Citation Nr: 21003570 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 17-04 918 DATE: January 22, 2021 REMANDED Entitlement to service connection for a respiratory disability, to include sinusitis and bronchitis, is remanded. Entitlement to service connection for hernias, other than service-connected rectocele and cystocele, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1982 to June 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated May 2015 and February 2016 of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran presented sworn testimony during a videoconference hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s VA claims file. The claims on appeal were remanded for further evidentiary development in a May 2020 Board decision. A supplemental statement of the case (SSOC) was issued in September 2020. The claims on appeal have been returned to the Board. The May 2020 Board decision also remanded the matters of entitlement to service connection for rectocele to include constipation, cystocele to include urinary incontinence, and painful sex. A September 2020 rating decision granted service connection for: female sexual arousal disorder with dyspareunia (painful sex), evaluated as 30 percent disabling; cystocele with urinary incontinence, evaluated as 40 percent disabling; rectocele with chronic constipation, evaluated as 10 percent disabling; and special monthly compensation (SMC) for loss of use of a creative organ. Those service connection claims have accordingly been resolved. See Grantham v. Brown, 114 F.3d 1136 (Fed. Cir. 1997). 1. Entitlement to service connection for a respiratory disability, to include sinusitis and bronchitis, is remanded. The Veteran asserts entitlement to service connection for a respiratory disability to include sinusitis and bronchitis, which she contends was incurred during her active duty service. See the March 2020 Board hearing transcript. Pursuant to the May 2020 Board Remand, the Veteran was afforded a VA examination in September 2020 at which time the examiner diagnosed the Veteran with acute sinusitis and acute bronchitis. As to the question of nexus, the examiner determined that the diagnosed acute sinusitis and bronchitis were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness.” The examiner explained that the Veteran’s “records are silent for any diagnosis of or treatment for sinusitis while on active duty. At the time of her separation physical on the Report of Medical History she denied having sinusitis.” The examiner further stated, “[t]hough she has occasionally had sinusitis over the years this is unrelated to her active duty service.” As to bronchitis, the examiner explained, STRs “are silent for any mention that the Veteran was diagnosed or treated for bronchitis. The Veteran states that she has been treated for bronchitis 4 or 5 times in the last 20 years with the last occurrence approximately 4 or 5 years ago.” The examiner continued, “[t]hese occasional episodes of acute bronchitis that she has had (many years after her active duty service) are unrelated to her active duty service.” Critically, the September 2020 VA examiner’s opinion is based solely on the absence of sinusitis and bronchitis symptomatology during the Veteran’s active duty service. As noted in the January 2021 Information Hearing Presentation by the Veteran’s representative, the absence of evidence of treatment for a claimed disability in the Veteran's STRs may not serve as the sole basis for a negative opinion. See Dalton v. Nicholson, 12 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim); Buchannan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Accordingly, the Board finds that the medical evidence currently of record is inadequate to resolve the claim of service connection for a respiratory disability, and further that an additional medical opinion is warranted. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made). Upon remand, the Veteran should be afforded a new medical opinion to address the question of nexus with respect to the respiratory disability claim. 2. Entitlement to service connection for hernias, other than service-connected rectocele and cystocele, is remanded. The Veteran asserts entitlement to service connection for hernias, which she contends are residual complications of childbirth. See, e.g., the March 2020 Board hearing transcript. Pursuant to the May 2020 Board Remand, the Veteran was afforded VA examinations in September 2020, which identified disabilities including rectocele with chronic constipation and cystocele with urinary incontinence. Service connection was granted for the disabilities in a September 2020 rating decision. As noted in the January 2021 Informal Hearing Presentation, the September 2020 VA examinations failed to address whether the Veteran has separate hernias, aside from those causing rectocele and cystocele, which are complications of childbirth. As such, the Board finds that the medical evidence of record is inadequate to resolve the claim of service connection for hernias, and further that an additional medical opinion is warranted. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made). Upon remand, the Veteran should be afforded a new medical opinion to address the questions of diagnosis and nexus with respect to the hernia claim. On remand, any previously unobtained ongoing relevant VA treatment records should also be procured and associated with the Veteran’s claims file. The matters are REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure any records of outstanding private and VA treatment that the Veteran has received, which is potentially pertinent to the pending claims. All such available documents should be associated with the claims file. 2. The AOJ shall refer the VA claims file to a clinician with appropriate expertise to provide an opinion as to the claimed respiratory disability to include sinusitis and bronchitis. The examiner is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records. Then, the examiner should respond to the following: Is it at least as likely as not that any current sinusitis and/or bronchitis had its(their) onset in service, or within the year immediately following any period of service, or is(are) otherwise the result of a disease or injury in service? The absence of evidence of treatment for a respiratory disability to include sinusitis and bronchitis in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. Should the examiner decide that a physical examination of the Veteran is required to address these questions, one should be scheduled. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 3. The AOJ shall refer the VA claims file to a clinician with appropriate expertise to provide an opinion as to the claimed hernias. The examiner is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records. Then, the examiner should respond to the following: (1). Does the Veteran have a diagnosed hernia disability, separate and apart from the service-connected rectocele and cystocele? (2). If so, is it at least as likely as not that the identified hernia disability was incurred in the Veteran’s active duty service, to include the conceded in-service childbirth? The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. (Continued on the next page)   Should the examiner decide that a physical examination of the Veteran is required to address these questions, one should be scheduled. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, Counsel 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.