Citation Nr: 18146119 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 17-64 462 DATE: October 30, 2018 ORDER Entitlement to service connection for a sinus disability diagnosed as chronic sinusitis and claimed as sinusitis and a cystic tumor is granted. Entitlement to service connection for a left wrist disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for hemorrhoids is denied. FINDINGS OF FACT 1. A sinus disability diagnosed as chronic sinusitis had its’ onset during service. 2. The preponderance of the evidence shows that the Veteran was not diagnosed with a left wrist disability, a right knee disability, and hemorrhoids at any time during the pendency of the appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for a sinus disability diagnosed as chronic sinusitis have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection a left wrist disability, a right knee disability, and hemorrhoids have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from August 2007 to September 2016 which service included two tours of duty in Afghanistan. In January 2018, the Board of Veterans’ Appeal (Board) received from the Veteran a waiver of agency of original jurisdiction (AOJ) review of the evidence added to the claims file since the issuance of the October 2017 statement of the case. The Service Connection Claims Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). a. The Sinus Disability The Veteran asserts, in substance, that service connection is warranted for a sinus disability because he was treated for chronic sinusitis on many occasions while on active duty and his observable problems with sinusitis has continued since that time. The post-service record shows the Veteran being diagnosed with sinusitis. See, e.g., Med First Immediate Care and Family Practice treatment records dated in April 2017 and May 2017. The Board finds that the Veteran had an in-service disease or injury because service treatment records document his complaints and treatment for chronic sinusitis and chronic pansinusitis on many occasions. See, e.g., service treatment records dated from 2010 to 2016. The service treatment records also report that the Veteran had a cyst surgically removed from his sinus in 2013. Further, the Board finds that the Veteran is both competent to report observing problems due to his sinus during and since and his account of having these problems since that time is credible. See Owens, supra; Davidson, supra. Considering the Veteran’s post-service diagnosis of sinusitis, the in-service treatment for sinusitis, and the credible history of observable sinus problems since service, the Board finds that the question of whether his sinusitis had continued since service is in equipoise and with affording him the benefit of the doubt, the Board concludes that it did and service connection is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.302; see also Gilbert, supra. b. The Left Wrist Disability, Right Knee Disability, and Hemorrhoids The Veteran asserts, in substance, that service connection is warranted for a left wrist disability, a right knee disability, and hemorrhoids because they were all caused by his military service. However, the post-service record is negative for a diagnosis of these disabilities at any time during the pendency of the appeal. See McClain, supra. In fact, at the November 2016 VA examinations which was held for the express purpose of diagnosing a left wrist disability, a right knee disability, and hemorrhoids the examiner opined that the Veteran did not have these disabilities. Tellingly, the Board finds that these VA opinions are the most probative evidence of record because they were provided after an examination of the Veteran and the opinions are supported by citation to evidence found during the examination. See Owens, supra. In reaching this conclusion, the Board has not overlooked the fact that service treatment records documented complaints relatable to each of the claimed disabilities-left wrist and right knee pain as well as on one occasion external hemorrhoids. The Board also notes that post-service records from Med First Immediate Care and Family Practice document the Veteran’s complaints of left wrist pain in August 2017. However, a December 2008 right knee X-ray was negative. Likewise, Periodic Health Assessments dated in July 2011, January 2013, May 2013, October 2013, and June 2014; an examination dated in November 2013; and Post Deployment Examinations dated in January 2012 and October 2013 did not diagnose the Veteran with a left wrist disability, a right knee disability, and/or hemorrhoids. As to the left wrist and right knee pain, the Board also finds that neither the in-service nor the post-service complaints of pain can provide the Veteran with the missing diagnoses because pain is not a disability. In this regard, the Board finds that the facts of this appeal are distinguishable from those in Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018), because in the current appeal the November 2016 VA examination results show that none of the claimed disorders causes a functional impairment that affects the Veteran’s earning capacity. As to the in-service diagnosis of external hemorrhoids on one occasion in December 2010, the Board finds as the November 2016 VA examiner must have found that this problem resolved post-service because they were no longer present when examined. See Owens, supra. The law is clear that to prevail on the claims of service connection for the claimed disabilities the record must show the claimant had the disabilities at the time he filed his claim for VA disability compensation and/or at any during the pendency of her claim. See McClain, supra. Therefore, because the most probative evidence of record is the November 2016 opinion by the VA examiner that the Veteran does not have any of the claimed disabilities post-service, the Board finds that neither the service treatment records generated before the claims for service connection were filed with VA nor the post-service records that reported a left wrist pain are sufficient to provide the missing post-service diagnoses. See Owens, supra. Furthermore, while the Veteran is competent to report on the symptoms he observed, the Board does not find him competent to diagnose any of the claimed disorders because diagnosing them requires special medical training that he does not have. See Davidson, supra. (Continued on the next page)   Accordingly, the Board finds that the most probative evidence of record shows that the Veteran did not have diagnoses of a left wrist disability, a right knee disability, and hemorrhoids at any time during the pendency of the appeal. See Owens, supra. Therefore, the Board finds that these claims must be denied. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Neil T. Werner, Counsel