Citation Nr: 1305322 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 05-02 969 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for residuals of deviated nasal septum, including nasal septal perforation. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Counsel INTRODUCTION The Veteran served in the United States Army National Guard from May 1992 to May 2004. He has verified periods of active duty for training from June 1992 to October 1992 and from July 1995 to November 1995. He also has periods of verified active duty from May 2003 to May 2004 and from October 2004 to October 2005. This matter initially came before the Board of Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, that denied entitlement to the benefit sought. A review of the claims file reveals the appeal was previously before the Board in January 2008, July 2010, and December 2010. It was remanded for further development on each occasion. The case was returned to the Board in November 2011. In a January 2012 decision, the Board denied entitlement to service connection for deviated nasal septum. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Thereafter, in September 2012, the Court granted a Joint Motion for Remand (Joint Motion) filed by representatives for both parties, vacating the Board's January 2012 decision and remanding the appeal to the Board for further proceedings consistent with the Joint Motion. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. 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 issue on appeal. FINDING OF FACT Although medical evidence indicates that the Veteran's nasal septal deviation is a developmental defect, competent evidence indicates that nasal septal perforation is as likely as not the result of superimposed injury or disease that occurred during his active military service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for nasal septal perforation are met as superimposed on a congenital deviated nasal septum. 38 U.S.C.A. §§ 1110, 1111, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Given the favorable disposition of the claim for service connection on appeal, the Board finds that all notification and development action needed to fairly adjudicate this appeal has been accomplished. Merits of the Claim The Veteran is seeking service-connected compensation benefits for residuals of a deviated nasal septum diagnosed and treated during his two periods of active duty service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, this requires (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Relevant records show that the Veteran, a member of the United States Army National Guard, was mobilized for active duty service in May 2003. Few service treatment records are available for this period, however, the Veteran's January 1994 National Guard enlistment examination report reflects normal sinuses. Additionally, the Veteran has denied any chronic nasal/sinus problems prior to this period of service. While on active duty, the Veteran complained of chronic nasal obstruction and was diagnosed with deviated nasal septum. In February 2004, he underwent a septoplasty to alleviate his symptoms. A May 2004 demobilization examination report (i.e., separation examination) reflects a 'diagnosis or defect' of status post deviated septum repair. Following surgery, the Veteran continued to complain of chronic nasal congestion as well as increased snoring at night. He filed the current claim for compensation in April 2004. A May 2004 VA examination report notes the Veteran still had a deviated nasal septum; chronic rhinitis and possible allergic disease were also diagnosed. Military orders dated in October 2004 show that the Veteran was remobilized for a one-year period of active duty to begin on October 18, 2004. In May 2005, while still on active duty, he underwent revision surgery for persistent left deviated nasal septum. Thereafter, a September 2009 VA examination report reflects subjective complaints of nasal obstruction, crusting inside the nose, snoring, and mouth breathing. While there was no deviation of the septum on examination, a three (3) millimeter perforation was noted within the midportion of the septum. Regarding the origin(s) of the Veteran's condition, the examining otolaryngologist opined that his deviated nasal septum could be congenital given the absence of any history of trauma to the nose. As to the nasal septal perforation, this "appears to have been the result of nasal septal surgery." The Veteran was reexamined in August 2010 by a different VA otolaryngologist. The examination report reflects it was the physician's opinion that it is more likely than not that the Veteran's deviated nasal septum is "developmental, i.e. happened around puberty around the time of the facial growth." This opinion was based on a lack of history of nasal trauma and the fact that septal deviations are common occurrences during puberty. Regarding the Veteran's current symptoms of nasal obstruction, chronic mouth breathing, snoring, and frequent head colds/sinusitis, the examiner attributed these to chronic rhinitis. He further noted that such symptoms were not the result of his previously deviated septum or his multiple septoplasties given that the septum was now straight and the nasal perforation small. No opinion was provided regarding the etiology of the perforation. A January 2011 VA examination report similarly concludes that the Veteran's current mild nasal obstruction with associated symptoms is less likely related to his military service, to include the February 2004 and May 2005 septoplasties. This opinion is reiterated in a March 2011 addendum report. In addition to mild nasal obstruction, the January 2011 examination report reflects a diagnosis of status post nasal septal surgery times two with result of midline nasal septum and tiny nasal septal perforation. Inasmuch as the foregoing evidence demonstrates that a deviated nasal septum was not noted on the Veteran's January 1994 enlistment examination and that he was diagnosed with this condition during service, service connection would appear to be warranted for this condition. See 38 C.F.R. §§ 3.303(a), 3.304(b). Pertinent to this appeal, however, the September 2009 and August 2010 VA examination reports indicate that the Veteran's deviated nasal septum, while first diagnosed on active duty, represents a "congenital" or "developmental" condition. Congenital or developmental abnormalities are not 'diseases or injuries within the meaning of applicable legislation' and, hence, do not constitute a disability for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9 (2012). VA's General Counsel has held, however, that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted 'aggravation' of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303(c), 3.306. Further, although service connection cannot be granted for a congenital or developmental defect, such a defect can be subject to superimposed disease or injury, and, if that superimposed disease or injury occurs during military service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90. As to whether the Veteran's deviated nasal septum represents a 'defect' or 'disease,' the Board notes that 'defects' are generally defined as structural or inherent abnormalities or conditions which are more or less stationary in nature. Id. Conversely, a 'disease' suggests a condition that is capable of improvement or deterioration. Id. In this case, the medical evidence indicates the Veteran likely developed his septal deviation during puberty when he experienced facial growth. As there is nothing to suggest further change in the structure of the septum since puberty (absent nasal trauma due to external factors), the Board finds the Veteran's deviated nasal septum is more appropriately characterized as a congenital defect, within the meaning of 3.303(c) and 4.9, rather than a congenital disease. The Board acknowledges that deviated nasal septum was not noted on the Veteran's January 1994 enlistment examination. 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 evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). However, the presumption of soundness does not apply to congenital defects. Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009). Thus, the Board need not consider whether clear and unmistakable evidence demonstrates that his deviated nasal septum was not aggravated by service, and service connection may not be granted for deviated nasal septum. As noted above, however, service connection may still be granted for any superimposed disease or injury. VAOPGCPREC 82-90. Here, medical evidence reflects that the Veteran has other current nasal conditions, including nasal septal perforation, rhinitis, and mild nasal obstruction. The relevant inquiry is therefore whether any of these disabilities may be etiologically linked to some event, injury, or disease incurred in or aggravated by service. First addressing the matter of in-service injury, disease, or event, the Board notes that the Veteran underwent a septoplasty during both of his periods of active duty service. As for whether either of these surgeries resulted in superimposed injury or disease, August 2010 and January 2011 VA examination reports reflect that chronic rhinitis and mild nasal obstruction are less likely than not related to the Veteran's in-service surgeries. Conversely, the September 2009 and January 2011 VA examination reports indicate that the Veteran's currently diagnosed nasal septal perforation is as likely as not the result of his in-service septoplasties. There is no competent evidence of record contradicting these opinions. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102 (2012). See also 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Given the facts of this case, and resolving all reasonable doubt in the Veteran's favor, the Board concludes that the criteria for service connection for nasal septal perforation are met as the competent evidence indicates such disability is the result of superimposed injury or disease that occurred during a period of active military service. ORDER Service connection for nasal septal perforation is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs