Citation Nr: 21000511 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-39 999 DATE: January 5, 2021 REMANDED Entitlement to service connection for a right arm disability is remanded. Entitlement to service connection for a sinus disability is remanded. Entitlement to service connection for hemorrhoids is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Navy from June 1988 to June 1992. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio which, inter alia, denied service connection for a right arm, sinus, and hemorrhoid disability. The Veteran timely filed a notice of disagreement (NOD) in September 2014. A Statement of the Case (SOC) was issued in July 2015, but VA erroneously sent to an incorrect address. The Veteran was subsequently provided with a copy of the SOC, and timely filed a substantive appeal, via a VA Form 9, appeal to the Board of Veterans’ Appeals in August 2016. In the VA Form 9, the Veteran limited his appeal to the claims decided herein. In September 2020, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is of record. 1. Entitlement to service connection for a right arm disability. The Veteran contends that he has a right arm disability that had its onset during his active service. The Veteran reported that he first experienced issues in 1989 until he separated from service. He reported that his military occupational specialty required him to frequently take equipment from different locations. Additionally, they were toting tool bags with various types of tools in it. He reported that his dominant arm is his right arm and he constantly used it to pull and lift. Service treatment records (STRs) reflect that in the Veteran’s October 1988 entrance report of medical history, he reported a right arm injury in 1982. The corresponding report of medical examination notes a normal clinical evaluation for upper extremities. A medical surveillance questionnaire reflects that the Veteran complained of “pull muscle” in arms due to his work in construction from November 1988 to May 1991. In all cases, a Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). In other words, “[w]hen no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry.” Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Thus, the Veteran has been presumed sound as to his upper extremities at the time of entry. A September 2013 VA examination report reflects that the Veteran did not have a diagnosis of a right arm disability. He reported deep right arm muscle pain starting around the elbow and traveling to the mid-forearm that causes functional impairment. The examiner noted that there was no abnormal right arm condition found to attribute to military service. He reported that an enlistment examination documents a childhood fracture of the right arm. He concluded that there was no documented chronic right arm pain/condition in the STRs. The United States Court of Appeals for the Federal Circuit (Federal Circuit) issued a decision in Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018). In that decision, the Federal Circuit found that the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” Consequently, a medical opinion by an appropriate clinician is warranted to determine whether the Veteran’s right arm causes functional impairment. Additionally, the examiner failed to take into consideration the Veteran’s statements regarding his MOS requirements of heavy lifting. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 2. Entitlement to service connection for a sinus disability is remanded. The Veteran contends that he has a sinus disability that had its onset during active service. He reported that he started having treatment for the sinus condition while in service and it has chronically continued since. He reported that during service, he was prescribed a nasal furosemide and different nasal sprays. He reported that he had to go into a gas chamber without a mask on. STRs reflect that the Veteran was seen numerous times for hemoptysis, pneumonia, and bronchitis. In June 1990, the Veteran was seen for a sore throat, nasal congestion, bilateral earache, and productive cough. In the June 1992 separation report of medical history, the Veteran reported that he coughed up blood. Post-service, the Veteran has been treated for pneumonia. In 2009, the Veteran complained of sinus pain and was assessed with “other disease of nasal cavity and sinuses.” In 2014, he was diagnosed with rhinosinusitis with allergic component. In 2015, he was diagnosed with acute sinusitis. In accordance with the duty-to-assist provisions codified at 38 U.S.C. § 5103A (d) and by regulation found at 38 C.F.R. § 3.159(c)(4), a medical opinion or examination is required if the information and evidence of record does not contain sufficient evidence to decide the claim, but there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has not been afforded a VA examination to determine whether his diagnosed sinus disability it is related to his active military service. As in-service medical evidence reflects possible symptoms of a sinus disability and the Veteran was later diagnosed with acute sinusitis following service, a remand for a medical evaluation and nexus opinion is warranted to decide the claim. 3. Entitlement to service connection for hemorrhoids is remanded. The Veteran contends that his hemorrhoids had their onset during service. The March 1988 entrance report of medical examination reflects a normal clinical evaluation for the anus and rectum. In May 1989 the Veteran reported chronic recurring pain sharp to internal anus at opening. He reported that this has been ongoing for seven years. He was assessed with recurring internal hemorrhoids or a fissure. A February 1992 examination of the rectum showed that there was no tenderness. At separation, there was a normal clinical evaluation for the anus and rectum. In all cases, a Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). In other words, “[w]hen no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry.” Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Thus, the Veteran has been presumed sound as to his anus/rectum. A September 2013 VA examination report reflects that the Veteran has a diagnosis of internal or external hemorrhoids with a date of diagnosis of 1991. He reported that he continues to have rectal hemorrhoid swelling and soreness. On examination, there were large external hemorrhoids. The examiner opined that external and internal rectal hemorrhoids are less likely as not caused or aggravated beyond natural progression by military service. As rationale, he reported that an enlistment examination does not mention a history of rectal hemorrhoids but when the Veteran experienced a hemorrhoid flare up secondary to his passage of hard stool, he reported a history of hemorrhoids treated by his civilian doctor prior to military service. The examiner failed to provide an adequate rationale for his opinion. Specifically, he just reinstated that the Veteran did not mention a history of rectal hemorrhoids until a flare up occurred during service. He found that the Veteran’s diagnosis of hemorrhoids was in 1991, during active military service; however, did not provide an opinion or rationale as to whether the Veteran’s current diagnosis was due to his in-service flare-up. Consequently, a medical opinion by an appropriate clinician is warranted to determine whether the Veteran’s hemorrhoids are due to his active military service. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine whether he has a current right arm disability. All indicated tests and studies should be performed and findings reported in detail. The claims folder must be made available to the examiner for review prior to examination. The clinician should identify all right arm disabilities that have existed since the date of the claim. Then, the clinician should indicate whether it is at least as likely as not (at least a 50 percent probability) that any right arm disability is related to or had its onset during the Veteran’s military service, to include his in-service arm pain complaint. The clinician should then indicate whether the Veteran experiences functional impairment due to right arm pain. Then, the clinician should indicate whether any impairment, whether or not attributed to a specific diagnosis, is related to an in-service disease or injury or had its onset in service. 2. Schedule the Veteran for a VA examination with an appropriate clinician. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the physician prior to completion of the opinion, and the opinion must reflect that the claims folder was reviewed. The clinician should opine as to whether the Veteran’s acute sinusitis is at least as likely as not that it (1) began during active service; (2) manifested within one year after discharge from service; OR (3) is related to an in-service injury, event, or disease, to include the in-service complaints of cough, congestion, and ear pain. In providing the requested opinion, the clinician should specifically consider and discuss all pertinent medical evidence and lay assertions and the service treatment records. 3. Obtain a VA medical opinion to determine the nature and likely etiology of a hemorrhoid disability. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner prior to completion of the opinion, and the opinion must reflect that the claims folder was reviewed. The examiner should indicate whether it is at least as likely as not (at least a 50 percent probability) that the Veteran’s hemorrhoids is related to or had its onset during the Veteran’s military service, to include the inservice notation of “hemorrhoids or fissures.” The clinician should also consider and discuss all lay assertions, to include the Veteran’s assertions as to the nature, onset, and continuity of symptoms. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laroche, N. The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.