Citation Nr: 21070962 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 19-01 807 DATE: November 29, 2021 ORDER New and material evidence having been received, the petition to reopen service connection for a low back disability is granted. Service connection for a testicular condition is denied. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for allergic rhinitis (claimed as sinusitis) is remanded. FINDINGS OF FACT 1. Service connection for a low back disability was denied in an October 2014 rating decision and the Veteran did not appeal the decision. 2. Evidence received since the October 2014 rating decision is new in that it is not cumulative and was not previously considered by decision makers, and it is material because it raises a reasonable possibility of substantiating the claim for service connection for a low back disability. 3. The Veteran does not have a diagnosis of any testicular condition. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for a low back disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 3.159, 20.1103. 2. The criteria for service connection for a testicular condition are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1966 to November 1969. In November 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. New and Material Evidence 1. New and material evidence to reopen the claim for service connection for a low back disability. Rating decisions from which an appeal is not perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An appeal consists of a timely filed notice of disagreement in writing, and after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. To reopen a claim that has been denied by a final decision, new and material evidence must be received. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened; and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, the Veteran submitted a claim for service connection for a low back condition in January 2014, which was denied in an October 2014 rating decision on the bases that service treatment records (STRs) showed a single complaint of low back pain in December 1968, and results of an October 2014 VA examination indicated that there was no medical nexus between the Veteran' low back disability and active service. The Veteran was notified of the decision and he did not appeal it. The additional relevant evidence received since the October 2014 rating decision includes testimony from a November 2020 Board hearing before the undersigned VLJ and private treatment records. Private treatment records from February 2017 indicate that the Veteran's back pain has been present since leaving active service in the 1960s and also the private doctor noted the Veteran's back disability as chronic. At the November 2020 Board hearing, the Veteran testified that he hurt his back in active service carrying and operating heavy machinery, including projectiles. The Veteran stated he could not perform his active service duties for three days and was forced to answer telephone calls. Additionally, the Veteran noted that his back pain has been continuous since active service. The Veteran also testified that he was self-managing his back pain after service and didn't go to the VA for medical care until approximately 2009. Thus, presumed credible, there is evidence that the Veteran has a low back disability that could be related to service. Accordingly, new and material evidence has been received to reopen the claim for service connection for a low back disability. Service Connection 2. Service connection for a testicular condition. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b). The Board first concludes that the Veteran does not have a diagnosis of a testicular condition and has not had any such diagnosis at any time during the pendency of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). Additionally, a review of STRs, private treatment records, and VA treatment records do not show any treatment or complaints for any testicular condition. In August 2001, a private examination indicated that no abnormalities were noted for the Veteran's testicles. Next, the Board also finds that although the Veteran can describe observable symptoms, but his statements cannot be used to determine whether a testicular condition is related service or to an in-service event. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran may be competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"). There is no evidence that the Veteran has the medical education and training required to make competent clinical diagnosis, or to attribute such a diagnosis to specific events or injuries. As such, the Board finds little probative value with regard to establishing service connection based on the Veteran's statements that his testicular condition is related to active service. Accordingly, without competent evidence of any diagnosis for a testicular condition, service connection cannot be awarded. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("In the absence of proof of a present disability, there can be no valid claim."); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that service connection requires a showing of current disability). REASONS FOR REMAND 1. Service connection for a low back disability. The Veteran was most recently afforded a low back VA examination in October 2014. The VA examiner indicated that the Veteran's low back disability was not related to service. First, the Board notes that the VA examiner provided that the Veteran did not have any back disability diagnosis. However, the Board notes private treatment records from April 2003 indicate that the Veteran had a degenerative disc disease diagnosis. Notably, the VA examiner did not comment or discuss that diagnosis. Second, the rationale provided stated that the Veteran only made one complaint of back pain during service and that his separation examination noted no back disorders. The VA examiner mentioned findings in STRs but did not discuss any treatment for the Veteran's back disability post-service. VA examiners may not rely on the absence of evidence in service medical records to provide a negative opinion. See, Dalton v. Nicholson, 21 Vet. App. 23 (2007). The VA examiner also did not explain how their findings relate to not establishing a nexus. Additionally, the VA examiner did not discuss the April 2003 private treatment records which show the Veteran has a back disability diagnosis. See April 2003 private treatment records. Notably, the VA examiner did not comment on the Veteran's military occupation specialty as an artilleryman or his assertions that his back pain has prolonged since active service. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the Board finds the October 2014 VA examination and opinion inadequate for adjudication purposes. Additionally, the Board notes that there is no other medical opinion of record regarding whether the Veteran's back disability is related to service. Accordingly, as the VA examination and opinion did not address all of the evidence and did not provide a complete rationale, a further addendum opinion is necessary. See Bowling v. Principi, at 12. 2. Service connection for allergic rhinitis (claimed as sinusitis). The Veteran underwent a sinusitis and rhinitis VA examination in November 2016. The VA examiner stated that the Veteran had allergic rhinitis and opined that it was less likely than not related to service. The rationale provided only stated that sinusitis was noted once in service and that the Veteran's current symptoms indicate he has rhinitis but STRs do not show a diagnosis of rhinitis during service. The Board finds another examination is necessary. The 2016 VA examiner mentioned findings in STRs but did not discuss any treatment for the Veteran's nose disability post-service. Further, the VA examiner did not explain how their findings relate to not establishing a nexus. Additionally, the VA examiner did not discuss private treatment records which show the Veteran does have a diagnosis of sinusitis. See January 2012 private treatment records. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the Board finds the November 2016 VA examination and opinion inadequate for adjudication purposes. Additionally, the Board notes that there is no other medical opinion of record regarding whether the Veteran's nose disability is related to service. Thus, as the VA examination and opinion did not address all of the evidence and did not provide a complete rationale, a further addendum opinion is necessary. See Bowling v. Principi, at 12. The Board also notes that during the November 2020 Board hearing, the Veteran testified that a private treatment doctor (specifically stated as the "B-T doctor" in Decatur, Alabama) told him that the Veteran's active service was the cause of his sinus problems. Therefore, a remand is required to allow VA to obtain authorization and request all relevant private treatment records, including those specified from the Veteran. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim, including making reasonable efforts to obtain relevant private medical records. 38 C.F.R. § 3.159 (c)(1) (2017). An attempt to secure these records should be made on remand. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any relevant private treatment records, including those identified during the November 2020 Board hearing from the "B-T doctor" from Decatur, Alabama. Make two requests for any authorized records from the physicians/facilities identified by the Veteran, unless it is clear after the first request that a second request would be futile. 2. Obtain an addendum opinion from an appropriate clinician to determine the current etiology of the Veteran's back disability. The Veteran should receive another in-person VA examination if the clinician deems it to be necessary. The examiner must provide a complete written history, including all statements and reports made by the Veteran as to his military service. All back diagnoses should be listed. The VA examiner should offer the following opinions: Is it at least as likely as not (50 percent or greater probability) that any back disability had an onset in service or is otherwise related to service. In rendering the opinion for the Veteran's back disability, the examiner should assume the lay statements are true and MUST discuss and comment on the Veteran's military occupation specialty as an artilleryman, carrying heavy projectiles. A thorough rationale should be provided for all opinions expressed, including discussion of the facts of this case and any medical studies or literature relied upon. The examiner should fully articulate a sound reasoning for all conclusions made. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. The entire claims file, including a copy of this REMAND, must be reviewed. 3. Obtain addendum opinions from an appropriate clinician to determine the current etiology of the Veteran's nose disability. The Veteran should receive another in-person VA examination if the clinician deems it to be necessary. The examiner must provide a complete written history, including all statements and reports made by the Veteran as to his military service. All nose diagnoses should be listed. The VA examiner should offer the following opinions: Is it at least as likely as not (50 percent or greater probability) that any nose disability, to include sinusitis and allergic rhinitis, had an onset in service or is otherwise related to service. In rendering the opinion for the Veteran's nose disability, the examiner should assume the lay statements are true and MUST discuss and comment on the Veteran's lay statements during the November 2020 Board hearing that he had difficulty breathing and talking because of nose congestion during active service. (Continued on the next page) A thorough rationale should be provided for all opinions expressed, including discussion of the facts of this case and any medical studies or literature relied upon. The examiner should fully articulate a sound reasoning for all conclusions made. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. The entire claims file, including a copy of this REMAND, must be reviewed. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Dourmashkin 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.