Citation Nr: 21067686 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 19-11 944 DATE: November 5, 2021 ORDER Entitlement to service connection for a deviated septum is denied. Entitlement to service connection for obstructive sleep apnea as secondary to a deviated septum is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a deviated septum began during active service, or is otherwise related to an in-service injury or disease. 2. The Veteran's obstructive sleep apnea is not secondary to a service-connected disability, and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a deviated septum are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for obstructive sleep apnea as secondary to a deviated septum have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1998 to March 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2018 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before the undersigned Veterans Law Judge in February 2021. A transcript of the hearing is of record. SERVICE CONNECTION 1. Entitlement to service connection for a deviated septum The Veteran asserts that he is entitled to service connection for a deviated septum. Generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). During the Veteran's February 2021 Board hearing, the Veteran testified that, in 1998, he was kicked in the nose while trying to break up a fight in his barracks. He stated that he sought treatment at a troop medical clinic and then a civilian hospital and clinic. The Veteran reported that he attempted to retrieve his private medical records from the incident, but was told that the records were either lost or destroyed. Review of the Veteran's service treatment records (STRs) do not reveal any complaints, diagnosis, or treatment for a nose injury. There is also no documentation of a deviated septum. On a December 2001 report of medical history, the Veteran expressly denied having issues with his nose or breathing. VA medical treatment records from May 2004 to January 2008 made notations that the Veteran's nose was normal. Past medical history for the Veteran was documented as chronic PTSD; anxiety; neck pain; hearing loss; degenerative joint disease of the legs; microscopic hematuria, and joint pain of the left leg. VA treatment records from November 2017 document the Veteran reporting a history of a deviated nasal septum due to a 1998 nose injury. The Veteran stated that he had trouble breathing through his nose. The Veteran further reported that the pain in his nose was severe and started years ago. The Veteran submitted a statement from a friend in support of his claim in June 2018. In the statement, the friend reported that he witnessed the Veteran getting kicked in the nose while attempting to break up a fight in July 1998. He reported that the Veteran was bleeding from his nose and the back of his head; and that the Veteran's nose was noticeably crooked. The friend also stated that the Veteran sought treatment the next morning for his injuries at the Troop Medical Clinic. In June 2018, the Veteran appeared for a VA examination for his nose condition. The Veteran reported that his injury took place in July 1998 when he was kicked in the face in the barracks at Fort Braggs. He reported that he went to the clinic and was diagnosed with a broken nose. He stated that his nose condition has been the same since its onset with an obstructed right nasal passage and symptoms of loud snoring and a runny nose. The examiner noted that the Veteran had a deviated nasal septum and non-allergic rhinitis. The examiner opined that the Veteran's deviated nasal septum was at least as likely as not related to his military service. The examiner explained that a buddy statement noted that the Veteran had a bloody and crooked nose after breaking up a fight during service, which is consistent with a traumatic deviated septum. Upon reviewing all of the pertinent evidence of record, the Board finds that entitlement to service connection for a deviated septum is not warranted. While there is evidence of a current diagnosis, the evidence does not support a finding of an in-service injury. In this regard, the only evidence suggesting that the Veteran was kicked in the face in July 1998 is his own statements, as well as the statements of a close friend. The medical evidence of record (to include the Veteran's STRs) does not indicate that the Veteran had broken his nose in 1998 until November 2017 when he complained of severe pain in his VA treatment records. Throughout the Veteran's medical records, he reported a history of other ailments and surgeries but expressly denied having issues with his nose and did not mention that it was broken in 1998. Accordingly, the Board finds the Veteran's and his fellow soldier's statements to be not credible in terms of establishing an in-service event. As such, the Board finds that the second element of service connection has not been satisfied. Moreover, the Board affords the June 2018 VA medical opinion little probative value. In this regard, the VA examiner based the entire medical opinion on a buddy statement and did not consider or address the available medical evidence of record. In sum, the examiner did not provide adequate medical reasoning and bases for this conclusion. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims for service connection for a deviated septum. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 2. Entitlement to obstructive sleep apnea as secondary to a deviated septum The Veteran also asserts that he is entitled to service connection for obstructive sleep apnea as secondary to his deviated septum. Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). While the medical evidence of record confirms that the Veteran has a current diagnosis of obstructive sleep apnea, the Veteran is not service connected for a deviated septum. Further, the Veteran has not asserted that his obstructive sleep apnea is related to his military service directly or to a service connected disability. The Veteran has only asserted that his sleep apnea is related to his deviated septum, which is not service connected. Consequently, the Veteran's claim does not satisfy the second element for service connection, and entitlement to service connection for obstructive sleep apnea as secondary to a deviated septum is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for service connection for obstructive sleep apnea as secondary to a deviated septum. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. K. Hall, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.