Citation Nr: 1306245 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 08-27 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a lumbar spine disability, claimed as a chronic low back strain with mild degenerative changes. 2. Entitlement to service connection for residuals of a fractured nose, to include a sinus disability. 3. Entitlement to service connection for tension headaches, to include as secondary to the residuals of a fractured nose and lumbar spine disability. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and Veteran's spouse ATTORNEY FOR THE BOARD A. Ishizawar, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1965 to February 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Milwaukee, Wisconsin Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied claims of service connection for a lumbar spine disability, residuals of a nose fracture, and tension headaches. In July 2011, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In January 2012, the case was remanded for additional development. The case has now been returned to the Board for further appellate action. As an initial matter, the Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. At present there are no additional documents pertinent to this appeal in Virtual VA. FINDINGS OF FACT 1. A lumbar spine disability, claimed as a chronic low back strain with mild degenerative changes, was not manifested in service; arthritis of the lumbar spine was not manifested in the Veteran's first postservice year; and his current lumbar spine disability is not shown to be related to his active service. 2. Residuals of a fractured nose, to include a sinus disability, were not manifested in service; and the Veteran's current sinus disabilities are not shown to be related to his active service, to include the fractured nose sustained therein. 3. It is not shown that a chronic disability of tension headaches was manifested in service; and the current disability of tension headaches is not shown to be related to the Veteran's service. 4. Residuals of a fractured nose, to include a sinus disability, and a lumbar spine disability are not service connected; a threshold legal requirement for establishing a secondary service connection claim for tension headaches is not met. CONCLUSIONS OF LAW 1. Service connection for a lumbar spine disability, claimed as a chronic low back strain with mild degenerative changes, is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. Service connection for residuals of a fractured nose, to include a sinus disability, is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 3. Service connection for tension headaches, to include as secondary to the residuals of a fractured nose and lumbar spine disability, is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claims prior to their initial adjudication. An April 2007 letter explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing. This letter also informed the appellant of disability rating and effective date criteria. The Veteran has had ample opportunity to respond/supplement the record and he has not alleged that notice in this case was less than adequate. Regarding VA's duty to assist in the development of his claim, the Veteran's service treatment records (STRs), service personnel records, and pertinent postservice treatment records have been secured. His statements in support of the claim are also of record. After a careful review of such statements, the Board has concluded that no available, pertinent evidence has been identified that remains outstanding. The United States Court of Appeals for Veterans Claims (Court) has held that at a hearing on appeal, a Veterans Law Judge has a duty to explain fully the issues and a duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The transcript reflects that at the July 2011 Travel Board hearing, the undersigned set forth the issues to be discussed at the hearing and sought to identify any further development that was required to help substantiate the Veteran's claims. As noted in the Introduction, the Board remanded this appeal for further development in January 2012. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.102(c)(2), nor have they identified any prejudice in the conduct of the hearing. The Board acknowledges in this regard the Veteran's November 2011 Travel Board hearing testimony indicating that additional records might be available in the form of a claim for Worker's Compensation. However, the Veteran was sent a letter in January 2012 asking that he provide a release of information sufficient to allow VA to attempt to obtain those records; he did not respond. The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If the Veteran wished help in obtaining the records, he was obligated to provide all information necessary to obtain the evidence. Id. The Board has otherwise reviewed the pertinent evidence of record for references to additional treatment reports not of record, but likewise finds nothing to suggest that there is any outstanding evidence pertinent to the Veteran's appeal. Also, the Veteran was afforded VA medical examinations in November 2007, December 2009, and in January 2012. Concerns as to the adequacy of the November 2007 and December 2009 VA examinations were raised at the November 2011 Travel Board hearing. Accordingly, the claims were remanded for new VA examinations completed in January 2012. The Board finds that the January 2012 VA examinations are adequate because, as will be shown below, they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because they describe the claimed disabilities in sufficient detail to allow the Board to make a fully informed determination. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (noting that VA must provide an examination that is adequate for rating purposes). Notably, neither the Veteran nor his representative has asserted that the January 2012 VA examinations are inadequate. Accordingly, the Board finds that there was substantial compliance with the January 2012 Board remand directives (see Stegall v. West, 11 Vet. App. 2689 (1998)), and that the record as it stands includes adequate competent evidence to allow the Board to decide these matters, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Board will address the merits of the claims. B. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to substantiate a claim of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A disorder also may be service connected if the evidence of record shows that the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b). A demonstration of continuity of symptomatology is an alternative method of demonstrating the second and/or third elements discussed above. See Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, the Secretary of VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Section 1154(b) does not create a presumption of service connection for a combat veteran's alleged disability; the appellant is still required to meet the evidentiary burden as to service connection, such as whether there is a current disability or whether there is a nexus to service, both of which require competent medical evidence. Collette v. Brown, 82 F.3d 389, 392 (1996); cf. Reeves v. Shinseki, 682 F.3d 988 (Fed.Cir.2012) (holding that, when the veteran asserts that the symptoms of his disability began while in service, the combat presumption may support service connection under a theory of chronicity). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Lumbar spine disability In various statements, including their testimony at the July 2011 Travel Board hearing, the Veteran and his spouse have asserted that he suffers from a current lumbar spine disability that is related to his combat service in Vietnam, and in particular to carrying heavy packs in service. The Veteran's service personnel records, to include his DD 214 and DD 215, show he served in Vietnam and was awarded a Purple Heart Medal. His STRs are silent for any complaints, findings, treatment, or diagnoses related to the back. They do show that in August 1967 he complained of a "'funny feeling' in [his] crotch & genital area," and reported that he had been "lifting heavy objects & fear[ed] he [had] strained himself." The treatment record indicates that the Veteran was to follow with a doctor in the morning, but there are no follow-up notes of record. On January 1968 service separation physical examination, a clinical evaluation of the Veteran's spine and other musculoskeletal system was normal. January 1986 to January 2007 private treatment records from Thedacare Physicians Waupaca, and April 1986 to January 1995 private treatment records from Appleton Medical Center are silent for any complaints, findings, treatment, or diagnoses related to the lumbar spine. November 2003 to December 2007 private treatment records from Waupaca Chiropractic Center show that the Veteran presented initially in November 2003 for complaints related to the cervical spine, and received continuous treatment for such. In August 2005, the Veteran reported severe and constant pain in his right hip. It was noted that he had suffered a work injury a few days earlier, also in August 2005. On range of motion testing, the Veteran's lumbar spine was severely restricted in all directions with pain elicited in the lower spine mostly on the right. A lumbar X-ray was obtained; it showed a normal lordotic lumbar curve with no evidence of gross pathology or congenital anomaly. Lumbar sprain was diagnosed. After several follow-up visits, in September 2005, the Veteran's condition was noted to be resolved. A July 2005 private treatment record from Dr. R.P. shows that on review of the Veteran's past medical history, he denied having a history of spinal injury or disease, or chronic low back pain. The Board notes that this was just before the August 2005 work injury and subsequent treatment. August 2006 to June 2010 VA treatment records show that the Veteran reported to a VA clinic for an initial assessment in August 2006; he complained of intermittent low back pain. In October 2009, the Veteran sought treatment for left lower back pain; constipation was assessed. In November 2009, he reported again for chronic low back pain and noted that he was also now suffering from right groin pain; right inguinal ligament strain was assessed. On November 2007 VA examination, the Veteran reported a gradual onset of low back pain in service while carrying backpacks. He did not report any specific injury or trauma to the low back in service, and indicated that did not receive any treatment or evaluation for this condition in service. He did complain of continuous low back pain since service and noted that he had been seeing a chiropractor for this condition for the past 25-30 years. After a physical examination, the examiner diagnosed chronic low back strain with mild degenerative changes. He further stated that he could not provide an opinion as to the etiology of this diagnosis without resorting to mere speculation, as there was no listing of chronic low back pain in his STRs, private treatment records, or VA treatment records. The examiner noted that the Veteran had a documented low back injury following a lifting accident after service, but this resolved within an expected time frame. There were no indications that the Veteran was taking medication for his low back pain, but there was documented treatment of a chronic neck problem. The examiner concluded, "A nexus has not been established linking his service activities with his current low back complaints." In a September 2008 letter, the Veteran's private chiropractor, M.J.L., D.C., stated that she had been treating the Veteran since 2002 and, on average, he complained of flare-ups of spinal complaints 4-6 times a year. She stated that per the Veteran's report, his only spinal injury was in service where he carried packs that often exceeded 80 pounds, and that since service he had suffered from continuous back pain that was exacerbated dependent upon the activity he was engaged in. M.J.L., D.C. further stated that "[w]ith the exception of a Worker's Compensation case in 2005, [the Veteran's] pain has been of an insidious onset." She then asked that the Veteran be considered for military disability, as his prognosis was one of continued degeneration of the spine with occasional exacerbations. On December 2009 VA examination, the examiner interviewed the Veteran, reviewed his claims file (to include his STRs, private, and VA treatment records), and conducted a physical examination of the Veteran. Based upon the foregoing, he provided the following diagnosis, normal lumbar spine with a minimal degenerative joint disease, degenerative disc disease apropos for age and only intermittent acute sprains, and opined that "no portion" of his lumbar spine condition was "in part due to service without resort to mere speculation," as the Veteran had reported having long intervals of periods where he was free from treatment, and his chiropractor had documented flare-ups after service that had mechanisms of injury from work and age. On January 2012 VA examination, the Veteran repeated his complaints as before, but noted that he had a significant back problem in the 1990s, which resulted in him being off work for several months, and a work-related back injury in August 2005. After interviewing and examining the Veteran, and reviewing his claims file, the examiner assessed chronic low back pain, probably on an age-related degenerative basis. He further opined that the Veteran's chronic low back pain constituted a mild impairment, but not a disability although he suffered temporary disabilities during periods of aggravation, which occurred relatively infrequently. The examiner further noted that the Veteran's symptoms and 2007 X-ray findings were "relatively unremarkable for an individual of 66 years of age." Regarding the matter of whether there was a nexus between the Veteran's current low back complaints and his service, the January 2012 VA examiner opined that it was "less likely as not" that the Veteran's current back problems were related to an injury sustained during his active service. He explained that the Veteran's back problems at that time were related to a strain, not a specific injury, and that he subsequently had two significant back injuries, one of which occurred in the 1990s, for which there are no records, and another in August 2005, for which there are records. Despite these postservice back injuries, the examiner stated that it was "more likely" that the Veteran's current symptoms were related to age-related degeneration of his intervertebral disks and not to any specific injury. The examiner noted that the August 2005 work-related injury was of a brief duration, and was less likely as not related to his current back problems. Although the January 2012 VA examiner found that the Veteran does not have a lumbar spine disability, the record establishes that he has a lumbar spine disability. Notably, the January 2012 VA examiner, himself, found that the Veteran's lumbar spine demonstrated degenerative changes that suffer from temporary disability during periods of aggravation. Such findings are sufficient to establish that the Veteran has, at some point during the appeal period, had a lumbar spine disability for which service connection may be granted. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of a current disability in a service connection claim "is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim"). The evidence also shows that the Veteran received a Purple Heart Medal, establishing that he served in combat. Governing law (i.e., 38 U.S.C.A. § 1154) provides for relaxed evidentiary standards for veterans who served in combat. Notably, his reports of carrying heavy loads are consistent with the circumstances of his service. Therefore, an in-service injury has been established and what the Veteran must still show to establish service connection for his lumbar spine disability is that such disability is related to service, to include his combat service therein. The Veteran and his spouse have stated that he began experiencing chronic low back pain in service. As was noted above, a disorder may be service connected if the evidence of record shows that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). A veteran is competent to testify regarding facts or circumstances that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2); see also Layno v. Brown, 6 Vet. App. 465, 471 (1994) ("[C]ompetent testimony is . . . limited to that which the witness has actually observe, and is within the realm of his personal knowledge"). However, findings of competency and credibility are two distinct matters, and after a careful review of the evidence, the Board finds that while the Veteran and his spouse are competent to testify as to observable symptoms, like back pain, their statements that he has had low back pain since service are not credible. Significantly, the Veteran's STRs, to include his January 1968 service separation physical examination report, are silent for any complaints, findings, treatment, or diagnoses related to the back. Although the Veteran has conceded that he did not seek treatment for back pain in service, it is noteworthy that he did seek treatment for complaints related to his crotch and genital area after lifting a heavy object and straining himself in service. Such evidence tends to suggest that if the Veteran had suffered from back pain in service, as he now alleges, he likely would have sought treatment for such in service. Similarly, the claims file contains an extensive record of postservice treatment records, dating as far back as January 1986. While these records document treatment for a variety of conditions, including complaints related to the cervical spine, the first postservice clinical notation of problems related to the lumbar spine was not until August 2005, when the Veteran sought treatment for complaints related to the right hip and reported having been in a work injury a few days earlier. It is also noteworthy that just one month prior to this incident, in July 2005, the Veteran specifically denied having a history of spinal injury or disease, or chronic low back pain, and that it was not until almost one year later, when the Veteran filed his claim for service connection in August 2006, that he began to assert that his low back pain had its onset in service. In Rucker v. Brown, 10 Vet. App. 67, 73 (1997), the Court held that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate. Specifically, the Court observed that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. Thus, it would appear logical that had the Veteran's low back pain began in service, as he and his spouse now claim, he would have reported the history of this disability thus to his July 2005 treatment provider. Having found the Veteran's statements, as well as those of his spouse's, that his lumbar spine disability had its onset in service not credible (because such statements are inconsistent with more earlier, more contemporaneous, reports), the Board finds that service connection for a lumbar spine disability on the basis that such disability became manifest in service and persisted since is not warranted. As there is no competent evidence that arthritis in the low back was manifested in the first postservice year, there is no basis for considering (and applying) the 38 U.S.C.A. § 1112 chronic disease presumptions (for arthritis). Regarding whether the Veteran's lumbar spine disability is otherwise related to his service, to include his combat service therein, the record includes both medical evidence that potentially supports the Veteran's claim, and medical evidence that is against the claim. When evaluating this evidence, the Board must analyze its credibility and probative value, account for evidence which it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The evidence that potentially supports the Veteran's claim consists of the September 2008 letter from M.J.L., D.C. It is significant to note that this letter does not include an opinion linking the Veteran's current lumbar spine disability to his service; rather it requests that consideration be given to granting the Veteran military benefits for his lumbar spine disability. In making this request, M.J.L., D.C., notes that the Veteran carried heavy packs on his back in service and has, as a result, suffered from continuous back pain ever since. These statements were made based upon the Veteran's comments to her and, as was discussed above, the Board does not find the Veteran's statements that he has had continuous low back complaints since service to be credible. Because the Court has routinely held that medical opinions, which are based on an inaccurate history provided by the Veteran, may not have any significant probative value, any inferences made from M.J.L., D.C.'s September 2008 letter regarding the etiology of the Veteran's lumbar spine disability is speculative and without probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Swann v. Brown, 5 Vet. App. 229, 233 (1993); see also Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (noting that the Board may reject a medical opinion/finding that is based on facts provided by the Veteran which have been found to be inaccurate or because other facts present in the record contradict the facts provided by the Veteran which formed the basis for the opinion). The evidence weighing against the Veteran's claim consists of the January 2012 VA examination report wherein the VA examiner who reviewed the entire claims file, including the various medical opinions already of record, opined that the Veteran's current back problems were "less likely as not" related to his service, and instead were "more likely" related to age-related degeneration of the intervertebral disks. In evaluating medical opinions, the Board may place greater weight on one medical professional's opinion over another's depending on factors such as reasoning employed by the medical professionals, and whether or not and to what extent they review prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). Here, the Board places greater weight on the January 2012 VA examiner's opinion as it was provided by a physician (who by virtue of training and experience is eminently qualified to offer this opinion); contains a complete description of the lumbar spine disability; reflects familiarity with the clinical data and the Veteran's complete medical history; and contains a complete explanation for the rationale of his opinion. Furthermore, it is supported by the opinion of the December 2009 VA examiner who, although he ultimately concluded he could not provide a medical opinion without resorting to mere speculation, did also indicate that the Veteran's lumbar spine exhibited minimal degenerative joint disease and degenerative disk disease that was appropriate for someone of the Veteran's age who also had a history of intermittent acute sprains. As for the statements from the Veteran and his spouse relating his lumbar spine disability to his service, while they may be competent to testify as to the symptoms he experiences (such as back pain), it is beyond their competence as laypersons to opine that the Veteran's lumbar spine disability is related to any event or injury in service. The Veteran and his spouse are laypersons and lack the training to opine regarding medical etiology; this is a question that is medical in nature and may not be resolved by mere lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (finding that whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court). Based upon the foregoing, the preponderance of the evidence is against a finding of a nexus between the Veteran's lumbar spine disability and his service, to include his combat service therein. Accordingly, the appeal seeking service connection for a lumbar spine disability must be denied. Residuals of a fractured nose In the Veteran's August 2006 informal claim for service connection, he indicated that he suffered from sinus problems related to having his nose broken three times. In his March 2007 VA Form 21-526, "Veteran's Application For Compensation And/Or Pension," he stated that he had been suffering from continuous nose/sinus problems after breaking his nose during boot camp in December 1968, when he was hit in the nose with a rifle. To support these assertions, the Veteran submitted lay statements from three of his former servicemen. Specifically, E.B. stated in a letter received in July 2007, that he recalled the Veteran breaking his nose after being hit in the face with a rifle. J.C. stated in a letter received in July 2007, that he recalled the Veteran breaking his nose in a fight with another person. J.B. stated in a letter received in October 2008, that he recalled the Veteran being in a fight with another marine in November 1965 during boot camp, that the Veteran broke his nose after being hit in the face with a rifle, and that the Veteran's nose was broken another time by a drill instructor. The Veteran's service personnel records and STRs are silent for any complaints, findings, treatment, or diagnoses related to the nose/sinuses. On January 1968 service separation physical examination, clinical evaluations of his nose and sinuses were normal. Although there is no official documentation of a fractured nose in service, the Board finds that the evidence of record, which includes the Veteran's credible sworn testimony and the lay statements he submitted from individuals with whom he served, tends to support (rather than contradict) that he injured his nose in service. Accordingly, it is not in dispute that the Veteran injured his nose in service. Based on the evidence of record, which will be discussed in greater detail below, it is also not in dispute that he is presently being treated for a variety of conditions related to the sinuses, including recurrent nasal polyps, rhinitis, and rhinosinusitis. What he must still show to establish service connection for his current sinus disabilities is that one or all of them is related to his fractured nose in service. Thus, the current disability and in-service injury elements of a service connection claim have been established. As noted, the Veteran asserts he has had continuous problems with his sinuses/nose ever since injuring it in service. January 1986 to January 2007 private treatment records from Thedacare Physicians Waupaca, April 1986 to January 1995 private treatment records from Appleton Medical Center, and April 1996 to February 2006 private treatment records from Riverside Medical Center show that in March 1986, the Veteran was seen for complaints related to a plugged nose. His right sinus was tender, and it was noted that he had a five month history of the same. It was also noted that he had a history of a fractured nose many years earlier, and had always had trouble breathing out of the right side of his nose. Nasal polyp, possible sinusitis, due to an overuse of vasal constrictors was assessed; he was referred to a specialist for treatment. An April 1986 X-ray of the sinus showed deviation of the nasal septum to the right with no bone destruction identified. He then underwent a nasal reconstruction, also in April 1986. In April 1992, the Veteran again complained of recurrent nasal congestion. It was noted that his right nose was almost totally plugged, and that he had a history of septoplasty in 1986. Recurrent hypertrophic rhinitis was assessed. The Veteran was referred to a specialist for treatment in June 1992, whereupon it was noted that he had chronic allergic rhinitis with marked hypertrophy of both inferior turbinates. It was additionally noted that the Veteran was a chronic user of nose sprays and had been advised in the past to avoid these. Under anesthesia, the Veteran's inferior turbinates were cauterized and shrinked, resulting in marked improvement of his nasal airways. He was instructed in nasal care and the avoidance of nose blowing. In January 1995, a CT scan of the Veteran's sinuses was performed. It showed no evidence of acute sinusitis and very minimal thickening at the base of the right maxillary sinus. There were patent osteomeatal complexes bilaterally. In September 1995, chronic recurrent sinusitis was assessed. In April 1996, the Veteran underwent bilateral submucosal resections of the turbinates. In January 2000, the Veteran was treated for acute sinusitis with secondary bronchitis. In August 2002, it was noted that the Veteran had a past history of allergic rhinitis associated with overuse of topical vassal constrictors; rhinitis medicamentosa was assessed. August 2006 to June 2010 VA treatment records show that the Veteran reported to a VA clinic for an initial assessment in August 2006; he related that he had injured his nose in service, complained of sinus congestion, and reported the use of nasal sprays. He also reported that he had had three operations on his nose without significant improvement. On physical examination, nasal mucosal edema and slight right nasal septal deviation were observed. An X-ray was obtained; it showed no gross evidence of fracture, but there was a suggestion of minimal septal deviation. In July 2007 and in June 2008, chronic rhinitis was assessed. In January 2009, the Veteran reported that he had experienced a syncopal episode while having a bowel movement at home and injured his nose in the process. He was treated at a private hospital with sutures placed over the nasal bridge. An X-ray was obtained; it showed a displaced fracture of the nasal bone that was thought to possibly be old. Nasal fracture was assessed with the Veteran declining further evaluation of his slight nasal septal deviation. In July 2009, the Veteran returned for follow-up treatment of his rhinosinusitis; he reported a positive response with his current treatment. The foregoing evidence, indeed, indicates that the Veteran has a long history of nasal/sinus problems. At the July 2011 Travel Board hearing, the Veteran's representative argued that such history tends to corroborate a finding that the Veteran has had continuous nasal/sinus problems since his nasal fracture in service. In particular, she pointed to the March 1986 private treatment record, wherein it was noted that he had a history of a fractured nose and had always had trouble breathing out of the right side of his nose, as supportive evidence for such a claim. In December 2009, the Veteran was provided a VA examination to ascertain whether any of his current nasal/sinus disabilities could be considered residuals of his nasal fracture in service. The examiner opined that the Veteran did not have any current sinus condition by history or examination, and stated that he did not have any ongoing nasal obstruction. The examiner further opined that any current polyps and nasal airway were more related to nonservice-connected conditions of vasomotor rhinitis and recurrent polyp formations, which had multiple etiological explanations, and were not post-trauma. In January 2012, the Board noted that the December 2009 VA examination was inconsistent in not finding a current sinus disability when the evidence of record clearly contained impressions of chronic rhinitis and rhinosinusitis during the pendency of the claim. Accordingly, the claim was remanded for another VA examination, which took place also in January 2012. On January 2012 VA examination, the Veteran was noted to have a traumatic deviated nasal septum and chronic rhinitis (both diagnosed in 1986). After interviewing and examining the Veteran, and reviewing his claims file (to include his extensive treatment records therein), the examiner provided several opinions. First, the examiner opined that the Veteran's nasal fracture was "less likely as not caused by or [a] result of service." The examiner explained that despite the Veteran's lay statements and those from his fellow servicemen indicating that he fractured his nose in service, his STRs were silent for any nasal complaints. The examiner further noted that the Veteran's medical records were silent for any nasal complaints until March 1986 whereupon he complained of a 5-month history of a plugged nose. This, the examiner noted, was 20 years after his separation from service. Furthermore, private treatment records from 1986 to 1996 were positive for a nasal septal deformity, but did not state whether such was congenital or secondary to trauma. The nasal deformity noted in April 1986 did not include a nexus to the Veteran's service and it was not until January 2009 that the Veteran was documented to have a nasal fracture due to an injury sustained in the same month. Second, the examiner opined "with a reasonable degree of medical certainty" that the Veteran's chronic rhinitis was not a residual of a fractured nose. The examiner explained that nasal obstruction may be generally divided into mucosal and structural causes. He was noted to have undergone a procedure for structural causes due to a deviated septum that did not improve the obstruction issues. The Veteran also had three procedures for nasal mucosal causes, two of which occurred after the septoplasty and symptoms of rhinitis, although initially improved/resolved, returned. Further, the Veteran has recurrence of hypertrophic nasal tissue after removal that shows no relationship to his previously repaired nasal septum. Nasal mucosa, the examiner explained, increases (hypertrophy) from chronic irritation and, by record, the Veteran showed first showed signs of nasal irritation (of 5 months duration) in 1986. Since then, he has had ongoing complaints of chronic nasal irritation. The examiner then explained that if the irritation was due to a nasal deviation (a structural cause), this should have resolved with the 1986 septoplasty, which it did not. The Veteran is on chronic nasal steroid inhalants due to chronic rhinitis for chronic nasal irritation starting in 1986; this is not related to the Veteran's deviated nasal septum but to his recurring enlargement of the nasal tissue. The examiner again emphasized that there is no relationship between the Veteran's chronic rhinitis for enlargement of nasal tissue and his deviated nasal septum by observing that the former symptoms would have resolved with the initial septoplasty, which they did not. The examiner then noted that there was no evidence, to include by X-ray or CT scan, to show that the Veteran had acute or chronic sinusitis. Third, the examiner opined that that it was "less likely as not" that the Veteran had any diagnosed residuals of a fractured nose that had its onset during his active duty service, or was otherwise related to his active duty service, to include his reported nasal fracture therein. The examiner explained that the only confirmed nasal fracture occurred between August 2006 and January 2009; this was confirmed by nasal X-rays. Prior X-rays/CT scans showed only a deviated septum to the right without indicating whether it was congenital or the result of a prior nasal fracture. There were no nasal complaints in service and the first postservice nasal complaint was not until 1986. The Veteran's nasal complaints also did not resolve after the 1986 septoplasty, and required additional surgical intervention in 1992 and in 1996. This, the examiner noted, was consistent with ongoing irritation from environmental factors and thus suggested that they were not related to the Veteran's remote service. In light of the January 2012 VA examination report, and the lack of competent evidence to the contrary, the Board finds that while the evidence does suggest that the Veteran has had continuous nasal/sinus complaints since at least 1986, such complaints are not consistent with that which would be expected from one who suffered a nasal fracture in service but instead are related to other, non-service related etiological factors. Significantly, the January 2012 VA examiner opined that the Veteran's chronic rhinitis was not related his service, or to any fractured nose therein, and explained that it was instead related to the recurring enlargement of his nasal tissues. He further explained that the recurring enlargement of the Veteran's nasal tissues was also not the result of his service, as a fractured nose would have resulted in a structural problem and, if there was a structural problem, the initial septoplasty in 1986 would have corrected the problem, but it did not and nasal/sinus problems have persisted. Similarly, the January 2012 VA examiner opined that the Veteran's deviated septum is not related to his service or to any fractured nose therein. Although the examiner's opinion also tended to discount a finding that the Veteran had suffered a fractured nose in service (a fact which has already been established by the evidence of record), the Board finds it more significant to note that in opining that the Veteran's deviated septum was not related to his service, the examiner explained that because the Veteran's nasal complaints did not resolve subsequent to the 1986 septoplasty for the deviated septum, this suggested that his ongoing irritation was due to environmental factors, and not to the deviated septum. In summary, while the Veteran is competent to report that he has had continuous nasal/sinus problems since his separation from service, he is not competent to opine as to whether such symptoms are related to the nasal fracture he sustained in service, or are otherwise related to his service. As was previously noted, the Veteran is a layperson and lacks the training to opine regarding medical etiology; the question of whether a symptom may be etiologically related to an in-service event is one that is medical in nature and may not be resolved by mere lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). He has not submitted any medical evidence to support his claim. The Board finds the Veteran's statements to be competent and credible regarding his nasal symptoms. However, when these statements are viewed in light of all evidence of record, lay and medical, the Board finds that the January 2012 VA examiner's opinion has the most probative weight. For example, the 2012 VA examiner provided a well reasoned explanation for finding that the Veteran's current nasal disability is not related to service, to include discussing the intricacies of the structural problems of his nose and what the 1986 septoplasty would have corrected. See e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) ("[An adequate] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two."). Based upon the foregoing, the preponderance of the evidence is against a finding of a nexus between the Veteran's current sinus disabilities and his service, to include his fractured nose therein. Accordingly, the appeal seeking service connection for residuals of a fractured nose must be denied. Tension headaches The competent (medical) evidence of record shows that the Veteran has a diagnosis of chronic intermittent tension headaches. See November 2007 VA examination report. Thus, the evidence establishes a current disability. It is the Veteran's contention that such disability is either directly related to his service or to his lumbar spine disability and/or residuals of a fractured nose. Regarding the Veteran's first theory of entitlement, direct service connection, his STRs show that in August 1967, he was referred for treatment by an ophthalmologist after complaining of constant generalized headaches and blurred vision in both eyes for two months. The Veteran contends that his current tension headaches are related to this in-service complaint of generalized headaches. It is significant to note, however, that the Veteran has not asserted that he has suffered from headaches continuously since this one-time complaint in service, and indeed, his subsequent STRs, to include his January 1968 service separation physical examination (which includes a normal neurological clinical evaluation), are silent for any additional complaints of or treatment for headaches. In November 2007, the Veteran was referred for a VA neurological examination to determine the etiology of his current chronic intermittent tension headaches. After interviewing the Veteran, conducting a physical examination, and reviewing the Veteran's claims file (to include the various treatment records contained therein), it was the examiner's opinion that the Veteran's current headaches were "less likely than not" related to his complaints during service. She explained that the Veteran's in-service complaints of headaches were "determined to be due to the need for glasses," and noted that he continued to wear glasses. The Veteran was provided another VA examination in January 2012, wherein the examiner opined that it was "less likely as not" that the Veteran's current headaches had their onset in service. He explained that the Veteran's STRs showed a single complaint for headaches that were determined to be related to his blurry vision; this was acutely treated with no further complaints or care noted. The examiner further noted that more recent treatment records tended to show that the Veteran's current headaches were related to his cervical complaints and/or to a facial trauma sustained in 2009. As the November 2007 and January 2012 VA medical opinions were by physicians (who by virtue of training and experience is are qualified to offer these opinions), reflect familiarity with the entire record as well as the Veteran's past medical history, and include an explanation of the rationale for the opinions, they have substantial value and the Board finds the opinions persuasive. Significantly, there are no opinions to the contrary. The Board also finds that the Veteran has not had the requisite training or knowledge to provide competent medical evidence regarding the etiology of his tension headaches. 38 C.F.R. § 3.159(a) (2012); see Jandreau, 492 F.3d at 1376-77 (considering evidence supporting a service-connection claim, the Board must consider, on a case-by-case basis, whether the veteran's particular disability is the type of disability for which lay evidence is competent). In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for tension headaches on a direct basis. As was noted above, the Veteran also asserts that his current chronic intermittent tension headaches warrant service connection on a secondary basis. Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. Inasmuch as service connection for a lumbar spine disability and for residuals of a fractured nose, to include a sinus disability, have been denied (see above), a threshold legal requirement for establishing secondary service connection is not met, i.e., it is not shown that either of the primary disabilities (lumbar spine disability and residuals of a fractured nose) alleged to have caused or aggravated the disability for which secondary service connection is sought (tension headaches) is service-connected. Accordingly, the claim of service connection for tension headaches as secondary to a lumbar spine disability and/or residuals of a fractured noise is legally insufficient, and must be denied as lacking legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). (CONTINUTED ON NEXT PAGE) ORDER Service connection for a lumbar spine disability, claimed as a chronic low back strain with mild degenerative changes, is denied. Service connection for residuals of a fractured nose, to include a sinus disability, is denied. Service connection for tension headaches, to include as secondary to the residuals of a fractured nose and lumbar spine disability, is denied. ____________________________________________ Paul Sorisio Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs