Citation Nr: 1312818 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 96-42 073 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUE Entitlement to service connection for deviated nasal septum. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H.J. Baucom, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1987 to June 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Anchorage, Alaska RO has since maintained jurisdiction of the claim. The Veteran testified at a hearing before a Decision Review Officer in February 1999 and at a Board hearing at the RO in Little Rock, Arkansas in October 1999. These transcripts have been associated with the file. The Board has remanded the issue multiple times, in March 2000, March 2005, January 2008, June 2010 and July 2012 for further development which has been completed. FINDING OF FACT The Veteran's deviated nasal septum is a congenital defect, and no additional disability was superimposed upon that defect as a result of service. CONCLUSION OF LAW The criteria for service connection for deviated nasal septum have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance 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 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). December 2005 and May 2006 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The December 2005 letter notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The claim was subsequently adjudicated in supplemental statements of the case in January 2007, December 2011 and January 2013 The Veteran's available service treatment records, VA medical treatment records, and private treatment records have been obtained; she did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Board has reviewed the Veteran's "Virtual VA" file. The Veteran has not indicated, and the record does not contain evidence, that she is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in August 2006 and August 2012 ; the Veteran has not argued, and the record does not reflect, that the examinations when evaluated together were inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examinations were adequate as the examiners reviewed the record, evaluated the Veteran and provided an opinion with supporting rationale as to the cause of the Veteran's current disabilities. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be a medical diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Importantly, a layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran contends that she has a deviated septum as a result of an injury which occurred shortly before separation from service. At the October 1999 Board hearing she testified that she was hit in the face with a ball while playing baseball in Japan and this caused her deviated septum. She testified that the first time she was diagnosed with a deviated septum was after service. Service treatment records show no complaints, treatments, or diagnosis of deviated nasal septum or any injury to the face during service. However, the Veteran was treated for sinus complaints. Post-service, at a February 1996 neurology consultation the Veteran reported that she had sinus x-rays taken in Japan during service. A March 1996 CT of the sinuses found evidence of a deviation in the nasal septum to the left of the midline. In August 2006 a VA examination was conducted. Although the examiner reported that the Veteran underwent a CT scan of the sinuses in Japan in 1993-1994 which showed considerable amount of sinus blockage, and that the Veteran was found to have a deviated septum upon separation from service in 1995, these reports are unfounded. There are no CT scans of record from 1993 or 1994, and the exit examination was normal. The Board has not found that the Veteran was diagnosed with a deviated septum on separation from service. A December 2011 CT scan of the sinuses found deviation of the nasal septum as much as 6 mm towards the left without changes of nasal bone fractures to suggest this to be a traumatic change. In August 2012 a VA examination was conducted. The examiner found mild septum deviation of the nasal septum approximately 6 mm towards the left and that this type of finding supports a congenital etiology in the absence of deviation of the nasal bones structure itself. The examiner considered the Veteran's contentions that the deviated nasal septum was the result of being hit with a baseball bat however the condition represents more likely a congenital variation rather than being the result of a traumatic event. Additionally the examiner noted that the radiology report specifically stated that the nasal bones show good integrity and that the septum deviation is more likely of a congenital etiology. The examiner concluded that the septum deviation is less likely caused or aggravated during service as the findings support a congenital etiology. The Board finds that the weight of the probative medical evidence is that the nasal septum deviation is a congenital defect. Service connection is not allowed for a congenital defect or for aggravation of a congenital defect as congenital defects are not considered to be injuries or diseases within the meaning of the statue. 38 C.F.R. § 3.303(c). Service connection is possible if a disease or injury is superimposed over the congenital or developmental defect during service and there is a resultant disability. See Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993), citing Hunt v. Derwinski, 1 Vet. App. 292 (1991); VAOPGCPREC 82-90. "Congenital defects" are treated differently than "congenital diseases" in the context of VA disability compensation. A defect differs from a disease in that the former is "more or less stationary in nature" while the latter is "capable of improving or deteriorating." See Quirin v. Shinseki, 22 Vet.App. 390, 394 (2009); VA Gen. Couns. Prec. 82-90 at p. 2. More importantly "congenital defects" are excluded from the list of qualified diseases or injuries. Therefore, VA disability compensation may only be awarded in the event that an additional, service-connected disability is superimposed upon a congenital defect. Id. In contrast, "congenital diseases" are directly compensable and VA disability compensation may be awarded if a congenital disease is aggravated by a claimant's military service. Id. The Board finds that the weight of the medical evidence is that the Veteran's deviated nasal septum is a congenital defect and no additional disability was superimposed upon that defect as a result of her military service. Even if the deviated nasal septum were considered to be a congenital disease, the evidence of record does not support a finding of service-related aggravation because the Veteran's exit examination was normal. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection is not warranted. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for deviated nasal septum is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs