Citation Nr: 1807021 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 09-13 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for residuals of a nose fracture. 2. Entitlement to service connection for a nasal condition, to include as secondary to residuals of a nose fracture. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Hubers, Counsel INTRODUCTION The Veteran served on active duty from January 1977 to February 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before the Board in May 2014. The record contains a transcript of the hearing. The Veteran was notified that the VLJ who conducted the hearing has retired and was given the opportunity to have another hearing; he declined in his November 2017 response. See also December 2017 Report of Contact (clarifying ambiguous markings on the response form). In September 2016, the Board remanded the above claims for further development and readjudication. The RO substantially complied with the Board's remand instructions, so the Board may proceed to the merits of the claims. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). The Veteran has claimed entitlement to service connection for sinusitis and a nasal condition. The Board finds a broader characterization of the claim previously characterized as a sinusitis claim is warranted on the facts of this case including a VA examination that diagnosed only allergic rhinitis. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant."). FINDINGS OF FACT 1. The Veteran does not have, and has not had during the appeal period, a disability consisting of residuals of a nose fracture. 2. The Veteran's allergic rhinitis was not incurred in or caused by any event or injury during the Veteran's active service including the in-service nose fracture, allergic rhinitis, and upper respiratory infections. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a nose fracture have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2017). 2. The criteria for service connection for a nasal disability, to include sinusitis and allergic rhinitis, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The points below focus on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. I. Service Connection: General Principles Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Where the veteran asserts entitlement to service connection for a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service or diagnosis within the presumptive period after service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). The Veteran's claim relates to sinusitis and allergic rhinitis, neither of which are included in the list of chronic disease, so the provisions relating to continuity of symptomatology do not apply to the claims on appeal. In addition, secondary service connection is warranted if the evidence establishes that, at least as likely as not, the claimed condition was caused by or aggravated by a service-connected condition. See 38 C.F.R. § 3.310; Buckley v. West, 12 Vet. App. 76, 84 (1998); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Under 38 C.F.R. § 3.310 (b), any increase in severity of a nonservice-connected disease that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the disease, will be service-connected. The Veteran has offered his own lay opinion that he has residuals of his in-service nasal fracture and that there is a causal nexus between in-service events and his current nasal disabilities (diagnosed as allergic rhinitis). However, diagnosing any such condition and determining the existence of any etiological link to in-service occurrences would require medical knowledge, training, and/or experience. The record does not reveal that the Veteran has any education, training, or experience that would equip him to conduct the medical analysis necessary to reach a reliable opinion with respect to the proper diagnosis or causation of subjectively observable symptoms. The Board finds that his diagnostic and etiological opinions are not competent evidence in the circumstances of this case. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir. 2009); King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012). II. Service Connection: Residuals of a Nose Fracture The Veteran alleges that he suffers residuals from an in-service nose fracture. The in-service nose fracture is conclusively established with contemporaneous documentation of the Veteran's request for treatment and his credible testimony regarding the in-service injury and surgery. See, e.g., August 1977 Application for Medical Benefits (VA Form 10-10) (indicating the Veteran "was in a car wreck"); August 1977 Application for Medical Benefits (second VA Form 10-10) (seeking medical benefits for treatment of "nose"); July 2014 Board Hearing Tr. at 4-5 (discussing accident, nose fracture, and subsequent surgery). The Veteran underwent an August 2014 VA examination with respect to his claim relating to residuals of a nose fracture. The examiner diagnosed allergic rhinitis and indicated the Veteran had no other diagnosable conditions. The examiner reviewed imaging results which indicated no fracture and a septum in the midline, though the Veteran "would not cooperate with positioning." The examiner noted that the Veteran was "very uncooperative with nasal exam." He also noted that the Veteran's stated history of sinus problems "does not mean still has [sic] present." The examiner opined that the medical documentation does not support that the Veteran has a chronic sinus problem related to the in-service events. In February 2017, pursuant to this Board's remand, VA obtained an addendum opinion from the August 2014 VA examiner. The examiner stated: "There was no swelling of nasal mucosa or obstruction noted, no watery discharge, swollen conjunctiva or allergic shiners, noted, no frequent throat clearing observed. There was [sic] no physical finding of allergic rhinitis noted on C&P exam." VA obtained an additional addendum opinion from the 2014 VA examiner in August 2017. The examiner discussed the available in-service and post-service treatment records and noted that allergic rhinitis is caused by a nasal reaction to small airborne particles called allergens. Finally, in September 2017, VA obtained a medical opinion on the issues in this appeal. The VA examiner noted that the Veteran was a credible witness and could report his prior injuries. The examiner provided a summary of the medical record and opined that the Veteran's allergic rhinitis was "less likely than not" proximately due to and/or was aggravated by military service and/or fracture of the nose. The examiner provided a thorough rationale, including that the in-service conditions appeared to be "acute, transient, and self-limited", that there is a long gap between Veteran's discharge and the initial post-service documentation of sinus issue, and that there were no imaging studies or other medical records to support finding that there are any residual structural defects related to a nose fracture that might cause or contribute to a current disability (including any record of a "chronicity and/or continuity of disability"). The examiner also noted that the current radiographic studies and VA examination were limited due to the Veteran's lack of cooperation. The above competent medical evidence indicates that the Veteran does not have any current residuals of the established in-service nose fracture (and associated in-service treatment). To the extent a more thorough VA examination or better imaging studies might have revealed disability, the Veteran's lack of cooperation contributed to the limited nature of the report on the August 2014 VA examination. See September 2017 VA Examiner's Opinion (noting lack of cooperation during the August 2014 VA examination limited the available medical evidence); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that VA's duty to assist is not always a one-way street); accord 38 C.F.R. § 3.655(b) (setting forth potential consequences when a veteran fails to appear for a scheduled examination). Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. §§ 1110, 1131. Accordingly, because the greater weight of the evidence is against finding that, during the appeal period, the Veteran has had any residuals of the nose fracture, the criteria for establishing service connection for a residuals of a nose fracture have not been met. 38 C.F.R. § 3.303; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("In the absence of proof of a present disability there can be no valid claim."); see also Gilpin v. West, 155 F.3d 1353, 1355 (Fed. Cir. 1998). The evidence is not in equipoise, but is against the Veteran's claim. The benefit of the doubt rule does not apply, and the Veteran's claim is denied. See 38 U.S.C.A. § 5107 (West 2014). III. Service Connection: Nasal Condition (Sinusitis, Allergic Rhinitis, or Other) The Veteran alleges that he has a current nasal condition (claimed as sinusitis and/or allergic rhinitis) that is related to his active service or to residuals of his nose fracture. Notably, the Veteran is not service-connected for residuals of a nose fracture and, as discussed above, the Board has determined that he does not have residuals of a nose fracture. Therefore, the Veteran's theory of secondary service connection based on that condition is not viable and will not be discussed further. The Veteran has not alleged and there is no support in the record for any contention that the Veteran's allergic rhinitis is related to one of his other service-connected conditions. The theory of entitlement to service connection as secondary to another condition has no merit. With respect to direct service connection, the medical evidence and opinions have been discussed above. There are multiple in-service events, including the nasal fracture with associated treatment, rhinitis, upper respiratory infections, and other medical conditions. An in-service event or injury is established. There is some doubt in the record regarding whether the Veteran has had allergic rhinitis during the appeal period. For example, the August 2014 VA examiner stated in a February 2017 Addendum Opinion that the rhinitis was by history and that the current findings did not indicate rhinitis was present. However, the August 2014 VA examination indicates a current diagnosis of allergic rhinitis. Therefore, giving the Veteran the benefit of every doubt, the Board finds that the Veteran has had allergic rhinitis during the appeal period. Importantly, the evidence is against finding that the Veteran has had any other nasal disability (e.g., sinusitis) during the appeal period. See August 2014 VA Examination (including only allergic rhinitis in the diagnosis section and specifically indicating the absence of any other nasal condition). A current disability consisting of allergic rhinitis has been established. Consequently, the remaining element is a nexus between an in-service injury or event and the Veteran's current allergic rhinitis. The opinions of record have been summarized in the prior section and will not be repeated. For various reasons, the Board found the opinions prior to 2017 to be inadequate, so assigns them no probative value. The Board also assigns no probative value on the nexus issue to the February and August 2017 addendum opinions. However, the September 2017 VA examiner's opinion is detailed, thorough, and does not rely solely on the absence of in-service records or post-service treatment records for reaching a negative conclusion. The examiner discussed the nature of the in-service illnesses and determined they were acute and resolved. Moreover, the examiner noted that the record does not support finding that there were residuals of the nasal fracture which provided support for the conclusion that the current allergic rhinitis was not related to the in-service nasal fracture (which appears to have resolved without residuals). The Board assigns the opinion probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There are no competent favorable nexus opinions. Therefore, the entirety of the probative evidence on the nexus issue is against the Veteran's claim. The evidence is not in equipoise, but is against the Veteran's claim. The benefit of the doubt rule does not apply, and the Veteran's claim is denied. See 38 U.S.C.A. § 5107 (West 2014). VI. Duties to Notify and Assist The Veteran has not raised any specific 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 a duty to assist argument). He has, however, claimed various Constitutional rights have been violated, that the Board's remand to develop evidence was illegal, that there has been malice in the way his claims have been handled, etc. See, generally, November 2017 statement. Upon review of the record, there is nothing to suggest his grievances are in any way warranted. Further, the Veteran has not alleged any specific deficiency with the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for residuals of a nose fracture is denied. Entitlement to service connection for a nasal condition, to include as secondary to residuals of a nose fracture is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs