do not show treatment for or a diagnosis of a skin disability. Absent a current disability during or in close proximity to the period on appeal, service connection for a skin disability must be denied. (e) Headaches Again, the first element of service connection requires a current disability. Holton, 557 F.3d at 1366. The preponderance of the evidence is against a finding that the Veteran has current headaches during the period on appeal, to include the period in close proximity to when the Veteran submitted his claim for service connection in October 2015. The Board acknowledges that the Veteran's service treatment records (STRs) indicate treatment for headaches in November 1962, August 1970, and March 1972. The Veteran has submitted medical records that cover the period between 2012 and 2015, but these records do not show treatment for or a diagnosis of a headaches. Absent a current disability during or in close proximity to the period on appeal, service connection for headaches must be denied. In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence on any aforementioned theory of entitlement. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Thus, the claims must be denied. ORDER Entitlement to service connection for sinusitis is denied. Entitlement to service connection for a disability manifested by frequent urination is denied. Entitlement to service connection for erectile dysfunction is denied. Entitlement to service connection for a skin disability is denied. Entitlement to service connection for headaches is denied. ______________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs