Citation Nr: 1334560 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-48 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a deviated septum. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Nathanson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1976 to September 1980 and March 1984 to June 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which among other things, denied service connection for a deviated septum. The Veteran testified at a Travel Board hearing which was conducted by the undersigned Veterans Law Judge at the Portland RO in March 2013. A transcript of the hearing has been associated with the Veteran's claims folder. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The documents in the electronic file include the March 2013 hearing transcript. The remaining documents in the file are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT A deviated nasal septum had its onset during peacetime service. CONCLUSION OF LAW A deviated nasal septum was incurred in peacetime service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2013); 31 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The action taken herein below is favorable to the Veteran, and therefore a discussion of VCAA is not required at this time. Legal Principles As an initial matter, the Board notes that the Veteran does not allege, and the evidence does not reflect, that the disabilities for which he claims entitlement to service connection are the result of participation in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis Here, the Veteran contends that his current deviated septum was incurred when he was punched in the face while trying to break up a fight during active service in 1977. The Veteran's service treatment records from September 1976 to September 1980 reflect no treatment, complaints, or diagnoses of injuries relating to the Veteran's nose. Upon examination in August 1978, the Veteran denied any nose trouble and indicated that his only broken bones were a fractured right wrist and fractured left wrist. At separation in July 1980, the Veteran's clinical evaluation of his head and face was normal. The Veteran's subsequent service treatment records show notations relating to the Veteran's broken nose arising from the incident in 1977. The Veteran's October 1982 report of medical history for his triannual examination in the Marine Corp Reserves reflects a notation of a broken nose in 1977. The Veteran's broken nose was also noted on his reports of medical history in July 1984 and November 1998. In addition, upon retirement from the Army Reserves in January 2009, the Veteran indicated on his report of medical history that he had a deviated nasal septum from Japan in 1977. At the March 2013 hearing, the Veteran testified that while breaking up a fight in the fall of 1977, he was punched in the face. He stated that he was in Japan and most of the team had already returned to the ship. Consequently, there were no medical personnel to treat his injury at that time. He further testified that by the time he returned to his unit his nose was starting to heal and he did not seek treatment because he did not want to have his nose re-broken by the medical personnel, and, as a young marine, he did not want to appear weak. The Veteran stated that he also wrote up formal charges against the person who broke his nose but his commander decided not to follow up on the charges. The Veteran was afforded a VA examination in June 2009. The Veteran reported nasal trauma in 1977 and difficulty breathing out of his nose since the injury. He denied any subsequent nasal trauma or nasal surgery. Upon physical examination, the examiner reported the Veteran's anterior rhinoscopy showed a tortuous septum obstructing the airways about 50 percent bilaterally. The examiner assessed that Veteran had a deviated septum. After a thorough review of the claims file and the Veteran's medical records, the examiner opined that the Veteran's deviated septum was most likely caused by the nasal trauma from service. He further opined that, "on a more likely than not basis, it appears that the trauma he had in service is the only etiology that we know of that would relate to the current deviation that he has of his septum and the resulting nasal obstruction bilaterally." Upon careful review of the evidence of record, the Board finds the weight of the evidence reflects that the Veteran's in-service nasal injury caused his deviated septum. The evidence weighing against the claim includes the Veteran's service treatment records from fall 1977 to August 1980 which were silent as to complaints or treatments for a nasal injury. The Board notes, however, that the Veteran's nasal injury was reported on subsequent reports of medical history while the Veteran was in both active service and in the reserve service in October 1982, July 1984, November 1998, and January 2009. These reports of medical history are afforded great probative value as they were given to describe the Veteran's medical history and condition and not for the purpose of seeking compensation. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board also acknowledges that the Veteran is competent to report as to the observable symptoms he experiences, such as an onset of his symptoms and their history. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds that the Veteran's testimony regarding the in-service incident and his rationale for why he did not seek medical treatment for the injury was both credible and consistent with his reports of medical history in October 1982, July 1984, November 1998, and January 2009. Caluza v. Brown, 7 Vet. App. 498 (1995). In sum, the Board finds that service connection for a deviated septum is granted because the probative evidence reflects the Veteran's deviated septum is related to his in-service nasal injury. ORDER Service connection for a deviated septum is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs