Citation Nr: 1308583	
Decision Date: 03/14/13    Archive Date: 03/25/13

DOCKET NO.  08-33 973	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for traumatic septal deviation as a residual of nasal trauma.

2.  Entitlement to service connection for residuals of right ankle injury.



ATTORNEY FOR THE BOARD

T. Mainelli, Counsel



INTRODUCTION

The Veteran served on active duty from June 1972 to June 1975.

This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. 

The Veteran failed to report to a Board hearing scheduled in August 2012.  In November 2012, the Board received another request from the Veteran for an opportunity for a hearing before the Board.  A hearing was scheduled for March 2013, but the Veteran failed to report and did not timely request a postponement, or timely request a change of hearing date based upon good cause.  The hearing request, therefore, is considered withdrawn.  38 C.F.R. § 20.704(d).  

A review of the Virtual VA paperless claims folder does not reveal any additional documents pertinent to the claim at hand.

The issue of entitlement to service connection for residuals of right ankle injury addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The Veteran's currently manifested traumatic septal deviation results from trauma during active military service.


CONCLUSION OF LAW

The criteria for entitlement to service connection for traumatic septal deviation as a residual of nasal trauma have been met.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012).
REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran seeks to establish entitlement to service connection for traumatic septal deviation as a residual of nasal trauma.  Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  A disease must be shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge from service.  38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494- 97 (1997).  Disorders diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service.  38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

In general, service connection requires competent evidence showing: (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 be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires (1) evidence of current chronic disability; (2) evidence of a service-connected disability; and (3) evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). 

The claimant bears the burden of presenting and supporting his/her claim for benefits.  38 U.S.C.A. § 5107(a).  See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).  In its evaluation, the Board shall consider all information and lay and medical evidence of record.  38 U.S.C.A. § 5107(b).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant.  Id.  Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner."  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Notably, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility.  See 38 C.F.R. § 3.102.

A lay claimant is competent to provide testimony concerning factual matters of which he or she has firsthand knowledge (i.e., reporting something seen, sensed or experienced).  Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005).  Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

In Barr, the Court emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports the presence or absence of the alleged symptomatology.

However, there are clearly limitations regarding the competence of a lay claimant to speak to certain matters, such as those involving medical diagnosis and etiology.  See Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007) (noting that a layperson not competent to diagnose a form of cancer).  VA has defined competent lay evidence as any evidence not requiring that the proponent have specialized education, training or experience.  38 C.F.R § 3.159(a)(1).  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a layperson.  Id.  Further, competent medical evidence is defined as evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions.  38 C.F.R § 3.159(a)(2).

The facts of this case may be briefly summarized.  The Veteran has submitted a copy of a service treatment record (STR), dated July 17, 1972, which reflects a diagnosis of nose fracture (fx) that had been reduced.  This STR was not located in the original STRs provided by the National Personnel Records Center (NPRC).  The RO has not disputed the authenticity of this document, and the Board finds no reason to doubt the validity of this STR.

The Veteran has also submitted a picture of himself during service wearing a butterfly-type of bandage over his nose.  The RO has not directly doubted the authenticity of this picture.  In the opinion of the Board, the person reflected in this picture bears a very similar resemblance to an official picture of the Veteran located in his service personnel records (SPRs).  Thus, the Board finds that the person depicted in this picture is the Veteran.

In January 2012, a VA Compensation and Pension (C&P) examiner diagnosed the Veteran with a traumatic deviated septum.  This examiner, however, found that this disability was unlikely related to service due to the absence of a separation examination and medical treatment records since service.

This case is easily resolved.  The Veteran incurred traumatic nose injury during service diagnosed as a fracture requiring reduction.  He currently manifests a traumatic deviated septum.  There is no evidence of an additional nose injury.  Quite simply, the only potential cause of the currently manifested traumatic deviated septum occurred during service.  As such, the Board finds that the Veteran's currently manifested traumatic septal deviation results from trauma during active military service.  The claim is granted.

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  As the benefit sought on appeal has been granted in full, there is no need to discuss any potential duty to notify or duty to assist error.


ORDER

The claim of entitlement to service connection for traumatic septal deviation as a residual of nasal trauma is granted.


REMAND

The Veteran seeks to establish his entitlement to service connection for residuals of right ankle injury.  His STRs first reflect treatment for right ankle sprain in February 1974.  A May 5, 1975 STR reflects an evaluation for an additional right ankle injury, which refers to a prior evaluation not reflected in the STRs.  It is noted that one radiologist may have found questionable abnormalities.  An orthopedic consultation later that month provided a diagnosis of chronic ankle instability secondary to injury.  At the time of his separation from service, the Veteran reported continued ankle pain with running.  The last STR entry reflects that the Veteran had been wearing a cast based upon a diagnosis of probable old sprain. 

The Veteran was afforded VA C&P examination in January 2012.  An x-ray examination demonstrated mild arthritic change at the medial aspect of the right ankle, mild osteophyte formation at the tibiotalar joint, and a tiny heel spur.  The VA examiner found that the current right ankle disability was unlikely related to service due to the absence of a separation examination and medical treatment records since service.  

The Board finds that the January 2012 VA C&P opinion holds limited probative value and is inadequate for rating purposes.  First, it is unclear why the absence of a separation examination (which is factually incorrect) holds any importance due to the fact that the Veteran was wearing a right ankle cast upon separation.  Second, it does not appear that the examiner gave any consideration to the Veteran's postservice history description, which is not reflected in the examination report.  To date, the Board has found no evidence of record which calls into question the reliability of the Veteran's testimony.  Thus, the Board finds that additional VA examination is warranted from an examiner other than the physician who conducted the January 2012 VA C&P examination.

On remand, the Board observes that the Veteran has identified for the RO pertinent postservice treatment providers for his right ankle disability.  In his VA Form 9 received in October 2008, the Veteran indicated that he would forward his relevant records but, to date, the record does not contain any private postservice treatment records.  The Veteran has not responded to the RO's invitation to assist him in obtaining these records, which requires the Veteran to provide a written authorization for VA to obtain those records on his behalf.

The record clearly reflects that the Veteran incurred a right ankle injury in service, and had continued problems at the time of his service separation.  The Board understands the Veteran's expressed frustration in a VA denial of his claim, but highlights for him that the absence of postservice treatment records intereferes with an accurate medical assessment of his current residuals from those inservice injuries.  His cooperation in providing these records, or authorizing VA to obtain him on his behalf, may be vital for VA to provide a nexus opinion.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that a claimant cannot wait passively for VA assistance in circumstances where claimant may or should have information in obtaining the putative evidence).
Accordingly, the case is REMANDED for the following action:

1.  Assist the Veteran once again in associating with the claims folder all available private treatment records since discharge for his right ankle disability.

2.  Associate with the claims folder any pertinent treatment records from the Hampton VA Medical Center since September 25, 2008.

3.  Upon completion of the above, schedule the Veteran for additional VA examination from a different examiner than the physician who conducted the January 2012 VA examination.  The claims folder contents must be made available for review.  Following examination and interview of the Veteran as well as review of the claims folder, the examiner is requested to provide findings and opinions as requested below:

	a) clarify the diagnosis, or diagnoses, of all currently manifested right ankle disorders; and

	b) provide a medical opinion as to whether it is at least as likely as not that any current right ankle disability results from the documented injuries and treatment during active military service, to include whether any current x-ray findings could be attributable to those injuries.

In providing this opinion, the examiner must consider the following:
* the Veteran's treatment for right ankle sprain in February 1974;
* a May 5, 1975 STR reflecting that a radiologist may have found questionable abnormalities;
* a May 1975 orthopedic consultation providing a diagnosis of chronic ankle instability secondary to injury;
* treatment records in June 1975 reflecting the Veteran's report of continued ankle pain with running and that the Veteran had been wearing a cast based upon a diagnosis of probable old sprain; and
* the Board's general observation that the Veteran has been a reliable historian which must be taken into account when considering his report of postservice symptoms and treatment.

If the examiner cannot provide the requested opinions, he/she should explain why.

4.  Thereafter, readjudicate the claim.  If any benefit sought on appeal remains denied, the Veteran and his representative, if any, should be furnished a supplemental statement of the case and an appropriate period of time to respond.

No action is required of the Veteran until further notice.  However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim.  His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination and any pertinent private treatment records, is both critical and appreciated.  The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim.  38 C.F.R. § 3.655.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).




______________________________________________
DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs