Citation Nr: 21021424 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 15-11 976 DATE: April 13, 2021 ORDER Entitlement to service connection for a sinus condition is denied. Entitlement to service connection for a psychiatric disability to include schizophrenia, depression, and anxiety is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a sinus condition at any time during or approximate to the pendency of the claim. 2. The Veteran’s psychiatric disability to include schizophrenia, depression, and anxiety was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a sinus condition are not met. 8 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a psychiatric disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 2006 to February 2009, to include service in Southwest Asia. The Veteran requested a personal hearing, and one was scheduled in May 2017. The Veteran failed to appear for the hearing and has neither requested the hearing to be rescheduled nor provided good cause for his absence. Given such, his hearing request is considered withdrawn. 38 C.F.R. § 20.704(d). This matter was remanded by the Board in January 2019. The Board remanded the currently appealed claims to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives, to the extent possible. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999). It appears that the Veteran's current whereabouts are unknown. A review of the Veteran's claims file shows that he has been missing since February 2016. Correspondence submitted by the Veteran’s mother in June 2019, reported that the Veteran had been missing since February 2016 and police have tried to find him to no avail. A March 2020 affidavit submitted by the Veteran’s mother noted that the Veteran was still missing and it was unknown if he was still alive. An October 2020 correspondence from the AOJ indicates development and attempts to notify and contact the Veteran with no success. Specifically, the Board notes that the AOJ's efforts were aimed at scheduling the Veteran for appropriate examinations to determine the etiology of the Veteran’s sinus and psychiatric disabilities. The Board also finds it highly significant that, in a March 2020 written brief presentation, the service representative conceded that the Veteran’s whereabouts were unknown. The Board observes here that Veterans generally must keep VA apprised of their whereabouts. If they do not do so, then there is no burden on the part of VA to “turn up heaven and earth to find [them].” See Hyson v. Brown, 5 Vet. App. 262, 265 (1993); see also Thompson v. Brown, 8 Vet. App. 169, 175 (1995). Having reviewed the record evidence, to include the AOJ's extensive efforts to locate the Veteran, along with correspondence from the Veteran’s mother that he has unfortunately been missing since 2016, the Board finds it reasonable to infer that VA has met its burden in attempting to locate the Veteran. The Board also finds it reasonable to infer that, in failing to keep VA apprised of his current whereabouts, the Veteran essentially abandoned his currently appealed claims. See Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010); see also 38 C.F.R. § 3.158. Given that the Veteran failed to report for VA examinations deemed necessary to adjudicate his currently appealed claims fairly, the Board finally finds that these claims will be adjudicated on the record evidence. See 38 C.F.R. § 3.655(a)-(b). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 38 C.F.R. § 3.655 provides that in general with an original claim when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, the claim shall be rated based on the evidence of record. 1. Entitlement to service connection for a sinus condition On the Veteran’s August 2011 claim for compensation, he listed “sinus” as a condition that service connection would be warranted. A review of the Veteran’s service treatment records shows no treatment reports for a sinus condition. The Veteran self-reported “no” for a sinus condition in June 2006 and June 2007. A January 2009 separation report of medical history noted that the Veteran self-reported shortness of breath and breathing problems from up on the flight deck working in harsh environments. The examining medical personnel noted that the Veteran’s complaints were associated with JP5 fuel fumes and noted “neg” next to the notation. A review of post-service VA treatment records shows no reports or diagnosis of any sinus condition. On or about January 2020, a VA examination was scheduled to assess the etiology of the Veteran’s sinus complaints. Unfortunately, the Veteran failed to report on the scheduled date. VA attempted to notify him via phone and mail in order to reschedule the examination. However, as noted above, the Veteran’s whereabout have been unknown since 2016. Unfortunately, the Veteran’s claim was remanded specifically because the evidence of record was insufficient to grant service connection for a sinus condition. The examination was scheduled in an effort to assist the Veteran in substantiating his claim, but he did not report. The Board wishes to emphasize that, “[t]he duty to assist in the development and adjudication of a claim is not a one way street.” Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). “If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Based on the evidence of record, the Board finds that service connection for a sinus condition is not warranted. Service treatment records are negative for any diagnoses of or treatment for a sinus condition. The separation physical dated January 2009 showed that the examiner, have considering the Veteran’s reports breathing difficulty, noted “neg” for any disabilty concerning his breathing complaints. Additionally, after separation from service, there are no treatments or diagnosis of any sinus condition. Moreover, there is insufficient lay or medical evidence to suggest that any sinus symptoms reach the level of functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection for a sinus condition is denied. Consideration has been given to the Veteran’s assertion that he has a sinus condition. