Citation Nr: 1235637 Decision Date: 10/15/12 Archive Date: 10/23/12 DOCKET NO. 02-22 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for residuals of a broken nose. 2. Entitlement to service connection for residuals of an injury to the face with bilateral eye disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from May 1966 to May 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2004 RO rating decision that essentially denied service connection for residuals of a broken nose (with a deviated septum and breathing problems) and for residuals of an injury to the face with bilateral eye disabilities. The Veteran provided testimony at personal hearings at the RO in June 2005 and September 2005. The Veteran also testified at a videoconference hearing before the undersigned member of the Board in March 2006. In July 2006, the Board remanded the case for additional development. After that development was completed, the Board issued a December 2009 decision denying the Veteran's claims. The Veteran appealed that Board decision to the United States Court of Appeals for Veterans Claims. Pursuant to a Joint Motion for Remand, an August 2010 Order of the Court vacated the Board's denial of the Veteran's claims and remanded them for readjudication in accordance with the Joint Motion. In June 2011, the Board remanded these matters for additional development. The Board notes at the time of the June 2011 remand, claims for service connection for bilateral hearing loss and for bilateral tinnitus were also remanded for additional development. Thereafter, a June 2012 rating decision granted service connection for bilateral hearing loss and for tinnitus. As that is a full grant of the benefits sought on those issues, they are no longer before the Board. FINDINGS OF FACT 1. Residuals of a nose fracture are not shown and a deviated septum and breathing problems are unrelated to a disease, injury, or event of service origin. 2. Other than refractive error, which is not a disability for VA disability compensation purposes, the competent medical evidence does not show any current bilateral eye disability, including dry eyes, due to an injury, disease, or event of service origin. CONCLUSIONS OF LAW 1. Residuals of a nose fracture were not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011). 2. A bilateral eye disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2011); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in October 2002 and in August 2011. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent June 2012 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained an examination with respect to the claim on appeal. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Factual Background A June 1967 entry noted that the Veteran was in an altercation and struck in the face. He denied loss of consciousness. He complained of pain only over the left eye. The clinician indicated that the Veteran had a large area over the left eye which was swollen shut and minimal swelling over the right eye. There was grating and abnormal mobility with a polyp at the bridge of the nose. A June 1967 X-ray of the Veteran's skull revealed a smooth rounded density from the roof of the left maxillary sinus with no evidence of fluid within the maxillary sinus. It was reported that there also appeared to be some soft tissue density along the lateral wall of the left maxillary sinus and that such could represent retention cysts. It was noted that it would be unusual for there to be an orbital floor fracture as there was no blood within the sinus that was visible. A subsequent June 1967 X-ray report showed no evidence of fracture through the floor of the left orbit or abnormality of the left maxillary sinus. On a medical history form at the time of his March 1968 separation examination, the Veteran checked that he had ear, nose, or throat trouble. The reviewing examiner indicated that he had throat trouble. On separation examination, there were notations that the Veteran's eyes were normal. Post-service private and VA treatment records show treatment for nose and eye problems. At a December 2002 VA nose, sinus, larynx, pharynx, scars, and facial injuries examination, the Veteran complained of drainage from his nose, occasional dizziness, a runny and stuffy nose, and nasal obstruction. There was no evidence of nasal fracture. There was no evidence of any blockage from any injury. Diagnoses were not specifically provided. The examiner indicated that from reviewing the Veteran's record, considering his history, and performing a physical examination, it was the examiner's opinion that the Veteran had no service-related injury to his nose, facial bones, or sinuses, and that the problems he was complaining about were not service-related. It was noted that the Veteran had allergic rhinitis. The examiner found that the Veteran had a mass in the back of his nasopharynx which might be the reason for his headaches and that was not service-related. The examiner determined that the Veteran should have a biopsy of the mass in the nasopharynx. The examiner commented that the current problems that the Veteran was having did not appear to be service-related, although the examiner denied having reviewed the Veteran's active duty record at that point in time. In a January 2003 letter, a VA physician noted that the Veteran suffered from facial trauma (nasal fracture) while in service, which led to a nasoseptal deviation, right airway obstruction, and subsequently hypertrophic adenoids and chronic eustachian tube dysfunction. The physician commented that the nasal fracture triggered the start of a chain of events that caused chronic nose and ear disease, eventually resulting in right cholesteatoma (skin cyst eroding away the bony ossicles) and conductive hearing loss due to ossicular problems. There is no indication by the VA physician of any review of the Veteran's claims file, to include service medical records. In January 2003, the Veteran underwent right tympanomastoidectomy, adenoidectomy, and septoplasty, for removal of a right cholesteatoma, right ear retraction with conductive hearing loss and nasal airway obstruction. An August 2003 VA examination report shows complaints of ringing in the ears and vertigo since the January 2003 surgery. The examiner commented that as mentioned previously on examination in December 2002, the Veteran's ears, nose, and throat problems were not service-related. A diagnosis was not provided. On VA eye examination in August 2003, the Veteran complained of periodic blurred vision without relief from artificial tears. He related a history of in-service head trauma with swollen eyes. The examiner diagnosed dry eyes with no keratitis and refractive error. The examiner commented that the Veteran manifested no ophthalmic residuals from the June 1967 head trauma. In June 2004, Dr. S. N. noted that the Veteran suffered right-sided facial and nasal fractures during service and since that time, had developed a problem with recurrent cholesteatoma as well as conductive hearing loss. Dr. S.N . stated that after a review of the records presented, to include the January 2003 statement from the VA physician, she opined that all of the Veteran's current problems resulted from the in-service injury. At personal hearings in June 2005, December 2005, and March 2006, the Veteran testified that the in service-head trauma caused him to develop a cyst that had to be surgically removed, and its removal resulted in hearing loss and tinnitus with loss of balance. He stated that after the in-service head injury he developed sinusitis, and he began snoring loudly. On VA eye examination in August 2006, the Veteran complained of occasional blurring of vision and blinking. The diagnoses were dry eyes with no keratitis and refractive error. On VA nose, sinus, larynx, and pharynx examination in August 2006, following an examination of the Veteran and a review of the Veteran's case file, to include the service medical records, the examiner diagnosed congestion of the nasal turbinates and chronic sinusitis. The examiner noted that the Veteran had trauma to the face in service and opined that it was at least as likely as not that such trauma would lead to chronic sinus problems. The examiner further noted that while X-rays did not reveal sinusitis, a CAT scan showed maxillary sinus thickening most likely secondary to sinusitis. Therefore, it was at least as likely as not that the Veteran did have problems with chronic sinusitis, particularly to the maxillary sinuses, and as trauma to that site could lead to development of sinusitis, sinusitis was at least as likely as not secondary to in-service trauma. The Veteran underwent a VA neurological examination in November 2006. The examiner found no neurological deficits, other than hearing problems, at the time of the examination. A VA ear disease medical opinion was obtained in September 2008. The examiner reviewed the Veteran's service medical records and noted the post-service medical opinions of January 2003 and June 2004, that linked the Veteran's current hearing problems to facial fractures sustained in service. The examiner found that facial and nasal fractures in service would explain post-service ear infections, cholesteatoma, and subsequent hearing loss problems. However, facial and nasal fractures were not documented in service and an opinion relating the Veteran's current problems to fractures in service would not be based on objective evidence. Following a review of the Veteran's claims file, to include the service medical records, a VA optometrist in March 2009 opined that it was at least as likely as not that the Veteran's periodic blurred vision was associated with his current pre-diabetic status. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2011). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2011). Service connection may be presumed for certain chronic diseases, including arthritis, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2011); 38 C.F.R. 3.307, 3.309(a) (2011). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. 38 C.F.R. § 3.303(b) (2011). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). The Veteran contends that he has nasal fracture residuals and facial injury residuals with associated bilateral eye disabilities that are etiologically related to a June 1967 in-service incident in which he was beaten in the head and face by a fellow service member. The Veteran now maintains that, following the attack, he was hospitalized for three days and two nights at a United States Army medical facility in Muenchweiler, Germany. The Board observes that June 1967 service medical records referencing the Veteran's attack and ensuing injuries have been associated with his claims folder. A search was made of hospital records for head and facial injuries for the entire month of June 1967. Residuals of a Broken Nose The Veteran contends that he has residuals of a broken nose, to include a deviated septum and breathing problems, due to in-service head trauma. On the basis of the service medical records, the Board finds that a nose fracture or residuals thereof were not affirmatively shown during service and service connection is not established. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2011). Although the Veteran's service medical records show that in March 1967 a clinician noted that the Veteran's nose and throat were stopped up and the Veteran snored excessively loud, that was attributed to chronic tonsillitis. While a June 1967 entry note recorded an injury to the head, along with grating and abnormal mobility with a polyp at the bridge of the nose, X-rays showed no evidence of fracture of the nose or skull. The evidence also did not show any manifestations sufficient to identify a chronic condition as residuals of a nasal fracture. The Board finds that sufficient observation to establish chronicity during service are not adequately supported by the service medical records. Residuals of a nose fracture were not found or diagnosed on separation examination. Therefore, the Board finds that a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2011). On VA examination in December 2002, the examiner indicated that the Veteran had allergic rhinitis, and a VA physician in January 2003 noted nasoseptal deviation, right airway obstruction, hypertrophic adenoids, and chronic eustachian tube dysfunction. The absence of documented complaints of residuals of a nose fracture from 1968 to 2002 is persuasive evidence against continuity of symptomatology under 38 C.F.R. § 3.303(b). Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). To the extent that the Veteran asserts continuity, the evidence of continuity fails not because of the lack of documentation, rather the assertion of continuity is less probative and persuasive than the negative evidence and continuity of symptomatology is not established under 38 C.F.R. § 3.303(b). Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Regarding the Veteran's statements to the effect that he suffers from residuals of a an in-service fracture to the nose, although the Veteran is competent to describe post-service nasal problems, a fracture is not a condition that is capable of lay observation, and the determination as to the presence of a fracture therefore is medical in nature and not capable of lay observation. Therefore, competent medical evidence is needed to substantiate the claim. Savage v. Gober, 10 Vet. App. 488, 498 (1997); Barr v. Nicholson, 21 Vet. App. 303 (2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical opinion. 38 C.F.R. § 3.159 (2011). As a lay person, the Veteran is not qualified through education, training, and expertise to offer an opinion on a medical diagnosis not capable of lay observation. Therefore, the Board finds the Veteran's statements that he has residuals of nose fracture incurred in service to be less persuasive because the service medical records did not detect any fracture upon examination following his head trauma. To the extent the Veteran's statements are offered as evidence of a nexus between the post-service diagnosis and the claimed in-service injury, the Board notes that where, as here, the determinative issue involves a question of a medical nexus or medical causation, a lay assertion of medical causation is not competent evidence. Grottveit v. Brown, 5 Vet. App. 91 (1993). The competent medical evidence in favor of medical causation is the January 2003 statement from a VA physician who noted that the Veteran fractured his nose in service, which caused nasoseptal deviation, right airway obstruction, and subsequently hypertrophic adenoids and chronic eustachian tube dysfunction. The Board discounts that opinion because the VA physician relied on the fact that the Veteran fractured his nose in service, while the service medical records, to include June 1967 X-rays, revealed no evidence of a nose fracture. As the record contradicts the facts relied on by the physician to form the basis of the opinion, the Board finds that the opinion is of little probative value. The Board is not bound to accept medical opinions that are based on history supplied by the veteran, where that history is unsupported by the medical evidence or based upon an inaccurate factual background. Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993). While a VA examiner in December 2002 determined that the Veteran suffered from allergic rhinitis, the examiner opined that the Veteran's nasal complaints were not service-related. The Board finds that the competent medical evidence does not support the claim because the evidence does not show any nose fracture during the Veteran's service and upon examination following head trauma, no nose fracture was detected. Objective examination also does not currently show any nasal fracture or residuals thereof. Therefore, the Board finds that the preponderance of the evidence is against the claim for service connection for residuals of a broken nose and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bilateral Eye Disabilities The Veteran contends that he currently suffers from a bilateral eye disability as a residual of an injury to the face in service. On the basis of the service medical records, a bilateral eye disability as residuals of an injury to the face was not affirmatively shown during service and service connection is not established. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2011). While the evidence showed swelling around the eyes, the evidence does not show any eye disability. An in-service injury to the face was documented in June 1967, along with findings of pain and swelling of the left eye which was swollen shut, as well as minimal swelling over the right eye. X-ray showed no evidence of fracture to the floor of the left orbit or abnormality of the left maxillary sinus, or the skull. The Board finds that the required combination of manifestations sufficient to identify a chronic condition, and sufficient observation to establish chronicity during service are not adequately supported by the service treatment records. A bilateral eye disorder as residuals of an injury to the face was not found or diagnosed on separation examination. His eyes and ophthalmoscopic examinations were normal and his distant vision was 20/20 in both eyes. Therefore, the Board finds that a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2011). After service, on VA eye examination in August 2003 the Veteran complained of periodic blurring of vision and dry eyes. He was diagnosed with dry eyes with no keratitis and refractive error. To the extent that the Veteran was diagnosed with refractive error, any loss of visual acuity due to refractive error is not a disability for the purpose of VA disability compensation. 38 C.F.R. § 3.303(c) (2011). As for a dry eyes and blurred vision, the absence of continuity of complaints from 1968 to 2003 interrupts continuity and is persuasive evidence against continuity of symptomatology under 38 C.F.R. § 3.303(b). Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Here, the evidence of continuity fails not because of the lack of medical documentation, rather the assertions of continuity are less probative than the negative evidence, namely, the service medical records demonstrating no eye disability on separation and the absence of symptoms for over 30 years. Therefore, service connection for a bilateral eye disability to include dry eye based on continuity of symptomatology under 38 C.F.R. § 3.303(b) is not established. As for service connection for dry eyes first diagnosed after service under 38 C.F.R. § 3.303(d), dry eyes due to eye pathology is a condition under case law that is capable of lay observation. The determination as to the presence of a such a condition therefore observable by a lay person. However, the determination as to the causation and diagnosis of that condition is medical in nature and not capable of lay observation. Therefore, and competent medical evidence regarding a service-related causation is needed to substantiate the claim. Savage v. Gober, 10 Vet. App. 488 (1997); Barr v. Nicholson, 21 Vet. App. 303 (2007). Although a layperson is competent to identify a simple medical condition, such as a dry eyes, the diagnoses of dry eye due to eye pathology is not simple medical condition because the diagnosis requires a medical examination, and diagnosis by a health-care professional, which a lay person is not qualified to do. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), The determinative question involves medical causation. Therefore, medical evidence of an association or link between a bilateral dry eye condition, first shown after service, and an injury, disease, or event in service, is needed and a lay assertion on medical causation is not competent evidence. Grottveit v. Brown, 5 Vet. App. 91 (1993). Competent medical evidence is required to substantiate the claim. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis or medical opinion. 38 C.F.R. § 3.159 (2011). Although the record contains competent medical evidence of diagnoses of dry eyes and a finding of periodic blurred vision, albeit by history provided by the Veteran, the evidence of medical causation opposes, rather than supports, the claim. The VA examiner in August 2003, found that the Veteran manifested no ophthalmic residuals from the June 1967 head trauma. Similarly, a VA optometrist in March 2009 opined that it was at least as likely as not that the Veteran's periodic blurred vision was associated with the Veteran's pre-diabetic status, as opposed to residuals of an in-service injury. The Board finds those opinions to be probative and persuasive. To the extent the Veteran relates his eye problems to service, the Veteran as a lay person is not qualified through education, training, or experience to express an opinion of medical causation. Therefore, the Board finds the Veteran's statements of causation and service relationship to be less persuasive than that of the medical examiners. Furthermore, to the extent that that Veteran claims service connection for refractive error of the eye, the Board notes that refractive error of the eye is not a disability for VA purposes which service connection can be granted. 38 C.F.R. § 3.303(c) (2011). There is no showing of any aggravation of any preservice refractive error of the eyes. The Veteran's vision was 20/20 at separation. Therefore, the Board finds that the preponderance of the evidence is against a finding that any current eye disability is the result of service or any inservice injury. As the Board may consider only competent evidence to support its findings as to medical causation, and as the preponderance of the competent medical evidence is against the claim for service connection for a bilateral eye condition, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for residuals of a broken nose is denied. Service connection for residuals of an injury to the face with bilateral eye disabilities is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs