Citation Nr: 18149530 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 14-35 819 DATE: November 9, 2018 ORDER Service connection for a deviated nasal septum is denied. Service connection for obstructive sleep apnea is denied.   FINDINGS OF FACT 1. A deviated nasal septum is not shown. 2. Sleep apnea is not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a deviated nasal septum have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1971 to August 1975. This case comes from a March 2012 rating decision. In November 2017, the Veteran appeared at a videoconference Board hearing. Additional evidence was submitted and initial RO consideration was waived. See 38 C.F.R. § 20.1304(c). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection 1. Service connection for a deviated nasal septum. 2. Service connection for obstructive sleep apnea. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. Analysis The Veteran seeks service connection for a deviated nasal septum and obstructive sleep apnea. He asserts that both conditions are related to facial trauma sustained during service, and that sleep apnea also may be due to a deviated nasal septum. Service treatment records dated between September 1971 and February 1972 reference a motor vehicle accident (MVA) during service and a deviated nasal septum was noted. In addition, a fracture of the nasal bone with reduction of the left nasal bone was reported, and it was suggested that a septoplasty might be required in two to three months. After service, a March 2012 VA examiner determined that trauma to the Veteran’s nose during service was acute and self-limited. No current deviated septum or sinus condition was reported. The Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A medical diagnosis is not categorically required to establish the current disability element of a service connection claim. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Here, the Board finds that the current disability element for the claim regarding a deviated nasal septum is not met. The March 2012 VA examination did not reveal the claimed condition or similar condition, including after diagnostic testing. Significantly, the examiner also found that the claimed condition did not result in any functional impact. Without functional impairment, a non-diagnosed condition cannot serve to show a current disability. Id. Private treatment records in November 2017 reflect obstructive sleep apnea was diagnosed in August 2013 based upon results of a polysomnogram. Use of a CPAP device was noted. In May 2018, in accordance with 38 U.S.C. § 7109 and 38 C.F.R. § 20.901, the Board obtained a medical expert opinion from the Veterans Health Administration (VHA) regarding the sleep apnea claim, which was received in July 2018. The author of the opinion is an otolaryngologist at a VA Medical Center; thus, a medical professional with expertise in this area of medicine. The VHA opinion states that obstructive sleep apnea is the result of relaxation of the upper airway musculature near the base of the tongue and that the Veteran’s obstructive sleep apnea is not related to service. Although the Veteran submitted an article from an oral and facial surgery medical practice in December 2017 noting that risk factors for developing obstructive sleep apnea included facial trauma leading to distorted airway passages, the VHA opinion specifically states that isolated nasal trauma not involving the maxilla and mandible has no direct causal effect on obstructive sleep apnea syndrome. In addition, and although the Veteran asserted at the Board hearing in November 2017 that he would not have sleep apnea and or breathing problems had the recommended septoplasty during service been performed, the VHA opinion notes that even if the Veteran had had surgical correction of his deviated nasal septum resulting in perfect nasal airway, he would still have obstructive sleep apnea. The opinion notes that isolated nasal obstruction due to a deviated nasal septum is not the cause of the Veteran’s sleep apnea. The Board notes that, although the Veteran is competent to report his symptoms, such as breathing and sleep problems, a determination as to whether the Veteran currently has a deviated nasal septum and whether Veteran’s current obstructive sleep apnea is related to service are complex matters requiring related medical expertise. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues). As the Veteran has no known or reported medical expertise, he is not legally competent to diagnose a current deviated nasal septum or to establish a nexus between sleep apnea and service; thus, his opinions as to diagnosis and/or causation lack probative value, and an opinion by a qualified medical expert is required to decide the claims. In that regard, the opinions rendered by the March 2012 VA examiner and the May 2018 VHA expert, a VA otolaryngologist, constitute such competent medical evidence. Further, as the opinions are unequivocally stated, consistent with the record, and supported by cited evidence of record, the Board finds that the medical opinions are probative evidence against the Veteran’s claims. That is, the medical evidence outweighs the Veteran’s report of a continuity of symptomatology and his lay opinions on the matter, even if such a theory is intuitively plausible to a lay person. The May 2018 VHA physician directly addressed the contention that the in-service facial trauma could lead to sleep apnea. Thus, the Board finds that the evidence weighs against a nexus between the Veteran’s current sleep apnea and his service, including in-service facial trauma. Moreover, as service connection is not in effect for deviate nasal septum, service connection may not be granted on a secondary basis. See 38 C.F.R. § 3.310. Therefore, as the preponderance of the evidence is against the claims, there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, service connection for a deviated nasal septum and obstructive sleep apnea is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. TAYLOR