Citation Nr: 21025103 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-04 882 DATE: April 27, 2021 ORDER Entitlement to service connection for a congenital deviated nasal septum, with rhinitis, is denied. REMANDED Entitlement to service connection for a kidney disorder is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for cardiomyopathy is remanded. Entitlement to service connection for a skin disorder, claimed as swollen lymph nodes, is remanded. Entitlement to service connection for headaches is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran has a congenital defect of deviated nasal septum that pre-existed service and there was no superimposed disability during active duty, and there has not been a continuity of symptomatology since service. CONCLUSION OF LAW The criteria for service connection of congenital deviated nasal septum with rhinitis are not met. 38 U.S.C. §§ 1110, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 1987 to June 1991. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. This case was previously before the Board in November 2018, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. Entitlement to service connection for a congenital deviated nasal septum with superimposed rhinitis is denied. The Veteran contends that he has a disability related to his military service including exposure to chemical agents and that he has suffered since his exposure. See, e.g., January 2014 Notice of Disagreement. Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). If a condition is not noted upon entrance into service, then to rebut the presumption of soundness at service entrance VA must show by clear and unmistakable evidence both that there was a pre-existing condition and that it was not aggravated during or by the Veteran’s service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was “due to the natural progression” of the condition. Joyce v. Nicholson, 443 F.3d 845 (Fed. Cir. 2006). If a pre-existing disability is noted upon entry into service, then the Veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. In that case, 38 U.S.C. § 1153 applies and the burden falls on him, not VA, to establish aggravation. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994); 38 C.F.R. § 3.306. Defects are defined as “structural or inherent abnormalities or conditions which are more or less stationary in nature.” VAOPGCPREC 82-90 (July 18, 1990). Congenital or developmental “defects” automatically rebut the presumption of soundness and are therefore considered to have pre-existed service. 38 C.F.R. §§ 3.303 (c), 4.9. Service connection is generally precluded by regulation for such “defects,” because they are not “diseases” or “injuries” within the meaning of applicable legislation. 38 C.F.R. §§ 3.303 (c), 4.9, 4.127; Terry v. Principi, 340 F.3d 1378 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174 (2007). VA’s Office of General Counsel has distinguished between congenital or developmental defects, for which service connection is precluded by regulation, and congenital or hereditary diseases, for which service connection may be granted, if initially manifested in or aggravated by service. VAOPGCPREC 82-90, VAOPGCPREC 67-90. The VA General Counsel draws on medical authorities and case law from other federal jurisdictions and concludes that a defect differs from a disease in that a defect is “more or less stationary in nature,” while a disease is “capable of improving or deteriorating.” VAOPGCPREC 82-90 at para. 2. In this regard, the presumption of soundness does not apply to congenital defects because such defects “are not diseases or injuries” within the meaning of 38 U.S.C. §§ 1110 and 1111. 38 C.F.R. § 3.303 (c); Terry, 340 F.3d at 1385-1386 (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is “not the type of disease- or injury-related defect to which the presumption of soundness can apply”). However, a congenital defect can still be subject to superimposed disease or injury. VAOPGCPREC 82-90. If such superimposed disease or injury does occur, service connection may be warranted for the resulting disability. Id. 38 C.F.R. § 4.97, Diagnostic Code 6502 allows service connection for a deviation of the septum only in cases where the septum was due to trauma. For certain chronic diseases, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff’d sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or, (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. 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 (1990). In the present case the evidence shows the Veteran has a congenital defect of a deviated nasal septum that pre-existed service and there was no superimposed disability during service. The Veteran was afforded a VA examination, as part of his claim, in July 2015. The examiner diagnosed the Veteran with a deviated nasal septum. The examiner stated that the Veteran’s deviated nasal septum was a disease with a clear and specific etiology and diagnosis and was not related to a specific exposure event during service because it was congenital. The examiner opined it was temporarily aggravated by the other nasal symptoms but there was not a permanent aggravation. The examiner stated that the Veteran’s symptoms were consistent with allergic rhinitis and increased nasal obstruction and those symptoms had resolved. The Veteran was afforded an additional VA examination in August 2020. The examiner stated that the nasal blockage symptoms and temporary rhinitis symptoms that the Veteran had reported were likely non-allergic in nature. The examiner noted the Veteran’s exposure to a significant level of environmental contaminants and noted that such exposure would not cause allergic rhinitis, but would rather cause an irritant rhinitis. The examiner noted the Veteran’s exposure to the environmental contaminants would have only potentially caused acute nasal or respiratory symptoms, not chronic symptoms, and noted that the Veteran’s separation examination in May 1991 showed a normal nose exam and the Veteran denied ear, nose, or throat trouble. The examiner further noted that in January 1993, when the Veteran was not on active duty, he also denied ear, nose, or throat trouble. Based on that evidence the examiner opined that it was unlikely the Veteran experienced any chronic effect from his exposure to environmental contaminants. The examiner stated that the Veteran’s deviated nasal septum was a congenital defect and that his exposure to gases may have caused temporary acute nasal symptoms, but did not cause any chronic or residual effect. The VA examiners identified the Veteran’s deviated naval septum to be a congenital defect; as such it is not a disease or injury for VA compensation purposes. 38 C.F.R. § 3.303. A preponderance of the evidence is against finding that there was a superimposed disease or injury. Both VA examiners opined that the aggravation of the Veteran’s deviated naval septum was temporary in nature. The Board concedes that the Veteran suffered an in-service event, injury, or illness, including exposure to significant levels of sulfur dioxide and hydrogen sulfide gas. See May 1991 Service Treatment Records. However, the August 2020 examiner stated that such exposure may have caused temporary acute nasal symptoms, but did not cause any chronic or residual effect. The August 2020 VA opinion is based on an accurate medical history, a review of the record, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Because of this, the opinion is probative. Notably, the examiner cited to two medical examinations that occurred after the Veteran’s conceded exposure to environmental contaminations in May 1991. In both the separation examination and the January 1993 examination the Veteran denied ear, nose, and throat trouble. The Board acknowledges the Veteran’s report that he experienced chronic symptoms after his exposure to gases. The Veteran is competent to report nasal symptoms. However, these reports are not consistent with the record. As discussed above, the Veteran specifically denied ear, nose, and throat trouble at multiple examinations after his exposure to gases. Thus, the Board does not find the Veteran’s reports of continuing symptoms credible, as they are contradicted by objective evidence and his own contemporaneous reports to medical providers. See, e.g., Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Further, the Veteran in this case is not competent to provide a medical opinion regarding this issue. The issue is medically complex, as it requires knowledge of multiple anatomical systems and how they react. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau, 492 F.3d at 1377 n.4; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA opinions. The Board notes that the July 2015 opinion was previously found to be inadequate by the Board in November 2018. Nevertheless, the opinion does not support the Veteran’s claim. More importantly, the Board has found the August 2020 opinion to be probative evidence against the Veteran’s claim. The only evidence in support of the claim consists of the Veteran’s lay statements. The Veteran is competent to relate symptoms within the realm of his personal knowledge. Layno, 6 Vet. App. at 470; Jandreau, 492 F.3d at 1377. However, he is not competent to offer opinions on complex medical questions requiring specialized knowledge, such as the identification of ear, nose, and throat disabilities. As discussed above, a VA medical professional has reviewed the record and opined that the Veteran does not manifest an ear, nose, and throat disability that is due to his service. Instead, the August 2020 examiner found that the Veteran manifested a congenital deviated septum defect, which is not a disease or injury within the meaning of applicable legislation. For these reasons, the Board concludes that the preponderance of the competent evidence of record is against a finding that the Veteran has a deviated nasal septum with superimposed rhinitis that was incurred in, or is otherwise the result of active service. In light of the foregoing, the Board must find that the weight of the evidence is against the Veteran’s claim. In reaching that decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § §§ 4.3, 4.7. The appeal of this issue must be denied. REASONS FOR REMAND Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims and to afford him every possible consideration. 1. Entitlement to service connection for a kidney disorder is remanded. 2. Entitlement to service connection for hypertension is remanded. 3. Entitlement to service connection for cardiomyopathy is remanded. In his December 2012 Statement in Support of Claim, the Veteran contended that his medical conditions were directly related to what he viewed was combat stress. He reported that due to his PTSD he had to be hospitalized because his blood pressure “went sky high.” Although there are multiple VA examinations in the record none of them address whether the Veteran’s disabilities are secondary to his service-connected PTSD. As such a remand is necessary. Further, a remand is necessary for a medical professional to address relevant evidence of record. March 2011 VA treatment records state that the Veteran had no previous history of hypertension except for 30 days of hypertension in 1991. Although contemporaneous records note the Veteran had no past medical history, the record also demonstrates that March 2011 VA treatment records noted that the Veteran had “long-standing hypertension.” The May 2019 VA examiner noted that the Veteran was diagnosed with hypertension in March 2011 and was diagnosed with hypertension 20 years post military charge. However, the examiner did not address whether the Veteran had hypertension prior to March 2011 including the Veteran’s report of hypertension in 1991 and the March 2011 VA treatment note that the Veteran had a long standing history of hypertension. In January 2014 Notice of Disagreement, the Veteran reported that his symptoms have been chronic since service and his lay report of chronic symptoms was not addressed. The May 2019 VA examiner opined that the Veteran’s current Goodpasture’s syndrome with kidney disease is less likely than not related to exposure to environmental exposures. To support this rationale the examiner stated, in part, that the Veteran was diagnosed with Goodpasture’s disease/kidney disease in 2011 and there was a lack of medical documentation between 1991 and 2011. However, the September 2013 examiner stated that the Veteran was diagnosed with Goodpasture’s disease ten years after military service. Because the May 2019 examiner did not address this evidence that the Veteran’s Goodpasture’s disease was diagnosed ten years after service, an addendum opinion is warranted. 4. Entitlement to service connection for a skin disorder, claimed as swollen lymph nodes, is remanded. At a May 2019 VA examination, the examiner opined that it was less likely than not that the Veteran’s facial and thigh abscesses were proximately due to or the result of the Veteran’s exposure to environmental hazards. To support this conclusion, the examiner noted the Veteran had a conceded exposure to toxins in the Gulf War and opined that the conditions were not related to exposure to environmental hazards while stationed in Southwest Asia. However, the examiner did not discuss relevant service treatment records related to the Veteran’s claim. In April 1991, shortly after the Veteran’s conceded in-service exposure to environmental contaminants, the Veteran presented for treatment of a swollen gland in the neck and open sore to the chin. Because the examiner did not discuss the medical significance, if any, of this in-service treatment, an addendum opinion is necessary. 5. Entitlement to service connection for headaches is remanded. 6. Entitlement to a TDIU is remanded. In November 2018, the Board found that the Veteran’s claims for headaches and a TDIU were inextricably intertwined with the claims being remanded. As such a remand of these claims is necessary pending readjudication of the issues above. The matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. To the extent possible, make arrangements to provide the record on appeal to the VA examiner who previously offered opinions with respect to the etiology of the Veteran’s kidney disorder, cardiomyopathy, and hypertension in May 2019. The examiner should be asked to again review the expanded record and prepare a supplemental report as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has kidney disorder, cardiomyopathy disability or a kidney disability that had its onset during, or is otherwise related to, the Veteran’s military service, to include the Veteran’ conceded in-service exposure to environmental contaminants. If it is the examiner’s opinion that it is unlikely that an identified disability had its onset in, or is otherwise attributable to, service, the examiner should offer a further opinion as to whether it is at least as likely as not that such disability has been caused or aggravated by a service-connected disability, to include the Veteran’s service-connected psychiatric disability. In so doing, the examiner should consider and discuss the medical significance, if any, of the Veteran’s in-service exposure to environmental contaminants, March 2011 VA treatment records indicating the Veteran had hypertension in 1991, March 2011 VA treatment records indicting the Veteran had long standing hypertension, the September 2013 examiner statement that the Veteran was diagnosed with Goodpasture’s disease ten years after military service, and the Veteran’s January 2014 statement that his symptoms have been chronic since his service. If the May 2019 examiner is unavailable, arrange to obtain the requested information from another qualified examiner. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete rationale for all opinions expressed must be provided. 3. To the extent possible, make arrangements to provide the record on appeal to the VA examiner who previously offered opinions with respect to the etiology of the Veteran’s skin disorder in May 2019. The examiner should be asked to again review the expanded record and prepare a supplemental report as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has a skin disorder, to include swollen lymph nodes that had its onset during, or is otherwise related to, the Veteran’s military service, to include his conceded in-service exposure to environmental contaminants. In so doing, the examiner should discuss the medical significance, if any, of the fact that the Veteran’s service treatment records in 1991 demonstrate he sought treatment for a swollen gland in the neck and open sore to the chin. If the May 2019 examiner is unavailable, arrange to obtain the requested information from another qualified examiner. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Roya Bahrami Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.