Citation Nr: 18148422 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 15-01 850 DATE: November 8, 2018 ORDER Entitlement to service connection for a right hip disability is denied. Entitlement to service connection for a chronic disability manifested by nose bleeds and/or sores is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has, or has had at any time during the appeal, a right hip disability. 2. The preponderance of the evidence is against finding that a nose condition, to include nosebleeds and sores, was incurred in or caused by a disease or injury during service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hip disability are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for a nose condition, to include nosebleeds and sores, are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Navy from October 1976 to December 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs. Elements of Service Connection To establish service connection, 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. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997). Whether these requirements are met is based on analysis of all the evidence of record and an assessment of its credibility and probative weight. 38 C.F.R. § 3.303(a); Baldwin v. West, 13 Vet. App. 1 (1999). The Board may consider many factors when assessing the credibility and weight of lay evidence, including statements made during treatment, self-interest or bias, internal consistency, and consistency with other evidence. Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam); Pond v. West, 12 Vet. App. 341, 345 (1999); Madden v. Gober, 125 F.3d 1477, 1480-81 (1997). The Board may also weigh the absence of contemporaneous medical evidence as a factor, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff’d sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact). Ultimately, it is the appellant’s burden “to present and support a claim for benefits under laws administered by the Secretary.” See 38 U.S.C. § 5107(a). 1. Entitlement to service connection for a right hip disability is denied. The Veteran seeks service connection for a right hip disability, to include right hip pain, stiffness, and tenderness as due to or aggravated by a basketball injury during service. After a thorough review, the Board finds that the preponderance of the evidence is against finding that the Veteran has, or has had at any time during the appeal, a right hip disability. After filing his claim, the Veteran was afforded a VA examination (VAX) on December 15, 2011. During the examination, the Veteran stated that he experiences right hip pain, stiffness, and tenderness which he treats with rest and pain relievers. The physical examination did not demonstrate any objective evidence of painful motion, localized tenderness, or pain on palpation of the joint or soft tissue, and the examination did not demonstrate any other objective or clinically diagnosable abnormalities, such as limitation in range of motion, including after repetitive testing. See December 15, 2011 VAX report at page 2. The corresponding x-rays were also negative. Id. at 3. This lack of objective findings is not necessarily dispositive because the United States Court of Appeals for the Federal Circuit in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), held that the term “disability” refers to functional impairment, and pain can serve as a functional impairment when it impairs the body’s normal functioning. Id. at 1364. However, the Saunders court made clear that to establish the presence of a disability, “a veteran will need to show that [his] pain reaches the level of functional impairment of earning capacity.” Id. at 1368. Assuming arguendo the Veteran has pain, stiffness, and tenderness, the record does not demonstrate that the Veteran’s right hip symptoms result in functional impairment of earning capacity, and the examiner otherwise found that his reported right hip condition does not affect his usual occupation. See December 15, 2011 VA examination report at page 3. As a result, the preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a right hip disability. Therefore, the claim is denied. 2. Entitlement to service connection for a nose condition is denied. The Veteran contends that he has recurrent nosebleeds and nose sores that are related to service. Unlike above, the evidence of records shows that the Veteran has, or has had, nosebleeds and/or nose sores during the appeal period. However, after thoroughly reviewing the record, the Board concludes that the preponderance of the evidence is against finding that the Veteran’s nosebleeds and nose sores began during active service, or are otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). While the Veteran is competent to report that he began having nosebleeds during service, his reports are not credible due to internal inconsistencies in his reports and inconsistencies with other evidence in the record. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Caluza, 7 Vet. App. at 512. The Veteran’s service treatment records are silent for any complaints or treatment of nosebleeds, despite lodging complaints and seeking treatment for other conditions. Furthermore, the Veteran expressly stated in his July 2011 application for disability compensation that his nosebleeds began around 2007. Indeed, the first post-service reference of nosebleeds (epistaxis) is dated June 2009—nearly 30 years after service. The amount of time between service and initial demonstration of the disability at issue is for consideration. While the Veteran subsequently reported during the December 2011 VA examination (VAX) that he has had nosebleeds since service, the Board finds that the absence of any complaints or treatment during service, combined with the contradictory statement in his application, undermines his credibility and does not support a finding that the Veteran’s nosebleeds began in service, or were caused by service. The Veteran did not report nose sores on his application for benefits, but mentioned them in the October 2011 Statement in Support of Claim. See VA 21-4138 (Oct. 6, 2011) (“Additionally, I get sores on the inside of my nose a few times a year, which are painful.”). To the extent he is claiming that they began in service, his contention is not credible due to internal inconsistencies in his reports and inconsistencies with other evidence in the record. Buchanan, 451 F.3d at 1336-37; Caluza, 7 Vet. App. at 512. The Veteran’s service treatment records are silent for any complaints or treatment of nose sores despite lodging complaints and seeking treatment for other conditions. Moreover, the first record of nose sores is dated September 2011—more than 30 years after service. The length of time between service and initial demonstration of the disability at issue is for consideration. Indeed, the private physician who examined the Veteran diagnosed the condition as acute nasopharyngitis (common cold). Furthermore, the Veteran did not report getting nose sores during the December 2011 VAX. While the Veteran has reported having the claimed nose conditions since service, there is no record of such treatment and the Veteran did not submit proof to the contrary. See Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that the VA’s duty to assist is not a one-way street; if a veteran wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence). While he now contends that he has a nose condition that is related to service, the Board does not find that he is competent to provide a nexus opinion in this case as the evidence does not show that he has the proper education, training and expertise to be deemed competent to render such an opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Moreover, he has not submitted any medical evidence linking a current nose condition to service. See 38 U.S.C. § 5107(a). Given the above, the Board finds that the lay evidence regarding the nose condition is not credible and is not entitled to any probative weight. See Caluza, 7 Vet. App. at 512. While the Board recognizes that it must ensure the adequacy of examinations when it undertakes to provide such, a discussion of the adequacy of the VA examination and medical opinion obtained during this appeal is unnecessary as it relied on the Veteran’s lay statements of onset/incurrence which are not credible. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical evidence which relies on an inaccurate factual premise is not entitled to any probative weight). Pursuant to Bardwell v. Shinseki, 24 Vet. App. 36 (2010), where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required. Id. at 39. In this case, the Board has determined that the Veteran’s lay assertions of onset and causation are not credible and there is no other probative evidence of a chronic nose condition in service. The record does not otherwise demonstrate an etiology to service. Consequently, another VA examination or opinion is not required and the appeal is denied. Bardwell, 24 Vet. App. at 39. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Kutrolli, Associate Counsel