Citation Nr: A25035776 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240530-444373 DATE: April 17, 2025 ORDER Entitlement to service connection for rhinitis, to include as due to toxic exposures, is denied. Entitlement to service connection for sinusitis, to include as due to toxic exposures, is denied. REMANDED Entitlement to service connection for asthma, to include as due to toxic exposures, is remanded. Entitlement to service connection for hemorrhoids with rectal stricture is remanded. FINDINGS OF FACT 1. The competent and credible evidence of record persuasively establishes a finding that there is no current diagnosis for sinusitis. 2. The competent and credible evidence of record persuasively establishes a finding that there is no current diagnosis for rhinitis. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for rhinitis, to include as due to toxic exposures, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for sinusitis, to include as due to toxic exposures, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1992 to March 1993, from December 2003 to March 2005, July 2007 to January 2008, and from July 2012 to July 2013. This case comes before the Board of Veterans' Appeals (Board) on appeal from August 2023, September 2023, and March 2024 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2023, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of an April 2023 decision regarding the sinusitis and rhinitis claims. In September 2023, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior April 2023 decision. In the May 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, for the asthma claim, the Board may only consider the evidence of record at the time of the August 2023 AOJ decision on appeal. 38 C.F.R. § 20.301. For the hemorrhoids claim, the Board may only consider the evidence of record at the time of the March 2024 AOJ decision on appeal. Id. Any evidence submitted after their respective AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. And for the sinusitis, and rhinitis, the Board may only consider the evidence of record at the time of the April 2023 AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the asthma, sinusitis, and rhinitis claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the hemorrhoid claim, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). 1. Entitlement to service connection for rhinitis 2. Entitlement to service connection for sinusitis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran 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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran alleges that he has sinusitis, and rhinitis, which began during service, due to burn pit exposure. Unfortunately, the Board finds that there is not a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran underwent VA examinations February 2022 where the examiner found no current disability, and objective testing revealed current no symptoms. The AOJ attempted to schedule for the Veteran for additional VA examinations in April 2023, but they were cancelled because the Veteran was unavailable. The Board acknowledges March 2015 private treatment records (PTRs) which indicated allergic rhinitis; however, the record is silent for a current diagnosis, or symptoms during the appeal period. A claim of entitlement to service connection requires evidence of a chronic disability. Without a current diagnosis, service connection is not warranted at this time. The Board acknowledges the Veteran's statements regarding this condition. As he is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., knee pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). He is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, these lay assertions do not constitute evidence upon which service connection can be granted. Accordingly, the criteria for the claim of entitlement to service connection for sinusitis and rhinitis have not been met, and the appeal is denied. In reaching this decision the Board considered the doctrine of reasonable doubt. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence persuasively favors the claim or is in approximate balance, with the Veteran prevailing in either event, or whether the evidence persuasively weighs against the claim, in which case the claim is denied. In other words, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (2021). Here, however, as the evidence is persuasively against the claim and the positive and negative evidence is not in approximate balance, the doctrine is not for application. Id. REASONS FOR REMAND 1. Entitlement to service connection for asthma is remanded. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran underwent VA examinations in February 2022 where the examiner found no current diagnosis, or any current symptoms. However, an August 2023 addendum opinion referenced August 2022 private treatment records (PTRs) from the Tucson Medical Center which noted asthma and inhaler use. These records are not associated with the claims file. VA's duty to assist claimants to obtain evidence needed to substantiate a claim includes making reasonable efforts to obtain relevant private medical records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Accordingly, a pre-decisional duty to assist error has been identified, and remand is required. The Board acknowledges that there is a possibility that these records contain current diagnoses for sinusitis and rhinitis; however, because they were not raised in the record until after the April 2023 rating decision which was subject to a HLR, this does not warrant a pre-decisional duty to assist error. 2. Entitlement to service connection for hemorrhoids with rectal stricture is remanded. The Veteran underwent a VA examination in March 2023 where the examiner provided three negative nexus opinions. In the first, the examiner indicated that there was no evidence in the record of a current disability, and that there was no known correlation between toxic exposures, and hemorrhoids. In the second, the examiner opined that without chronicity during service or after service, a post-service event, illness, or injury is considered to be a more likely etiology. They noted the veteran stated he had diarrhea while deployed in 2005, which was not mentioned in the record. The examiner referenced a 2013 post-deployment questionnaire which stated no diarrhea. They cited to a study that contrary to expectation, diarrhea and gravidity were not associated with hemorrhoids, and sedentary behavior was associated with a reduced risk. In the third, the examiner found that hemorrhoids are a disease with a clear and specific etiology and diagnosis, and that it was less likely than not that the hemorrhoids were related to the exposure event experienced in Southwest Asia. They found that there was no record of this condition in the Veteran's medical file, and that there is no known correlation between toxic exposures and hemorrhoids. The examiner concluded that it was therefore less likely than not that this condition is a result of exposure while deployed. In August 2023, the AOJ obtained an addendum medical opinion. The examiner found that there was no medical or scientific evidence available that identified a causal relationship between the toxic exposure risk activity (TERA) and the development of the claimed condition of hemorrhoids. In February 2024, the Veteran underwent another VA examination, and the examiner provided a negative nexus opinion. They acknowledged the TERA, that the service treatment records (STRs) were silent for diarrhea, and that the Veteran denied a history of diarrhea. The examiner referenced the Veteran's previous statement that he got the hemorrhoids due to straining to have a bowel movement when he did not have the urge, as he did not want to have to do so when in the hummer. First, the Board finds that the examiners relied their opinions on an erroneous premise and theory of entitlement. The Veteran has never once asserted that the hemorrhoids were related to environmental exposures on deployment in Southwest Asia. As addressed in the February 2024 opinions, he instead has claimed that he developed hemorrhoids due to straining to have bowel movements prior to going on convoy. He first raised this theory of entitlement on his November 2022 application. The examiners appear to have simply seen that he had service in Southwest Asia, and automatically jumped to the conclusion that he was making a TERA claim. The February 2024 examiner even referenced the Veteran's statement in passing, but did not actually address that as a theory of entitlement. Their reviews of the record were clearly incomplete and rushed. Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Similarly, it is curious how both examiners were so focused on the lack of a diarrhea diagnosis during service as proof that the hemorrhoids are not related to active-duty service. The conditions are seemingly unrelated, and no examiner has explained with any sort of rationale how the lack of diarrhea is definitive proof of no nexus. And in addressing their presumed premise that the hemorrhoids are related to TERA, they provided nothing more than conclusory statements that they are unrelated, without explanation. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Accordingly, a pre-decisional duty to assist error has been identified, and remand is required. The matters are REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records, specifically to include Tucson Medical Center. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Provide the Veteran with an appropriate examination to determine the etiology of the hemorrhoids. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): If any medical history is rejected, a complete explanation is required. (a) The examiner must provide an opinion regarding whether it is approximately at least as likely as not (an approximate balance of positive and negative evidence) that the hemorrhoids had onset in, or is otherwise related to, active service. The examiner is instructed specifically to NOT address this as a TERA or environmental exposures in Southwest Asia claim, unless the Veteran actually raises this theory of entitlement. If the examiner even mentions environmental exposures in Southwest Asia or TERA as a reason there is no nexus, even in passing, that opinion is to be immediately rejected, and returned for an addendum opinion. The Veteran has not actually raised this as a theory of entitlement at the time of this remand. (b) The examiner should consider the following: 1) the November 2022 application on which that the Veteran asserted that the hemorrhoids were caused by straining to have a bowel movement prior to convoys while on deployment; 2) the April 2023 VA treatment records which noted a history of hemorrhoids; and 3) the March 2023, August 2023, and February 2024 VA medical opinions. Thomas L. English Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rogos, J 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.