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of or diagnosis a sinus condition, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). A sinus condition is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that physical examinations, that include objective medical testing, are needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1377); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Additionally, the Veteran’s assertions are outweighed by the lack of treatments, self-reports, or diagnosis for a sinus condition in the post-service treatment records. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a sinus condition as there is no current disabilty. Therefore, the claim must be denied. 2. Entitlement to service connection for a psychiatric disability to include schizophrenia, depression, and anxiety The Veteran contends that his diagnosed psychiatric disability of schizophrenia began during active service. A review of the Veteran’s service treatment records shows no treatment reports for a psychiatric disability. The Veteran self-reported “no” for mental health problems conditions in June 2006, June 2007, and on his separation exam in January 2009. A review of the Veteran’s military personnel records shows that he was found guilty of violation the Uniform Code of Military Justice (USMJ) for assault in August 2007. The evaluation report noted that the Veteran displayed poor judgment and control of his emotions which had a negative impact on his overall performance. A January 2009 administrative separation report showed that the Veteran displayed a pattern of misconduct for offenses of assault. He was separated with a General (Under Honorable Conditions) discharge. After separation from service, a May 2011 VA treatment record shows that the Veteran was brought by law enforcement for a mental health evaluation. The Veteran’s mother reported that the Veteran had not acted right since getting out of the Navy. A positive screening for depression was noted. An August 2011 VA treatment record shows that the Veteran was diagnosed with schizophrenia. An August 2011 private treatment letter shows that the Veteran was admitted to inpatient care due to his psychiatric illness. An August 2011 court document shows that the Veteran’s mother submitted a petition for involuntary commitment. The document noted that the Veteran had a long history of mental illness and had been in inpatient care since May 2011. A September 2012 letter submitted by the Veteran mother reported that she remembered her son’s behavior changing after he returned from his service in the Navy. She reported he was never in any kind of trouble before his Naval service. An August 2012 lay statement from the Veteran’s friend reported that the Veteran’s behavior changed when he returned home in February 2009 after separation from the Navy. The Veteran’s friend reported demeanor change, violence, destruction, destroying his mother’s home, and taking other people’s property. A December 2014 private treatment letter noted that the Veteran was admitted under a court order in December 2014 due to his psychiatric illness. On or about February 2020, a VA examination was scheduled to assess the etiology of the Veteran’s psychiatric disability. Unfortunately, the Veteran failed to report on the scheduled date. VA attempted to notify him via phone and mail in order to reschedule the examination. However, as noted above, the Veteran’s whereabout have been unknown since 2016. Unfortunately, the Veteran’s claim was remanded specifically because the evidence of record was insufficient to grant service connection for a psychiatric disability. The examination was scheduled in an effort to assist the Veteran in substantiating his claim, but he did not report. The Board wishes to emphasize that, “[t]he duty to assist in the development and adjudication of a claim is not a one way street.” Wamhoff, 8 Vet. App. at 522. “If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood, 1 Vet. App. at 193. Based on the evidence of record, the Board finds that service connection for a psychiatric disability is not warranted. Although, the Veteran has a current diagnosis of a psychiatric disability, there are no findings of treatment or symptoms for a psychiatric disability during service or upon separation from service. Additionally, the Veteran was first diagnosed with and treated for a psychiatric condition in May 2011 which is more than two years after separation from service. Simply put, there is not competent evidence showing that the Veteran’s psychiatric disability onset during service or within the first year after separation from service. The Board has considered the lay statements submitted by the Veteran’s mother and family friend that reported changes in behavior of the Veteran’s soon after separation from service. The Veteran’s mother and family friend are lay persons and are not competent to relate psychiatric disabilities to service or identify changes in behavior as due to a psychiatric illness which requires expertise that is outside the realm of common knowledge of a layperson. Kahana, 24 Vet. App. 428; Jandreau, 492 F.3d 1372. Therefore, the Veteran’s mother and family friend are not competent to provide an opinion as to this issue, which requires specialized knowledge and training to diagnose and determine etiology. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a psychiatric disability to include schizophrenia, depression, and anxiety, and the claim is denied. L. BARSTOW Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dworkin, 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.