Citation Nr: 18145963 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-62 026 DATE: October 30, 2018 ORDER Service connection for residuals of a right ankle sprain is denied. A compensable rating for a deviated nasal septum is denied. FINDINGS OF FACT 1. During the appeal period, a right ankle disability is not shown. 2. During the appeal period, the Veteran’s deviated nasal septum was not more nearly manifested by 50 percent obstruction of the nasal passages on both sides; or, complete obstruction of the nasal passages on one side. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a right ankle condition are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. 2. The criteria for a compensable rating for a deviated nasal septum are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code (DC) 6502. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2003 to July 2012. This case comes before the Board of Veteran’s Appeals (Board) on appeal of a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for residuals of a right ankle condition Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). The Veteran contends that he has a current right ankle disorder with pain due to in-service injury from an Airborne operation (parachute jump). See NOD (July 2015); see C&P Exam (June 2015). The Board concludes that the preponderance of the evidence is against the claim of entitlement to service connection for right ankle disability. Although the Veteran had a right ankle injury in service, a chronic right ankle disability is not shown at any time during this appeal. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. Service Treatment Records (STRs) reflect that the Veteran sprained his right ankle multiple times in service. See STRs, dated May 9, 2012. He attended physical therapy for a right ankle anterior talofibular ligament tear (AFTL) and possible calcaneofibular ligament tear (CFL tear), diagnosed as an ankle sprain, in April 2008. See Medical Treatment Record (MTR) (July 24, 2015). A March 2012 separation examination documented mild laxity and grinding in the right ankle, and the Veteran reported occasional swelling. See MTR, dated September 18, 2014. Following service separation in 2012, the claim file includes no documented complaints or findings for abnormal right ankle pathology. An April 2015 VA examination reflects complaints of occasional stiffness of the right ankle. The examiner found there was no current diagnosis. Objectively, there was no pain on movement or weightbearing, crepitus, abnormal range of motion, loss of muscle strength, atrophy, or ankylosis. The examiner reported there was no evidence of any ankle condition on examination and the condition had resolved without objective residual. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997). The Board accepts that the Veteran had a right ankle injury during active service and his report of occasional stiffness is both competent and credible. However, as discussed above, neither the lay nor the medical evidence demonstrates the presence of “disability.” In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See McClain v. Nicholson, 21 Vet. App. 318, 321 (2007) (The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim). The Board has considered whether the Veteran’s symptoms constitutes a “disability” for VA compensation purposes. Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018) (pain alone can constitute a “disability” under 38 U.S.C. § 1110 because pain can cause functional impairment). However, the Board concludes that the Veteran does not have a present disability of the right ankle as he has not presented evidence of any functional loss or impairment due to right ankle symptoms including stiffness. The medical evidence shows that there is no functional impairment and the Veteran has not described any specific functional loss or impairment due to right ankle symptoms, including stiffness and/or pain. In summary, it is not disputed that the Veteran had right ankle injury during active service. However, competent and credible evidence showing a disability of the right ankle during the appeal period is not shown. The Veteran has neither identified nor produced any favorable medical examination or opinion to weigh in this matter. Accordingly, the claim is denied. There is no doubt to resolve. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to a compensable rating for a deviated nasal septum The Veteran has not made any specific contentions supporting his claim of entitlement to a compensable rating for deviated nasal septum. 3. The Board concludes that the preponderance of the evidence is against the claim for increase. Neither the lay nor the medical evidence more nearly reflect the criteria for a compensable rating. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, DC 6502. Deviated septum is rated under DC 6502, for traumatic deviation of the septum. Under that code, a 10 percent rating is warranted if there is a 50 percent or greater obstruction of the nasal passage on both sides or a 100 percent obstruction on one side. 38 C.F.R. § 4.97, DC 6502. An April 2015 VA examination reflect that, by history, deviated nasal septum condition had been stable since surgical intervention in service with no current symptoms or medications. The examiner did not find any symptoms attributable to the deviated septum. Objectively, nasal passages were open, not edematous, and without discharge. The examiner specifically found that there was not 50 percent obstruction on both sides or complete obstruction on one side due to traumatic septal deviation. The examiner found no current disabling condition associated with the Veteran’s deviated septum. There was no evidence of disfigurement or functional impairment associated with this condition. The Board accepts that the Veteran is competent to report that his disability is worse. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the evidence does not more nearly reflect the criteria required for a compensable evaluation at any time during this appeal. 38 C.F.R. § 4.7. Generally, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Although the Veteran believes he meets the criteria for a higher disability rating, the medical findings do not meet the schedular requirements for a compensable evaluation as they do not show nasal passage obstruction, which is required for a compensable evaluation under the schedule. To the extent that the Veteran may believe that he has nasal obstruction and, thus, warrants the assignment of a compensable evaluation, the Board finds that he is not competent to provide a medical opinion on such as he lacks the requisite medical expertise-it is noted that the percentage of obstruction would not be susceptible to lay observation. See Jandreau v. Nicholson, 492 F.3d. 1372 (2007). The Board has considered whether a compensable evaluation may be assigned under any other potentially applicable provision, but finds that there is no basis to assign a compensable evaluation under any other schedular criteria. However, there ar no pertinent physical findings, complication, conditions, signs and/or symptoms related to the condition. The percentage ratings contained in the Rating Schedule are intended to compensate for impairment in earning capacity and, here, no such impairment from deviated nasal septum is demonstrated by the evidence of record. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Board affords greater weight to the findings of the April 2015 VA examiner as this was prepared after examining the Veteran and addressed those criteria necessary to evaluate the disability. Also, there is no basis to stage the rating as the evidence shows no distinct period where the disability exhibited symptoms that would warrant a different rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. E., Associate Counsel