Citation Nr: 21026829 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 10-40 630A DATE: May 4, 2021 ORDER Service connection for a deviated nasal septum is denied. FINDING OF FACT A deviated nasal septum has not been demonstrated. CONCLUSION OF LAW The criteria for a deviated nasal septum have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from January 1979 to June 1999. This matter was previously before the Board of Veterans' Appeals (Board) in August 2020, at which time it was remanded for further development. The requested development has been completed and the matter is now ready for appellate review. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the 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 Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Veteran maintains that he currently has a deviated nasal septum that arises from injuries sustained in service when wrestling and fracturing his nose. Service treatment records do not reveal any findings or diagnoses of a deviated nasal septum. At the time of the Veteran's April 1999 service retirement examination, normal findings were reported for the nose. On his April 1999 service retirement report of medical history, the Veteran checked the "no" box when asked if he had or had ever had ear, nose, or throat trouble. At the time of an April 2010 VA general examination, physical examination of the nose revealed a normal septum, vestibule, turbinates, with no polyps. At the time of a February 2012 VA general medical examination, no abnormal findings were noted for the nose. VA treatment records do not contain any findings or diagnoses of a deviated nasal septum. The Veteran was afforded a VA examination in March 2019. At that time, there were no findings of a deviated nasal septum. X-rays taken revealed clear paranasal sinuses. There was no air fluid level. Bony calvarium was intact without evidence of a fracture. Facial bones were unremarkable and there was no soft tissue abnormality. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed inservice injury, event, or illness. The examiner indicated that the Veteran competitively wrestled during his years in the Navy and achieved the title of All-Navy wrestling champion from 1979-1986. Throughout competition, he suffered several nasal fractures. The examiner noted that the Veteran reported a deviated nasal septum as a result of the numerous nasal fractures. However, on his April 1999 retirement physical, the nose and sinus exam was documented as normal. On medical questionnaire for the retirement physical, the Veteran answered "no" to "ear, nose, or throat trouble." Additionally, the March 2019 VA examination did not reveal any deviated nasal septum. The examiner stated that due to a lack of physical evidence, there was no deviated septum that the Veteran appeared to have incurred during service. After reviewing all the evidence both lay and medical, service connection for a deviated nasal septum is not warranted. To date, there has been no medical evidence submitted or received demonstrating that the Veteran has a deviated nasal septum at any time throughout the appeal period. The Veteran was afforded the opportunity to submit evidence demonstrating a relationship between any deviated nasal septum and his period of service and has not done so. Moreover, the VA examiner indicated that the Veteran did not have a deviated nasal septum and had not been diagnosed as having a deviated nasal septum when revieing the file. Congress, as a general rule, limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110; and see Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C.§ 1110, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders. The Federal Circuit observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme. Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.§ 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability). Simply put, the general rule is that in the absence of proof of present disability there can be no valid claim. Based on the above, to the extent that the medical evidence addresses whether the Veteran has a deviated nasal septum, it indicates that he does not. The Veteran is competent to report his current symptoms, but his reports must be weighed against the medical evidence of record. See Grover v. West, 12 Vet. App. 109, 112 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent that the Veteran has indicated that he currently has a deviated nasal septum, the competent (medical) evidence does not reflect objective findings by an examining physician. The medical evidence showing an absence of such a disability is of greater probative weight than the Veteran's reports made during the course of his claim for VA benefits. The weight of the evidence is against a finding that the Veteran currently has a deviated nasal septum. A necessary element for establishing service connection-evidence of a current disability-has not been shown. For the foregoing reasons, the claim for service connection for a deviated nasal septum must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. S. Kelly, 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.