Citation Nr: 1545625 Decision Date: 10/27/15 Archive Date: 11/02/15 DOCKET NO. 13-12 576 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUE Entitlement to service connection for a deviated septum. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from April 1948 to April 1952. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2012 rating decision in which the RO, inter alia, denied the Veteran's claim for service connection for a deviated septum. In July 2012, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in April 2013 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veteran's Appeals) later that month. In October 2015, the Deputy Vice Chairman of the Board granted a motion to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7017(a)(2)(C) (West 2014) and 38 C.F.R. § 20.900(c) (2015). This appeal has been processed utilizing the Veterans Benefits Management System (VBMS), a paperless, electronic claims processing system. The Veteran also has a separate paperless, electronic Virtual VA file. A review of the Virtual VA file reveals that, with the exception of VA treatment records dated through April 2012 which were considered in the April 2013 SOC, the documents are either duplicative of those contained in the VBMS file or irrelevant to the matter on appeal. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. Although the Veteran has reported an in-service boxing injury to his nose, no deviated septum or other chronic nasal disability was shown in service or for many years thereafter; there is no credible evidence of continuity of symptoms of a deviated septum during and since service; and there is no competent, probative evidence or opinion even suggesting that there exists a medical relationship between this disability and the Veteran's service. CONCLUSION OF LAW The criteria for service connection for a deviated septum are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, a September 2010 pre-rating letter provided notice to the Veteran regarding the information and evidence needed to substantiate the claim for service connection for a deviated septum. This letter also informed the Veteran of what information and evidence must be submitted by him, and what information and evidence would be obtained by VA. In addition, this letter provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. The June 2012 rating decision reflects the AOJ's initial adjudication of this claim for service connection after the issuance of the September 2010 letter. Notably, neither the Veteran nor his representative has alleged or demonstrated any prejudice with regard to the content or timing of the notice provided. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file includes the Veteran's service and post-service VA treatment records. Also of record and considered in connection with the claim are the various written statements provided by the Veteran and by his representative, on his behalf. The Board finds that no further AOJ action on this claim, prior to appellate consideration, is required. The Board notes that, in a September 2010 letter, the Veteran was asked to identify any private treatment providers who had treated him for his claimed disability, and requested that he complete appropriate authorization form(s) to enable VA to obtain any such records. However, the Veteran did not respond to this letter. The Board points out that, in order for VA to process claims, individuals applying for VA benefits have a responsibility to cooperate with the agency in the gathering of the evidence necessary to establish allowance of benefits. See Morris v. Derwinski, 1 Vet. App. 260, 264 (1991). Moreover, VA's duty to assist is not always a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see Swann v. Brown, 5 Vet. App. 229, 233 (1993). Under these circumstances, the Board finds that, with respect to this request, no further AOJ action in this regard is required. In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran was notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on any of this claim. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection The Veteran contends that his currently diagnosed deviated septum was incurred in service. Specifically, he contends that it was incurred during a boxing match that occurred during basic training. In an October 2010 statement, the Veteran wrote that his nose had been beaten so severely during this boxing match that the referee had stopped the fight, and that his nose bled profusely at that time. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). With chronic disease shown as such in service (or within the presumptive period) 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 attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology apply to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, as the Veteran has not been diagnosed with a chronic disease subject to presumptive service connection, he cannot establish service connection solely on the basis of continuity of symptoms. In adjudicating a claim for VA benefits, 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Considering the pertinent evidence in light of the governing legal authority, the Board finds that the claim for service connection for a deviated septum must be denied. Service treatment records are negative for complaints, findings, or diagnoses related to a deviated septum. Complaints of post-nasal drip and a diagnosis of dermatitis were noted in June 1948. On April 1952 service discharge examination, the Veteran's nose was found to be normal. Moreover, there is no evidence of a chronic disability until May 2005, when the Veteran was first diagnosed with a septal deviation. The Board notes that the passage of more than 50 years between discharge from active service and the medical documentation of the claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Significantly, moreover, there also is no competent evidence or opinion even suggesting that there exists a medical nexus between the deviated septum diagnosed many years after the Veteran's discharge and any incident of service. None of the medical treatment records reflect any such opinion or even comment to that effect, and neither the Veteran nor his representative has presented or identified any such existing medical evidence or opinion. Furthermore, on this record, VA is not required to obtain a medical opinion addressing the etiology of the Veteran's deviated septum. Generally, VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Veteran has demonstrated that he has current disability of a deviated septum, but there is nothing to indicate that such disability may be associated with an event, injury, or disease in service. As previously discussed, the Veteran has not contended that he experienced any symptoms related to a deviated septum during service and the clinical evidence does not reflect such symptoms for many decades after service. Additionally, there is no medical or other persuasive evidence which suggests that the Veteran's deviated septum is related to service. Moreover, in the absence of evidence of an in-service disease or injury-here, of a nasal injury, as alleged-a remand of this claim for an examination or to obtain an opinion as to the etiology of the Veteran's deviated septum would in essence place the examining physician in the role of a fact finder, which is the Board's responsibility. In other words, any medical opinion which provides a nexus between the Veteran's deviated septum and his service would necessarily be based solely on the Veteran's current uncorroborated assertions regarding what occurred in service advanced in support of these claims, i.e. that he sustained a nose injury during service. However, a medical opinion premised on an unsubstantiated account of a claimant has no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). Simply stated, arranging for the Veteran to undergo VA examination or otherwise obtaining a medical opinion under the circumstances here presented would be a useless act. The duty to assist is not invoked where "no reasonable possibility exists that such assistance would aid in substantiating the claim." See, e .g., Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); 38 U.S.C.A. § 5103(a)(2). Therefore, VA has no obligation to obtain any medical opinion(s) commenting upon the etiology of the Veteran's deviated septum. See 38 U.S.C.A. § 5103A(d); 3.159(c)(4); McLendon, 20 Vet. App. at 83. Finally, as for any direct assertions by the Veteran and/or his representative as to the existence of a medical relationship between the disability diagnosed in May 2005 and service, the Board finds that no such assertions provide persuasive evidence in support of the claim. The matters of the diagnosis and etiology of a deviated septum are matters within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Although lay persons are competent to report facts within their personal knowledge, such as the occurrence of injury (see, e.g. Layno v. Brown, 6 Vet. App. 465 (1994)), as well as to opine on some medical matters (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the specific matter of medical etiology on which this claim turns is a complex medical matter that fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (providing that lay persons are not competent to diagnose cancer). As neither the Veteran nor his representative is shown to be other than a layperson without appropriate training and expertise, neither is competent to render a probative (i.e., persuasive) opinion on the medical matter of the etiology of the disability under consideration. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998). Hence, in this case, the lay assertions of medical nexus do not constitute competent evidence on this point, and, thus, have no probative value. For all the foregoing reasons, the Board finds that, the claim for service connection for a deviated septum must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, credible, and probative evidence supports the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a deviated septum is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs