Citation Nr: 1613893 Decision Date: 04/05/16 Archive Date: 04/13/16 DOCKET NO. 11-25 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for residuals of a kick in the face during service, to include a nasal fracture. 2. Entitlement to service connection for sinusitis. 3. Entitlement to service connection for a stomach disability, to include gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD David Nelson, Counsel INTRODUCTION The Veteran served on active duty from August 1964 to August 1968 and had subsequent service in the United States Army National Guard (ANG), including service in the ANG of Michigan from September 1975 to June 1979 and service in the ANG of Ohio from August 1986 to August 1994. This case comes before the Board of Veterans' Appeals (Board) from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This case was most recently before the Board in January 2015. An October 2015 rating decision granted service connection for tinnitus and bilateral hearing loss, and assigned ratings of 10 percent for those disabilities, effective November 24, 2009. The Veteran has not expressed disagreement with the October 2015 RO decision. FINDINGS OF FACT 1. A disability resulting from a kick in the face during service, including a nasal fracture, has not been diagnosed or established during or contemporary to the appeal period. 2. Sinusitis did not have its onset during the Veteran's active service and was not caused by his active service. 3. A stomach disability did not have its onset during the Veteran's active service and was not caused by his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a disability as a residual of a kick in the face during service, including a nasal fracture, are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2015); 38 C.F.R. § 3.303 (2015). 2. The criteria for service connection for sinusitis are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2015); 38 C.F.R. § 3.303 (2015). 3. The criteria for service connection for a stomach disability, to include GERD, are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2015); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The VCAA applies in the instant case. Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). By correspondence, including that dated in August 2010, the Veteran was informed of the evidence and information necessary to substantiate the claims, the information required to enable VA to obtain evidence in support of the claims, the assistance that VA would provide to obtain evidence and information in support of the claims, and the evidence that should be submitted if there was no desire for VA to obtain such evidence. 38 U.S.C. § 5103(a). The Veteran has also received notice regarding the assignment of a disability rating and/or effective date in the event of an award of VA benefits. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice was completed prior to the initial AOJ adjudication of the claims. Duty to Assist The Veteran's service treatment records (from August 1964 to August 1968) are associated with the claims file, as are VA and private medical records. In April 2015 the Veteran underwent VA examinations that addressed the medical matters presented by the service connection issues. 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 finds that the April 2015 opinions obtained in this case are adequate. The April 2015 VA examiner elicited information concerning the Veteran's military service. The opinion considered the pertinent evidence of record, the Veteran's lay history and statements pertaining to symptoms, and provided a rationale for its conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds that there has been substantial compliance with its prior remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Significantly, as noted, the Veteran has undergone VA examinations that addressed the medical matters presented by this appeal. Despite efforts by the AOJ, not all of the records requested by the January 2015 Board remand have been obtained and are unavailable. The Veteran has been informed of such and has been requested to submit any such records that might be in his possession. When service records are largely unavailable, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Board here observers, however, that the Veteran has asserted that the disabilities on appeal are related to his period of active duty service from August 1964 to August 1968, records of which are associated with the claims file. The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claims. Applicable Law and Regulations Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where there is a 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). This rule does not mean that any manifestations in service will permit service connection. To show 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 as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for certain chronic diseases may be presumed, subject to rebuttal, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Secondary service connection may also be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen. VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Analysis The Veteran asserts that he has disability (including a nasal fracture, sinusitis, and stomach disability) that resulted from a kick in the face during service. While the Veteran's service medical records show no complaints or diagnoses relating to being kicked in the face during service, VA has found the Veteran to be credible in that such an event occurred and thus assumes that the Veteran was kicked in the face during service. The Veteran's May 1964 service entrance examination noted that the Veteran's nose and sinuses were normal. A history of otitis was noted on the corresponding Medical History Report. A December 1964 service treatment record indicates that the Veteran complained of a sore throat and a runny nose. The record indicated that the Veteran's tonsils were infected. The Veteran's August 1968 service separation examination report indicates that the Veteran's sinuses, nose, and abdomen (and viscera) were clinically evaluated as normal. The existence of a current disability is the cornerstone of a claim for VA disability compensation. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Medical records contain no findings related to any disability resulting from the kick in the face during service, including any nasal-related fracture. Further, in April 2015 a VA examiner made a specific finding (based on a review of clinical and diagnostic testing) that the Veteran's "nasal injury/fracture" had resolved without any residuals. Further, the April 2015 VA examiner indicated that a March 2002 CT scan of the maxillofacial bones revealed no evidence of a nasal fracture. Under the VA system, a claim for disability compensation may not be granted unless a disability results from a disease or injury that was incurred or aggravated during service. See Terry v. Principi, 340 F.3d 1378, 1382 (Fed. Cir. 2003). Disability refers to "impairment of earning capacity due to disease, injury, or defect, rather than to the disease, injury, or defect itself." Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Accordingly, while again not doubting that the Veteran was kicked in the face during service, there is no disability of record (including a nasal fracture) that can be attributed to the kick in the face, and the claim must be denied. Terry, 340 F.3d at 1382. As for the issues of service connection for sinusitis and a stomach disability, the Veteran asserts that these have resulted secondary from his claimed nasal fracture. However, as service connection for a nasal fracture is not in effect, service connection on a secondary basis is not available. As for direct service connection, the Board again notes that the Veteran's nose, sinuses, and abdomen were clinically evaluated as normal on his August 1968 service separation examination. It appears that the Veteran was not diagnosed with sinusitis or a gastrointestinal disorder until years following his active service that ended in August 1968. In this regard, the Board notes that the Veteran's sinuses and abdomen were clinically evaluated as normal on a May 1975 Army National Guard examination. Significantly, there is no competent medical opinion linking sinus or stomach disability to service, and the April 2015 VA examiner has specifically indicated that such was not related to his military service. As for the probative value of the April 2015 VA opinion, the Board observes that the April 2015 VA examiner reviewed the Veteran's claims file and noted the Veteran's assertions concerning his sinuses and digestive problems. The April 2015 VA examiner detailed the medical history of the Veteran's disabilities on appeal, performed a contemporaneous examination, provided a rationale for the opinion, and made references to specific clinical and diagnostic findings of various medical records pertinent to the claims. The Veteran's assertions concerning his disabilities on appeal have been considered. To the extent that is an opinion of a nexus between these conditions, the Board finds his statements are not competent evidence. Whether a layperson opinion as to a nexus or a diagnosis is competent evidence depends on the facts of the particular case. One factor for consideration is the complexity of the question to be determined. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (providing an example in footnote 4 that a layperson would be competent to diagnose a simple condition such as a broken leg but not competent to diagnose a form of cancer). Another factor is whether the question can be answered by personal observation alone. Layno v. Brown, 6 Vet. App. 465 (1994) (layperson is competent to report only that which the person observed). Whether an incident in service can cause sinus disability or a stomach disorder is not a question that can be determined by mere observation and is not a simple question. The Veteran, his wife, and the authors of the other lay statements of record, while clearly credible in detailing the Veteran's reported nasal and gastrointestinal symptoms, have not been shown to possess the requisite medical training, expertise, or credentials needed to diagnose diseases of the nose or of orthopedic fractures or gastrointestinal disabilities, or to provide etiologies of such disorders. Such lay evidence, to the extent provided, does not constitute competent medical evidence of the presence of a disability and lacks probative value. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board finds that service connection for residuals of a kick in the face, sinusitis, and stomach disability is not warranted. The Board finds that the preponderance of the evidence weighs against the claims, and the claims must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for residuals of a kick in the face during service, to include a nasal fracture, is denied. Service connection for sinusitis is denied Service connection for a stomach disability, to include GERD, is denied. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs