Citation Nr: 1325362 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 07-26 569 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for residuals of fractured nose and/or deviated septum on the left. 2. Entitlement to service connection for an acquired psychiatric disability as secondary to residuals of fractured nose and/or deviated septum on the left. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The Veteran had active military service from April 1970 to January 1972. These matters come before the Board of Veterans' Appeals (Board) from a May 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Cleveland, Ohio. In July 2010, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. These matters were previously before the Board in September 2010 and July 2012 and were remanded for further development. They have now returned to the Board for further appellate consideration. FINDINGS OF FACT 1. The Veteran had surgery to correct a deviated nasal septum in service. 2. Subsequent to surgery for a deviated nasal septum, the Veteran injured his nose in service. 3. The Veteran contends that he has had chronic sinusitis since service. 4. The Veteran has a diagnosis of depression which is at least as likely as not due to his chronic sinusitis. 5. In giving the benefit of the doubt to the Veteran, the Board finds that his chronic sinusitis is due to active service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for chronic sinusitis as a residual of deviated septum and/or nose injury in service have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Depression is proximately due to the Veteran's service-connected chronic sinusitis residual of deviated septum and/or nose injury in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310. (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided in 2005. As the Board, in the decision below, grants the Veteran's claims, any defect with regard to notice is not prejudicial to the Veteran. VA has a duty to assist the appellant in the development of the claims. The claim file includes service treatment records (STRs), Social Security Administration (SSA) records, VA and private medical records, and the statements of the Veteran in support of the claims. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims for which VA has a duty to obtain. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board has obtained clinical opinions along with supplemental reports. The opinions are predicated on consideration of the Veteran's disabilities, his symptoms, and his medical history. Adequate rationale has been provided. The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims. Essentially, all available evidence that could substantiate the claims has been obtained. Legal Criteria Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some "chronic diseases," presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Organic diseases of the nervous system are included in 38 C.F.R. § 3.309(a). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Service Connection on a secondary basis Under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the claim on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Residuals of Nose and/or deviated septum disability The Veteran contends that he has residuals of a fractured nose related to active service. In his VA Form 21-526, filed in June 2005, the Veteran reported that a "fellow tank member tossed track part while I was talking to someone and it hit me in the face and broke my nose." The Veteran also testified at the July 2010 Board hearing that, in what he believed was in April 1971 in Schweinfurt, Germany, he was driving a jeep when he went over a bump and "slammed down onto the steering wheel of the Jeep." He testified that it broke his nose, and smashed his face and cheekbone. He stated that complained about a nosebleed several times. The Board has reviewed the Veteran's STRs with regard to any complaints of the nose. The Veteran's March 1970 report of medical history for entrance purposes reflects that he reported having had ear, nose, or throat trouble. The physician's summary and elaboration of notes reflects that the Veteran had occasional head colds. The Veteran denied ever having had a bone deformity or a history of broken bones. An August 1971 STR reflects that the Veteran had a complaint of a deviated nasal septum. It was noted that he presented "with a history of nasal obstruction for several years. No history of fracture." The Veteran was admitted for a submucous resection. A submucous resection refers to a surgical procedure for correcting a deviated nasal septum, leaving the mucous membrane of the septum intact. The August 1971 STR further reflects that a physical examination of the Veteran was "completely unremarkable except for the presence of a deviate nasal septum to the left with a spur obstructing the air way." The hospital course was as follows: [T]he patient was taken to the operating room on 16th August and had a submucous resection performed under local anesthesia. Post-operative course was completely benign and on 18th August he was released for a convalescent leave. He returned from convalescence leave on 27th August and was discharged from the hospital in good condition." The date of discharge was August 27th, the same day he returned from leave. A November 1971 STR reflects that the Veteran complained of "nose trouble" and difficulty breathing through his left nostril after being struck by a vehicle steering wheel. Upon examination, it was noted that he had submucous proliferation of tissue at base of septum with a small ulceration. An ENT clinic record reflects that the Veteran had a "submucous resection of the nasal septum in August 71. Several days ago he struck nose on steering wheel of jeep and now complains of difficulty breathing." A February 2007 VA clinical record (CT scan) reflects that "no significant nasal septal deviation" was noted. An October 2007 VA clinical record reflects that the Veteran's CT of the sinus was consistent with "old healed minimally displaced left zygomatic complex fracture." The Board notes that "zygomatic" refers to the cheekbone, below an eye. Although this does not refer to the deviated septum as the cause of his chronic sinusitis, as alleged by the Veteran, it is possible that the Veteran injured his zygomatic area at the time his face hit the steering wheel in service. A 2013 addendum to a December 2011 VA mental health examination report reflects that the Veteran stated that he entered service with a pre-existing deviated septum which was nonsymtomatic except for some occasional congestion which allegedly did not cause any problems for him. He also stated that while serving in the tanks motor pool, a fellow serviceman threw a 4-5 pound steel steering wheel part at his face. He indicated that his nose began bleeding and he subsequently had problems with nasal congestion and sinusitis. He further reported that he had surgery on his deviated nasal septum in 1971. The Veteran stated that in November 1971, he reinjured his nose on a steering wheel of his jeep while driving over rough terrain. The examiner noted that there is conflicting history in the records as to how the Veteran injured his nose; however, the examiner stated that this conflicting and contradictory history cannot be attributed to willful neglect or secondary gain by the Veteran. An October 2010 VA examination report reflects the opinion of the examiner that it is at least as likely as not that the Veteran's current conditions of chronic sinusitis, chronic sinus headaches, and chronic postnasal drip are related to the deviated septum and nose surgery in service. In sum, the record reflects that in service the Veteran had surgery to correct a deviated septum, and subsequently hit his nose on a steering wheel, causing breathing difficulties on the left side of his nose. It further reflects that he has had chronic sinusitis since that time. The Board finds, in giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), that service connection for chronic sinusitis as a residual of a nose injury and/or deviated septum in service, is warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Acquired psychiatric disability The Veteran alleges that he has a current psychiatric disability causally related to his sinus disability. A December 2011 VA examination report reflects the opinion of the examiner that the Veteran has depression which is as likely as not multifactoral in nature. The examiner also opined that the Veteran has chronic underlying aggravation/depression due to chronic sinus problems. A January 2013 VA addendum is also associated with the claims file. The examiner noted that it is not uncommon for individuals to give varying statements as to the onset of their depression. The examiner stated, in pertinent part, as follows: The veteran has undoubtedly had a varying course in the severity of his depression. As stated in the body of the report, he has had periods of increased depression during times of stress. It would be speculative to try to determine the onset of depression at those times in comparison to his current symptoms given the overlap in symptoms over time and due to be limited documentation of symptoms over specific periods of time. His primary frustration and stressor currently is his chronic sinus problems and the negative impact that they have on his mood, irritability, and psychosocial functioning difficulties. As stated in the body of the report, his chronic sinus problems are therefore, felt to be, at least as likely as not, the cause of his current depression and depressive symptoms. The Board finds, in giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), that service connection for depression as secondary to chronic sinusitis as a residual of a residual of a nose injury and/or deviated septum in service, is warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for chronic sinusitis as a residual of a nose injury nose and/or deviated septum on the left is granted. Entitlement to service connection for depression as secondary to chronic sinusitis as a residual of a nose injury and/or deviated septum on the left is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs