Citation Nr: 1222263 Decision Date: 06/26/12 Archive Date: 07/02/12 DOCKET NO. 07-33 243 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for hair lip/cleft palate with a sinus condition. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. J. Nardone, Associate Counsel INTRODUCTION The Veteran served on active duty from February 24, 1971 to March 30, 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for service connection for hair lip/cleft palate with a sinus condition. This appeal was previously before the Board and the Board remanded the claim in May 2011 for additional development. The case has been returned to the Board for further appellate consideration. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDING OF FACT The Veteran's hair lip/cleft palate is a congenital defect that clearly and unmistakably preexisted his military service and was not aggravated in service; there is no competent medical opinion linking any current sinus condition to service. CONCLUSION OF LAW The criteria for establishing service connection for hair lip/cleft palate with a sinus condition have not been met. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2011). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In a November 2006 letter, issued prior to the rating decision on appeal, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. This letter also advised the Veteran of how the VA determines a disability rating and assigns an effective date, and the type of evidence which impacts such. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service personnel records, the report of a VA examination, and VA treatment reports. The Veteran's service treatment records are not contained in the claims file and have apparently been lost. In December 2006 and January 2007, the National Personnel Records Center confirmed that the Veteran's service treatment records were mailed to the RO in September 1983. In March 2007, the RO made a formal finding of the unavailability of the Veteran's service treatment records and he was notified of such. In addition, the Board also notes that actions requested in the prior remand have been undertaken. In this regard, the Veteran was notified of the alternative forms of information and evidence which he may submit in lieu of service treatment records by a June 2011 letter, he was asked to provide additional information about treatment and surgery to correct his hair lip and cleft palate, additional VA treatment records were obtained, service personnel records were obtained, and a VA examination was conducted by a physician in July 2011 with an opinion being provided by the examiner. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the VCAA provisions have been considered and complied with. The appellant was notified and aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by reporting for a VA examination, responding to notices, and submitting evidence and argument. Thus, the Veteran has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b) (2011). If a disorder was not noted on entering service, the government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness for wartime service under 38 U.S.C.A. § 1111. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the preexisting condition." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153. If the government fails to rebut the section 1111 presumption, the claim is one for service connection, not aggravation. Id.; see also Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). A pre-existing disease or injury will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). Congenital or developmental defects are not diseases or injuries within the meaning of the applicable law and regulations for VA compensation purposes. 38 C.F.R. § 3.303(c) (2011). A defect is a structural or inherent abnormality or condition which is more or less stationary in nature. VAOPGCPREC 82-90. A disease may be defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. Id. As noted previously, the Veteran's service treatment records are not contained in the claims file and have apparently been lost. The United States Court of Appeals for Veteran's Claims (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran claims that during active service he sustained a hole in his nostril when he was hit in the face with a full sea bag with combat boots on top, and was medically discharged as a result. He contends that such incident caused or aggravated a hair lip/cleft palate with a sinus condition. The service personnel records include an administrative remarks document which contains a March 23, 1971 entry indicating that the Veteran was referred to the Depot Medical Officer and Commanding Officer recommending discharge due to unsuitability because of hard palate perfomtim. This document also reveals that the Veteran was discharged for the convenience of the government later that month. In support of his claim, the Veteran submitted a letter dated in March 1971, in which a Commanding Officer at the Marine Corps Recruit Depot, Parris Island, South Carolina, advised the Veteran's mother that the Veteran was scheduled to be discharged from the U. S. Marine Corps, due to physical disqualification, in March 1971. In a January 2007 response to a request for information, the National Personnel Records Center also indicated that the reason for the Veteran's separation from service was the convenience of the government. Recent VA treatment records, dating since January 2005, indicate that the Veteran has been assessed with and treated for rhinitis and upper respiratory infection with sinusitis. It was also noted that his surgical history includes repair of hair lip and cleft palate. An October 2011 computed tomography scan showed a defect in the hard palate and opacification of rudimentary left frontal sinus with total lack of development of the right frontal sinus. Pursuant to the Board's remand, the Veteran was provided a VA examination with a physician in July 2011 to obtain relevant opinions. The examiner reviewed the claims file. The Veteran reported that he had hair lip/cleft palate surgery in 1955 in Bangor, Maine. He stated that he presented to the military a letter written by his surgeon stating that "everything was ok." This letter allowed him to enter military service. The Veteran stated that while in the service, he was hit in the face with a sea bag. He said that he bled from the nose for a short time and the bleeding stopped on its own. That night, the Veteran noticed that he had a "hole" in the nose. He stated that he has lived with the "hole" in the nose. The Veteran reported that he has had 1 to 2 sinus infections per year, characterized as yellow nasal drainage. The Veteran has used nasal spray with some help and denied any other treatment for sinus infections. There were no associated symptoms and no aggravating or relieving factors. Upon physical examination, the examiner noted a well healed hair lip/cleft palate. The nasal pyramid was intact, with no lesions. Anterior rhinoscopy showed clear mucosa without any congestion, drainage, lesions, masses, or lesions. Inspection and palpation of the left nasal cavity, at the site indicated by the Veteran, showed no fistula, no masses, no lesions, and no drainage. The septum was deviated, concave towards the left side. Oral cavity examination showed a well healed palate without any fistula, masses, or lesions. The sinuses were not tender on palpation. Pursuant to the Board's remand instructions, the examining physician opined on several questions. With regards to whether a hair lip/cleft palate can be caused by a trauma such as a sea bag hitting the face, the examiner said no. The examiner indicated that a hair lip/cleft palate is a congenital disorder and a congenital defect (a structural or inherent abnormality or condition which is more or less stationary in nature). The examiner also concluded that the hair lip/cleft palate did not undergo permanent worsening beyond normal progress during service, to include the reported injury to the Veteran's nostril after being hit in the face by a sea bag, and there were therefore no current residuals of the hair lip/cleft palate related to any such worsening. The examiner also said that there was no objective evidence on examination that any current chronic sinus disorder is the result of the alleged trauma of being hit in the face by a sea bag. Finally, the examiner stated that it is not at least as likely as not (50 percent probability or greater) that any current sinus condition is related to the Veteran's one month and seven days of military service, including the claimed nostril injury reportedly sustained by the Veteran when he was hit with a sea bag during service. The examiner's rationale was that the Veteran has a repaired hair lip/cleft palate without any evidence of disruption of the repair. His scar is well healed. He does have a deviated septum, which is expected in a patient with a hair lip/cleft palate. No evidence of any fistula was noted during the examination. The examiner stated that the Veteran has a history of chronic rhinitis, however, there is no evidence that it is related to the incident during military service. Chronic rhinitis is often seen in patients with repaired hair lip/cleft palate. As the Veteran's service treatment records have apparently been lost and the Veteran's entrance examination is not available, the presumption of soundness applies in this case. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Thus, the Board must determine whether there is clear and unmistakable evidence of both a pre-existing condition and a lack of in-service aggravation. See id. After carefully considering the Veteran's contentions and reviewing the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for hair lip/cleft palate with a sinus condition. The Veteran reported that he had hair lip/cleft palate surgery in 1955 in Bangor, Maine, prior to entering military service. The VA examiner likewise indicated that a hair lip/cleft palate is a congenital disorder and a congenital defect. Moreover, approximately one month after entrance in the service, it was recommended that the Veteran be discharged due to unsuitability because of hard palate perfomtim. Given the above, the Board finds that the Veteran's hair lip/cleft palate clearly and unmistakably pre-existed his entry into service. The Board notes there is no medical opinion linking any current hair lip/cleft palate with a sinus condition to service or indicating that the Veteran's pre-existing hair lip/cleft palate was aggravated during his 1 month and 7 days of service. However, after reviewing the claims file and examining the Veteran, the July 2011 VA examiner concluded that the hair lip/cleft palate did not undergo permanent worsening beyond normal progress during service, to include the reported injury to the Veteran's nostril after being hit in the face by a sea bag, and there were therefore no current residuals of the hair lip/cleft palate related to any such worsening. The examiner also said that there was no objective evidence on examination that any current chronic sinus disorder is the result of the alleged trauma of being hit in the face by a sea bag. Additionally, the examiner stated that it is not at least as likely as not (50 percent probability or greater) that any current sinus condition is related to the Veteran's one month and seven days of military service, including the claimed nostril injury. As this examiner had the benefit of claims file review as well as objective examination, and provided a thorough rationale for his conclusion, the Board finds the July 2011 VA examination report is entitled to the greatest probative weight. The Veteran has reported a history of sustaining a hole in his nostril when he was hit in the face with a full sea bag with combat boots on top, which he contends caused or aggravated a hair lip/cleft palate with a sinus condition. Although he is competent to state his symptoms, the Veteran is not shown to possess any specialized experience such that he is qualified to render a medical diagnosis or medical opinion concerning the etiology or progression of any current hair lip/cleft palate with a sinus condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The disability at issue requires medical expertise to diagnose and evaluate. The only competent medical opinion of record with regards to the relationship of the Veteran's current hair lip/cleft palate and a sinus condition to service is the opinion of the July 2011 VA examiner. As that examining physician is an otolaryngologist and has specific training and expertise with ear, nose, and throat disabilities, the opinion rendered in the July 2011 VA examination report is entitled to greater weight than the Veteran's lay opinions. Further, while the Veteran contends that his current hair lip/cleft palate and sinus problems began and/or were worsened during active service with his claimed in-service nostril injury and continued thereafter with frequent sinus infections, a medical opinion is still required to link any claimed continuity of symptomatology with the current conditions. See Clyburn v. West, 12 Vet. App. 296, 301-302 (1999); see also Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As noted above, the most probative opinion of record fails to establish a link between the Veteran's current hair lip/cleft palate with a sinus condition and the reported injury in service. Given the above, the Board finds that the evidence in this case shows that the Veteran's hair lip/cleft palate is a congenital defect and clearly and unmistakably pre-existed his service and was not clearly and unmistakably aggravated during such. Likewise, there is no competent medical opinion linking any current sinus condition to any incident of his active service, to include the nostril injury that reportedly occurred therein. Accordingly, service connection for hair lip/cleft palate with a sinus condition is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for hair lip/cleft palate with a sinus condition is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs