Citation Nr: 21068431 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-17 829 DATE: November 10, 2021 ORDER New and material evidence having been received; the claim for entitlement to service connection for deviated septum is reopened. Entitlement to service connection for chronic bronchitis is granted. Entitlement to service connection for deviated septum is granted. Entitlement to revision of the April 1996 rating decision that denied service connection for deviated septum on the basis of clear and unmistakable error (CUE) is denied. FINDINGS OF FACT 1. A rating decision denied entitlement to service connection for deviated septum; the Veteran filed a timely Notice of Disagreement as to the April 1996 rating decision in July 1996; a Statement of the Case (SOC) was issued in August 1996; the Veteran did not file a substantive appeal as to the August 1996 SOC. 2. Evidence received since the April 1996 rating decision is new and raises a reasonable possibility of substantiating the Veteran's claim for entitlement to service connection for deviated septum. 3. The evidence is at least in equipoise as to whether the Veteran's chronic bronchitis is related to service. 4. The evidence is in at least relative equipoise as to whether the Veteran's deviated septum was incurred in or otherwise related to service. 5. The correct facts, as known at the time, were before Department of Veterans Affairs (VA) adjudicators in April 1996 and the statutory and regulatory provisions extant at the time were correctly applied as to service connection for deviated septum. CONCLUSIONS OF LAW 1. The April 1996 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156 (b), 20.200, 20.202, 20.302, 20.1103. 2. New and material evidence having been received; the claim for entitlement to service connection for deviated septum is reopened. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. §§ 3.156 (a), 3.303. 3. The criteria for entitlement to service connection for deviated septum have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for deviated septum have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for entitlement to revision of the April 1996 rating decision on the basis of CUE with regarding the claim of service connection for deviated septum pursuant to 38 C.F.R. § 3.105 have not been met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to March 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal of July 2016 and February 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The RO denied the Veteran's claim for service connection for bronchitis in a July 2016 rating decision. New evidence was submitted within one year of that decision, and the RO again denied the Veteran's claim in a February 2017 rating decision. In July 2021, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance because the issue goes to the Board's jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis beyond consideration of whether the evidence received is new and material is neither required nor permitted. Barnett, 83 F.3d at 1384. New evidence is existing evidence not previously considered by VA. Material evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Deviated Septum In this case, the RO denied service connection for deviated septum in an April 1996 rating decision because there was no evidence of an in-service event, injury, or disease. Thus, service connection for deviated septum could not be established. The Veteran filed a timely notice of disagreement as to the issue in July 1996. In August 1996, the RO issued a Statement of the Case (SOC) as to the matter. The cover letter for the August 1996 SOC explained to the Veteran that, to appeal the issue to the Board, he would need to file a substantive appeal within 60 days of the cover letter or within the remainder, if any, of the one-year period from the date of the letter notifying him of the rating decision. The Veteran did not timely submit a substantive appeal as to the issue. Thus, the April 1996 rating decision is therefore final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Evidence associated with the record since the final April 1996 rating decision includes an October 2016 letter from the Veteran's private doctor. The private doctor opined that the Veteran's deviated was due to the Veteran's injury sustained in service. This evidence is new in that it was not previously considered by VA. It is also material because it provides evidence that relates to an unestablished fact necessary to substantiate the claim. As such, the private doctor letter raises a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran's claim for entitlement to service connection for deviated septum, and the claim is reopened. 38 C.F.R. § 3.156 (a). Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Bronchitis The Veteran contends that he is entitled to service connection for a bronchitis because he suffered from bronchitis during service and has continued to suffer from bronchitis continuously since service. There is evidence of a current disability. The record indicates that the Veteran has been diagnosed with chronic bronchitis. Next there is evidence of an in-service incurrence. The Veteran has a long-standing history of chronic bronchitis. Service treatment records indicate that he was treated for bronchitis during service. The question then turns to whether the Veteran's bronchitis in service is related to his post-service diagnosis. The Board finds that the evidence in support of a nexus and against a nexus is in relative equipoise and finds that service connection is warranted. The Veteran was afforded a VA respiratory conditions examination in June 2016 where he reported an onset of bronchitis in service in the 1970s. He reported frequent episodes during the year each lasting for several weeks. Bronchitis began following his tour in Vietnam and has persisted ever since. The examiner opined that it was less likely than not that the Veteran's current bronchitis was related to service. The examiner stated there were minimal findings of recurrent bronchitis during his service time, and his bronchitis has become more frequent in the past few years since service. The Veteran testified at the Board hearing that bronchitis started affecting him after his tour in Vietnam. He stated much of his treatment is not reported in his service records because he usually treated it with cold packs and antibiotics, rather than being formally grounded. The Veteran reported being grounded from flight several times in service due to his bronchitis. He testified bronchitis has plagued him continuously since service. The Board attaches probative value to the Veteran's lay statements as they relate to the issue of continuity of symptoms, but not to the issue of the etiology of the Veteran's current disabilities. The Veteran submitted a June 2019 private medical opinion from Dr. C.C., who opined that it is more likely than not that the Veteran's current bronchitis is related to his service. After reviewing the Veteran's service medical records, Dr. C.C. pointed out that the Veteran developed a chronic cough and recurrent bouts of acute bronchitis during service. Since separation the Veteran continues to have recurrent bronchitis several times a year with bouts of dyspnea and wheezing, which requires antibiotics and corticosteroids. With respect to a nexus between the Veteran's current bronchitis and in-service bronchitis, the Board notes that the record contains conflicting medical opinions. The United States Court of Appeals for Veterans Claims has stated that the probative value of medical opinion is based on the expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Further, the credibility and weight to be attached to these opinions are within the province of the adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As such, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board assigns minimal probative weight to the opinion of the June 2016 VA examiner. While the examiner pointed out that the Veteran's recurrent bronchitis in service was minimal, the examiner failed to address the Veteran's contention that he was continuously treating his chronic bronchitis in service with cold packs and antibiotics, rather than being formally grounded. The June 2019 private opinion is afforded some probative weight because it accurately describes the Veteran's record of symptoms in service and connects them to his current symptoms after reviewing the Veteran's service record and serving as his physician for a number of years. The private medical opinion in addition to the lay statements described above weigh in favor of the grant of service connection, while the negative nexus VA examination report and opinion weighs against the claim. The Board finds that the cumulative weight of the favorable evidence is at least equal to the weight of the negative evidence; and resolving doubt in favor of the Veteran, the claim of entitlement to service connection for bronchitis is granted. 2. Deviated Septum The Veteran seeks entitlement to service connection for a deviated nasal septum. Specifically, the Veteran reported being hit in the nose while breaking up a fight in July 1970 in Vietnam during service. Medical services were limited where he was located, so he was told to put a cold rag on his nose to treat it. A fellow service member, G.F., provided a March 2017 statement reporting that he witnessed the Veteran receiving a blow to the face while breaking up a fight in July 1970 in Vietnam. He stated the Veteran had a blackened eye and a sore nose the next day. The Veteran's medical examination in May 1969 shows a normal clinical evaluation of his nose and sinuses, and no noted defects. The July 1987 medical examination shows a deviated septum from an old nasal injury. Medical examinations in service in August 1988, July 1989, April 1991, July 1992, and June 1993 showed normal sinuses and nose. A July 10, 1995 VA examination showed no nasal septal deviation. A July 11, 1995 VA examination showed nasal deviation to the right. The Veteran underwent a VA examination for his deviated septum in December 2016. The examiner noted a mild leftward deviation of the nasal septum. The examiner stated that service medical records review shows no objective documentation to support evidence of nasal trauma or its treatment while in service. As there were no active complaints, abnormal findings on physical exams or treatment for. In fact, there were no disqualifying conditions as to the flying status of Pilot. Veteran maintenance of flying status with no waivers for this condition which is disqualifying for flying status is inconsistent with possible nasal trauma. Deviated septum is often developmental; otherwise, nasal trauma that possibly causes nasal deviation might occur at any period of time in life. If so, his years out of service outweigh years in service. Therefore, I cannot resolve without mere speculation if he ever sustained trauma. Based on reviewed service medical records and medical literature review it is less likely than not due to service. A March 2017 VA addendum opinion stated there is some evidence from the VA examination in July 1995 that the Veteran had a deviation of the nasal septum to the right. However, the recent nasal septal deviation was to the left as noted on the ENT. There are two different nasal septal deviations that are involved with no relationship to each other. An October 2016 letter from Dr. C.C. stated the Veteran has a deviated septum from a fight while in service. He stated the condition was not repaired at the time and it chronically causes reduction in air flow through the left nasal passage. During his July 2021 Board hearing the Veteran explained that when he was grounded from flying in service it was reported due to his bronchitis, however, he was actually also having problems with his septum. As to an in-service event, injury or disease the Veteran's service treatment records do not reflect complaints related to his deviated septum. However, at the Board hearing the Veteran testified that treatment in the field of battle was not available for his nose other than a cold rag. A fellow service member, G.F., confirmed that he witnessed the Veteran receiving a blow to the face in Vietnam. The Board notes that the inability to seek formal treatment is generally consistent with the conditions of the Veteran's service. See 38 U.S.C. § 1154 (a)(1). In addition, the Veteran is competent to report symptoms, such as pain, that he experienced while in service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As such, the Board finds there is evidence of an in-service injury of nose pain. Therefore, the question remaining for consideration is whether there is a causal relationship between the in-service nose pain and the Veteran's current deviated septum. With respect to a nexus between the deviated septum and in-service nose injury, the Board notes that the record contains conflicting medical opinions. The United States Court of Appeals for Veterans Claims has stated that the probative value of medical opinion is based on the expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Further, the credibility and weight to be attached to these opinions are within the province of the adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As such, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Against a finding of a nexus are the December 2016 and March 2017 VA opinions. The Board assigns these opinions minimal probative weight because they do not address the May 1969 medical examination showing a normal clinical evaluation of his nose and sinuses, and no noted defects. Nor do they address the July 1987 medical examination showing a deviated septum from an old nasal injury. In support of a nexus, Dr. C.C. stated the Veteran has a deviated septum from a fight while in service. He stated the condition was not repaired at the time and it chronically causes reduction in air flow through the left nasal passage. While the opinion does not contain an extensive rationale, Dr. C.C. based his opinion upon a review of the Veteran's record, and it is consistent with the service treatment records showing the Veteran had a normal septum in May 1969 and a deviated septum in July 1987 from an old nasal injury. This is also consistent with the Veteran's testimony, which the Board finds credible. Accordingly, the Board assigns the opinion of Dr. C.C. some probative weight. The record shows a diagnosis of deviated septum and there is credible lay and medical evidence of a septum injury in service. Considering the opinion evidence of record, as outlined above, the Board finds that the evidence is at least in relative equipoise as to the remaining element, nexus. As the evidence is in relative equipoise, service connection is granted. Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service-connection for deviated septum is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Clear and Unmistakable Error Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105 (a). For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id. For CUE to exist: (1) either the correct facts, as they were known at that time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the outcome would have been manifestly different if the error had not been made; and (3) the error was based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)). The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442. April 1996 Rating Decision on Service Connection for Deviated Septum The Veteran asserts CUE in the April 1996 rating decision that denied service connection for deviated septum. In April 1996, the RO denied the Veteran's service connection claim for deviated septum because there was no competent medical evidence of trauma or treatment for septum deviation in service. The Veteran did not timely submit a substantive appeal as to the issue. Thus, the April 1996 rating decision is therefore final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. At the time of the April 1996 rating decision, the "well-grounded claim" standard existed. The Court has defined a well-grounded claim as follows: "A well[-] grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [section 5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In addition, the Court held in Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (quoting section 5107(a)), that to be well grounded a claim must be accompanied by supportive evidence and that such evidence "must 'justify a belief by a fair and impartial individual' that the claim is plausible." Where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is required to fulfill the well-grounded-claim requirement of section 5107(a)." Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) The Veteran does not put forward any specific argument for a CUE for the denial of his claim for service connection for deviated septum. Any claim of CUE must be pled with specificity. Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff'd sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). This specific allegation must assert more than merely disagreement with how the facts of the case were weighed or evaluated. In other words, to present a valid claim of CUE the claimant cannot simply request that the Board reweigh or reevaluate the evidence. Crippen v. Brown, 9 Vet. App. 412 (1996). The Veteran has submitted numerous copies of documents from his claims file in support of his allegation of CUE. He has not, however, submitted any documents that show the correct facts were not before the adjudicators on any of these claims. The Veteran is essentially arguing the RO erroneously denied his claim, and he believes it should have been granted. While the Veteran asserted trauma to the nose in service, the RO based its April 1996 rating decision on the lack of evidence of trauma or treatment in service. This is, in essence, disagreement with how the RO weighed the evidence, which is not CUE. Thus, the Board finds that there was not CUE in the April 1996 rating decision. The Board finds that the correct facts, as known at the time, were before the VA adjudicators in April 1996 and the statutory and regulatory provisions extant at the time were correctly applied. Therefore, the motion to reverse or revise that decision must be denied. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. St. Laurent, 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.