Citation Nr: 21077190 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 13-34 122A DATE: December 28, 2021 ORDER Entitlement to service connection for a nasal disability is granted. FINDING OF FACT The evidence of record is at least in equipoise as to whether the Veteran's nasal disability was incurred during his period of active-duty service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for a nasal disability, to include septal perforation and sinusitis, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction is currently in the RO in Atlanta, Georgia. In February 2018, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. In April 2018 the Board remanded claims for service connection for posttraumatic stress disorder (PTSD), bilateral knee disabilities, bilateral foot disabilities, spine disability and a nasal disability. In February 2021, the RO granted service connection for PTSD, bilateral knee disabilities, bilateral foot disabilities and a spine disability. As these are considered a full grant of the claims on appeal, these issues are no longer before the Board. Entitlement to service connection for a nasal disability remains the only issue on appeal and is returned to the Board for adjudication. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). The Board must weigh any competent lay evidence and make a credibility determination as to whether it supports a finding of service incurrence; or, if applicable, continuity of symptomatology; or both, sufficient to establish service connection. See Layno v. Brown, 6 Vet. App. 465 (1994). The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). 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). 1. Entitlement to service connection for a nasal disability The Veteran contends that his nasal disability is due to service. See November 2009 Veteran statement. The Veteran has a current nasal disability. A July 2020 VA examination diagnosed the Veteran with non-allergic rhinitis. The Veteran testified that he broke his nose during a parachute jump and has experienced issues since service. Moreover, the Veteran provided a buddy statement corroborating this incident in service. See November 2009 Veteran Statement; see also May 2018 Buddy Statement. The Board finds the Veteran competent to make the above lay statements and finds his buddy statement corroborating his incident in service compelling. The Board has no reason to doubt the Veteran's credibility. The Board gives the Veteran's lay statements great probative value. See Layno v. Brown, 6 Vet. App.465, 469 (1994). The Board finds that the evidence is at least in relative equipoise as to whether the above incident occurred. Therefore, the second element is met. Thus, the remaining question is whether the Veteran's nasal disability is related to service. In April 2018, the Board remanded the claim on appeal for a VA examination and opinion on whether the Veteran's nasal disability is due to service. In July 2020, the Veteran was afforded an examination to determine the nature and cause of the Veteran's nasal disability. The examiner found that the Veteran's nasal disability was less likely than not due to service. In August 2020, the RO requested an addendum medical opinion from the examiner to provide a rationale for his opinion. In his addendum opinion, the examiner stated that his negative opinion was documented in error and found that the Veteran's nasal disability was at least as likely as not due to service. In October 2021, the RO requested another examination. The RO notified the examiner that while the "VA concedes the Veteran may have experienced a poor parachute landing ... there is no evidence or information showing the Veteran sustained a broken nose while on active duty ... Buddy statement indicating he witnessed the Veteran break his nose following a poor parachute landing cannot be corroborated." The RO asked the examiner to provide an additional addendum opinion to identify additional, if any, nasal diagnoses, and to opine on whether such was due to service. It was further noted for the examiner's consideration that "VA does not concede the Veteran sustained a broken nose while on active duty." In response to this request for an addendum opinion, the examiner found that the Veteran's nasal disability was less likely than not due to service. By way of rationale, the examiner found that medical literature does not support allergic rhinitis as being caused by a poor parachute landing causing a nose injury, rather, hay fever is a cause of allergic rhinitis. The examiner listed several risk factors that can increase the risk of developing hay fever, none of which the examiner described or determined the Veteran to have. The final opinion provided by the examiner is problematic for several reasons. A review of the record does not reveal any diagnosis of, or treatment for, hay fever, which the examiner noted as the cause of allergic rhinitis. Moreover, the July 2020 VA examination diagnosed the Veteran with non-allergic rhinitis and not allergic rhinitis. Finally, the requested clarification from the RO was unclear. As noted above, the RO conceded that the incident may have occurred, but the buddy statement could not be corroborated because there were no in-service treatment records documenting the incident. However, the Board finds that the buddy statement is per se corroboration of the Veteran's statement and notes that a lack of in-service treatment or documentation is not necessarily detrimental to a claim for service connection. Although the RO subsequently relied on the October 2021 VA examination opinion to deny the claim, the mere decision to obtain the opinion/further develop the claim was improper, as the nexus element of the claim had already been established. See 38 C.F.R. § 3.303. See, e.g., Mariano v. Principi, 17 Vet. App. 305 (2003) (providing that VA may not undertake additional development, such as scheduling an examination, if the sole purpose is to obtain evidence against a claim). Based on the evidence of record, and when resolving the benefit of the doubt in favor of the Veteran, the Board finds that service connection for a nasal disability is warranted. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelsey Love, 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.