Citation Nr: 1803781	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  14-41 324	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to service connection for residuals of a nasal fracture.


REPRESENTATION

Appellant represented by:	New Jersey Department of Military and Veterans' Affairs



ATTORNEY FOR THE BOARD

C. L. Wasser, Counsel


INTRODUCTION

The Veteran served on active duty from May 1959 to May 1963.

This case comes to the Board of Veterans' Appeals (Board) on appeal from a September 2016 RO decision that in pertinent part, denied service connection for residuals of a broken nose.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012).


FINDING OF FACT

The Veteran does not have a current nose disability to include residuals of an inservice nasal fracture.


CONCLUSION OF LAW

The criteria for establishing service connection for residuals of a nasal fracture have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

The Board finds that the RO has substantially complied with its June 2017 remand orders. In this regard, the Board directed that the Agency of Original Jurisdiction (AOJ) attempt to obtain relevant private medical records of treatment by a private physician (later identified by the Veteran as Dr. G.) dated in 1963, and this was done. The Veteran provided a release to enable VA to obtain private medical records from Dr. G., but multiple attempts to obtain such records have been unsuccessful. The Veteran was notified of this fact. Additional VA medical records were also obtained by the AOJ. Therefore, the Board finds that no further development is necessary. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

Service Connection

The Veteran contends that he broke his nose in service and has a current deviated nasal septum as a result. In a November 2014 VA Form 9, the Veteran stated that during service, he had his nose broken but did not complain. In a December 2014 statement, the Veteran said that during service he broke his nose and suffered a deviated septum but did not pursue this issue. He stated that when he got out of service in 1963, he went to a nose doctor. He said he had suffered with this condition for many years, and it had always bothered him. He reported that he had headaches and a bad sinus condition ever since the accident. 

In May 2016, the Veteran filed the instant claim of service connection for residuals of a nasal fracture. In a letter received in November 2016, he stated that during service, he slipped on snow or ice outside his barracks, fell, and fractured his nose. He said it did not hurt when it happened, so he "decided to let it go." He stated that shortly after separation form service, he sought treatment for the condition by a private nose doctor who told him to leave it alone. He reported current difficulty breathing through his nose. He reiterated his assertions in subsequent statements.

In a December 2016 statement, the Veteran reiterated his assertions, stating that he slipped and fell in service, injuring his nose. He said he heard his nose crack, but he was very cold and it did not bother him, and he returned to his barracks and went to bed.

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 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)). 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).

The nexus element may be fulfilled by (1) a nexus opinion or (2) competent and credible evidence showing that the veteran has experienced frequent and persistent symptoms of the disease since service. 38 U.S.C. § 1154(a) (2012); 38 C.F.R. §§ 3.303(a), (d); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).   

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, the tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); see also 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), citing Gilbert, 1 Vet. App. at 54.

The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Based upon a longitudinal review of the record, the Board concludes that service connection is not warranted for residuals of a nasal fracture.

Service treatment records are negative for a nasal fracture or injury, and the Veteran's nose was normal on separation examination in May 1963.

Post-service VA and private medical records are entirely negative for residuals of a nasal fracture and for a disability of the nose. Private medical records dated in August 2013 reflect that on examination, the Veteran's nose was within normal limits. VA outpatient treatment records reflect that no abnormalities of the nose were noted.

The Board has considered the Veteran's lay statements to the effect that he fell in service and injured his nose. He is competent to make this statement. However, there is no contemporaneous evidence of complaints or treatment for such injury in service, and he has stated that he did not seek treatment for the injury, and that it did not hurt. His nose was normal on separation medical examination in 1963, and post-service medical records are negative for a current disability of the nose. To the extent that the Veteran himself believes that he has current residuals of an in-service nasal fracture, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Moreover, the Board finds that the competent medical evidence showing that his nose was normal on examination in August 2013 is more probative than his assertions in this regard.

In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. See also Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists).

As the most probative evidence is against a finding that the Veteran has a current nose disability to include claimed residuals of a nasal fracture in service, service connection for the claimed condition is not warranted. 38 C.F.R. § 3.303; Brammer, supra. 

In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).



ORDER

Service connection for residuals of a nasal fracture is denied.




S. L. Kennedy 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs