Citation Nr: 1751231 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 12-02 051 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a residuals of a nasal fracture. 2. Entitlement to service connection for migraine headaches, to include as due to an in-service nasal fracture or as secondary to residuals of a nasal fracture. 3. Entitlement to service connection for a sinus condition, to include allergic rhinitis or sinusitis, to include as due to an in-service nasal fracture or as secondary to residuals of a nasal fracture. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Boyd Iwanowski, Counsel INTRODUCTION The Veteran served on active duty from February 1965 to February 1967. These matters come before the Board of Veterans' Appeals (Board) from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In November 2012, the Veteran testified at a hearing before a Veterans Law Judge who has since retired from the Board. A transcript is associated with the Veteran's electronic claims file. In compliance with VA's governing laws and regulations, the Veteran was sent a letter in July 2017 notifying him of his right to another hearing before a different Veterans Law Judge. 38 U.S.C. § 7107(c) (2012); C.F.R. § 20.717 (2017). As of this time, the Veteran has not responded to the July 2017 letter and has not requested another hearing before the Board. The Board will therefore proceed with adjudication. In an October 2014 Board decision, the claims of entitlement to service connection for residuals of a broken nose and migraines were reopened and remanded for further development, along with a new claim for service connection for a sinus disability. In December 2016, the claims were remanded again. FINDINGS OF FACT 1. The probative evidence of record does not support a finding that the Veteran has current nasal disability which could be associated with an old nasal fracture, to include a deviated septum. 2. The probative evidence of record does not support a finding that migraine headaches had clinical onset during service or within one year of discharge from service; it has not been shown that migraines were caused or aggravated by a service-connected disability. 3. The probative evidence of record does not support a finding that a sinus condition, diagnosed as allergic rhinitis, had its clinical onset during service or within one year of discharge from service; it has not been shown that a sinus condition was caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a residuals of a nasal fracture have not been met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309 (2017). 2. The criteria for establishing service connection for migraines have not been met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.310 (2017). 3. The criteria for establishing service connection for a sinus condition, diagnosed as allergic rhinitis, have not been met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that he has experienced headaches and sinus symptoms since he fractured his nose in service in November 1966. The Board has reviewed all the evidence in the record. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When there is an approximate balance of evidence for and against an issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2017). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 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). Turning to the evidence, a November 1966 STR states the Veteran was hit in the nose with an elbow and suffered swelling and pain; x-rays revealed a fracture. Initially, it was noted that no septal deviation was seen. Upon further examination, a slight depression of the nose was noted and the septum was slightly to the left and immobile. The impression was a nasal fracture in "good position". Subsequent records showed no residuals or related treatment. The Veteran's 1967 separation examination showed normal nose and neurological findings with no mention of nasal fracture residuals or headaches. On the corresponding Report of Medical History, the Veteran denied having nose trouble, sinusitis or headaches. He did indicate experiencing "chronic colds - consisting of coughing." Following his original November 2006 claims for service connection for a broken nose and migraines, the Veteran underwent a VA examination in June 2007. The Veteran indicated he had suffered migraines and blurred vision since his in-service nasal fracture in 1966. He reported no treatment for his nose or sinuses and stated that he did not feel he had a problem with allergies. It was noted he breathed out of both sides of his nose. Physical examination revealed that the external nose was normal, the vestibule was normal, the septum was midline and the turbinates, meati, floor of the nose and internal nasal mucosa were normal. The impression was status post closed reduction of nasal fracture in the remote past with no residual. No opinion was provided as to whether current headaches were due to the fracture. In July 2007, the RO denied the claims on the basis that current, chronic residuals of the Veteran's in-service nose injury had not been demonstrated, that there was no current evidence of an old nose fracture, and that migraines had not been diagnosed. The Veteran did not timely appeal. In December 2010, the Veteran filed to reopen his claim for entitlement to service connection for status-post fracture of nose and for migraines, along with a new claim for service connection for sinusitis associated with the fracture. In December 2011, the Veteran underwent a VA Sinusitis/Rhinitis and Other Disease of the Nose, Throat examination. The examiner indicated a diagnosis of allergic rhinitis which the Veteran stated had been diagnosed in 1966. The Veteran reported that since 1966 he had experienced a runny nose every morning when he woke up, although he denied a history of treatment. He reported frequent sneezing, watery drainage from the nose and itchy, watery eyes. Upon examination, it was noted there was greater than 50% obstruction of the nasal passage on both sides due to rhinitis. The examiner opined that it was less likely than not that the Veteran's allergic rhinitis was related to the nasal fracture in service based on the Veteran's report of exposure to dust and particles in the environment related to his post-service occupation working on the railroad. Such exposure, the examiner stated, was more likely implicated as a cause of allergic rhinitis. The examiner noted minor MRI and CT findings suggestive of sinus congestion, but there were no clinical findings of chronic sinusitis. At a December 2011 VA examination for headaches, migraines were diagnosed. The Veteran related he had experienced headaches for a long time and believed they were related to his nose injury in service. The examiner noted that STRs did not include complaints of headaches and the Veteran did not indicate he had headaches upon separation in his self-reported medical history. As to any relationship between the Veteran's headaches and his nose injury, the examiner indicated that it was "generally accepted fact that migraine is not caused by a nose injury." He focused on the lack of treatment for headaches during service and that the Veteran did not relate having experienced headaches on his January 1967 separation examination. The examiner concluded that the nose injury in service "did not cause or precipitate or aggravate the current migraine headache diagnosis." In November 2012, the Veteran testified at a hearing before the Board. His representative explained that everything came down to demonstrating there was a serious injury on active duty that caused a broken nose, and that the broken nose caused a deviated septum which caused sinusitis and "everything from that point." The Veteran testified that he had been knocked unconscious when he was hit in the nose by another player's elbow during a basketball game in service. He indicated his nose was bleeding and when he woke up, he was no longer on the basketball court. He recalled seeking treatment the following day that included reshaping of his nose. Following separation from service, the Veteran returned to college. He noted he started seeing spots in front of his eyes and then getting terrible headaches. He indicated he thought it was because he was overexerting himself playing basketball. He continued to have headaches and numbness on the left side of his nose and still had both today. He also testified that he went to work on the railroad in 1973 and that he experienced sinus problems and headaches prior to that time. He had a physical prior to starting work at the railroad, but periodic physicals were not routine. He reported that he started having discharge from the nose all the time-from almost right after the injury to his nose in service which continued to the present. In addition, he stated the headaches started right after the injury and continued through his time playing basketball in college. He would have massive headaches after practice and he thought it was due to over exercising. He did not seek treatment because he was "doctoring himself." In a February 2013 statement in support of claim, the Veteran indicated he had been unsuccessful at getting records from the Norfolk Southern Railroad. In October 2014, the Board reopened the previously denied claims for service connection for a broken nose and migraines. In the remand, the Board sought updated VA treatment records, and additional follow-up as to records from the Railroad. In November 2014, the RO sent the Veteran a letter seeking authorization to seek records from the Railroad. In a February 2015 statement in support of claim, the Veteran reported that he was never treated medically by Northern Southern Corporation. He stated he had a 'Going to Work Physical' done at St. Albans Hospital in Queens, New York in 1977-78 where he was employed with the VA. He started work at the Railroad in 1981. In December 2016, the Board remanded the claim again to seek records from St. Albans Hospital and obtain addendum opinions. Thereafter, in a December 2016 letter, the RO sought authorization from the Veteran to obtain treatment records from St. Albans Hospital. Such authorization has not been provided as of this date and the Veteran did not provide the records himself. In December 2016, the examiner who had provided the Sinusitis/Rhinitis examination in December 2011 agreed with the assessment of the December 2011 examiner who performed the headache examination that migraines are not caused by nasal fracture. The examiner found this was supported by a lack of evidence that the Veteran suffered from chronic headaches in service. As to rhinitis, the examiner stood by his earlier medical opinion that the most likely cause of the allergic rhinitis was the Veteran's post-service occupation on the Railroad. In a January 2017 statement in support of claim, the Veteran repeated his claim that ever since being knocked unconscious after his nose was broken, he had experienced migraines with accompanying vision loss. He indicated that over the past 14 years he had been treated at the VA and that his issues were not related to his time working for the Railroad. Upon review, the Board finds the preponderance of the evidence demonstrates that the Veteran does not have current residuals of a nasal fracture that have caused migraines and/or a sinus condition, diagnosed as allergic rhinitis. STRs show the Veteran left service with his nose in "good position," and there were no nose fracture residuals noted on the separation examination. In June 2007-four decades after in the in-service injury-an examiner concluded that there was no abnormality of the nose, and the septum was midline and not deviated. The Veteran made no indication that he experienced numbness on the left side. Review of available VA treatment records does not reveal evidence of a deviated septum or other treatment for abnormality of the nose, to include numbness, and the Veteran indicated he had not sought treatment for his nose in the interim between his injury in 1966 and the June 2007 examination, a period of more than 40 years. The existence of a current disability is the cornerstone of a claim for service connection and VA disability compensation. 38 U.S.C.A. § 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of a currently demonstrated abnormality of the nose, service connection is not warranted for residuals of a nasal fracture. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Regarding migraines, the objective evidence at the time of the in-service injury does not support a finding that the Veteran suffered headaches prior to separation from service in February 1967. The Board recognizes that this is only three months after the accident; however, the lack of complaint of headaches on the separation examination supports a finding that headaches did not have clinical onset in service. Even if, as the Veteran testified, he began experiencing headaches shortly after returning to college after service, such does not support a finding that onset of headaches was while he was on active duty. As for service connection on a secondary basis, the Board finds the criteria have not been met. This is primarily because the evidence does not support a finding that the Veteran has current residuals of a nasal fracture and he is not service connected for any other disabilities. In addition, the medical opinions of record find that it is generally accepted that migraine headaches are not caused by injury to the nose. Regarding a sinus condition, the Board recognizes the Veteran's testimony and statements that he experienced sinus complaints prior to working for the Railroad. However, the Board questions the credibility of such testimony based on the Veteran's statement at the June 2007 VA examination that he had not sought treatment for his sinuses, and did not feel he had a problem with allergies. It was not until after his claim for service connection for sinusitis, filed in December 2010, that the Veteran reported daily symptomatology, such as nasal discharge, since the time of his in-service injury. In the STRs, the Veteran indicated he had chronic colds; however, he elaborated that these consisted of coughing. No mention was made of nasal discharge or drainage. The record is silent regarding sinus complaints prior to December 2010. This includes during service and in the 40-plus years following separation prior to the service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a proper consideration for the trier of fact is the amount of time that has elapsed since military service). Overall, the Board finds that clinical onset of sinus problems in service has not been demonstrated and evidence of continuing symptomatology is absent such that direct service connection for a sinus condition is not warranted. In addition, as current abnormality of the nose has not been demonstrated, the Board finds that service connection on a secondary basis must also be denied. The Board acknowledges the Veteran's belief that he has conditions related to his 1966 nose injury that should be service connected. The Veteran is competent to report on matters observed or within his personal knowledge, and is therefore competent to make statements regarding headache pain or sinus congestion/obstruction. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, a probative medical opinion on the etiology or underlying causes of disabilities such as migraines or a sinus condition requires the specialized training of a medical professional. In this case, as a layperson not shown to possess appropriate medical training and expertise, the Veteran is not competent to render a persuasive or competent medical opinion on whether migraines or a sinus condition were caused by or is otherwise related to a remote, in-service injury See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2006). Hence, his assertions in this regard cannot constitute competent and persuasive evidence in support of the claims for service connection. In any event, the Board finds the adverse medical opinions of record to be the most probative evidence as they were made by medical professionals after a review of examination findings, medical records, the Veteran's lay statements, and are consistent with the evidence of record. In light of the above, the Board finds that the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine does not apply and the claims must be denied. 38 U.S.C.A. § 5107(b). ORDER Service connection for residuals of a nasal fracture is denied. Service connection for migraines is denied. Service connection for a sinus condition, diagnosed as allergic rhinitis, is denied. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs