Citation Nr: 21030958 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 18-24 904 DATE: May 20, 2021 ORDER Entitlement to service connection for a nasal disability, to include septal perforation and sinusitis, 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 The Veteran served on active duty in the United States Marine Corps from October 2006 to June 2010. The matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2016 rating decision. In March 2021, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing is of record. Entitlement to service connection for a nasal disability The Veteran claims entitlement to service connection for a nasal disability as a result of his military service. He contends that he has a problem with his nasal passages that began during his military service. He also contends that he never had any nasal problems before he was deployed. He contends that during his deployment to Iraq, he was subjected to extreme heat, extreme dust, and very poor air quality; he believes that this environment is what started his current problems. He was in many sandstorms, about one per week, and his nasal passages became dry and started to cause him problems. He contends that the problems he was having did not rise to a level that required him to seek medical treatment; he was in a war zone and he did not go see a medic because his nose was dry and hurt. He contends that he continues to have nasal problems from his deployment to the present; the symptoms were the same as what he had during his service, but they have continued to worsen. See April 2016 Notice of Disagreement; see also May 2018 VA Form 9. 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). Direct service connection may not be granted without evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1112; 38 C.F.R. § 3.304. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a) (2012); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). 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). The record reflects that the Veteran has a current nasal disability; the record indicates that the Veteran was found to have a septal perforation, and he also has been diagnosed with chronic sinusitis. See September 2013 VA treatment records; see also March 2018 VA examination report. The question for the Board is whether the Veteran current nasal disability began during service or is at least as likely as not related to an in-service injury, event, or disease. Although the Veteran's service treatment records do not document any complaints, diagnosis, or treatment of a nasal condition, the Veteran has testified credibly about his in-service symptoms, his exposure to extreme heat and dry conditions, and the reasons for his failure to seek treatment for his symptoms during service. During his hearing, the Veteran competently and credibly testified that during his service in the Middle East, sandstorms were fairly regular, and were sometimes so bad you couldn't see the truck in front of you. He also testified that he was exposed to a lot of burn pits while in service, and that that could play into why the structure of his nose is not how it once was. He testified that even with the masks they wore, they would often have to remove sand from their noses in order to get temporary relief and to keep from getting clogged up. He testified that he also got punched in the face a handful of times going through the Marine Corps Mixed Marital Arts Program. He testified that he did not go see the doctor about his nasal conditions while he was there and, though his nose was annoying, he didn't really think about when he got out. He testified that it wasn't until later on, when he started living with his wife again, and she started complaining about his nose whistle, that he wanted to find out if there was more to it; at that point he went to the VA ear, nose, and throat (ENT) doctor and was told he had a hole in between his nose. He testified that he was told that there isn't a whole lot they can do in terms of fixing it unless the nose just falls apart, so he did not keep going to the doctor and complaining. See March 2021 Hearing Transcript. The Veteran has reported chronic nasal obstruction, chronic mucus build-up, and a frequent whistle when breathing that bothers him and his wife. He has reported his in-service exposure to severe dry conditions and frequent sandstorms when seeking treatment for his nasal conditions. See September 2013 VA treatment records. He has reported that he has had the whistling noise since he first came back from overseas. He has also reported that, when it is very dry outside, he will sometimes notice some bleeding/pain and increased whistling noise. The Veteran has additionally reported that he had a "burn pit" during his time in the service and has wondered if his condition is due to any of the potential chemicals/fumes he could have inhaled. See January 2019 VA treatment records. The record reflects that, during his September 2013 VA ENT consult, the physician noted that his septal perforation is likely the cause of his symptoms and that, given no prior nasal surgery/trauma, no intranasal drug use, and no systemic symptoms of autoimmune disease, they suspect that this may be from excessive dryness. See September 2013 VA treatment records. The Veteran was afforded a VA Sinusitis/Rhinitis and Other Conditions of the Nose, Throat, Larynx, and Pharynx examination in April 2018. During the exam, the VA examiner noted that the Veteran had been diagnosed with chronic sinusitis in 2013. The Veteran reported that the date of onset of the symptoms was 2010-2011, that the condition began after deployment, and that he ended up with a hole in his nose. He reported that he saw a VA ENT in 2013-2014, that the condition has worsened, and the hole has gotten larger and the nose whistle worse. During the exam, the examiner noted that the Veteran had no current signs or symptoms attributable to chronic sinusitis. He noted that a July 2013 CT showed chronic ethmoid/maxillary sinuses, but that 2018 sinus x-rays were unremarkable. The examiner noted that the Veteran's March 2010 separation exam showed a normal nose exam and no nasal, sinus, or hay fever complaints. He also noted that a September 2013 ENT note showed an assessment of septal perforation, and a February 2016 primary care note establishes care including nasal septum perforation. As a result of the examination, the VA examiner opined that the Veteran's nasal condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury. He explained that he was unable to find contemporaneous medical records discussing nasal/sinus conditions while on active duty, and his separation exam shows no complaints or past history of these conditions; therefore, the Veteran's nasal condition is less likely than not incurred in and/or caused by the exposure to dry climate in Iraq for 6 months, 25 days during service, and that the records show the nasal condition afterwards. See April 2018 VA examination report. The April 2018 VA medical opinion is inadequate as it fails to reflect consideration of the Veteran's lay statements concerning the onset and continuity of his nasal problems, and it relies in large part on the absence of in-service nasal problems at the time of the Veteran's separation. Moreover, the Veteran has explained that, although he experienced symptoms during service, he did not seek care for such problems during his deployment. The record includes statements provided by the Veteran's spouse in both a layperson capacity as well as in her capacity as a medical professional. In her May 2018 statement, she noted that the Veteran did not have any nose symptoms or noisy breathing when she met him, but in approximately 2009 or 2010 she began to notice that his nose would make a loud whistling sound when he would breathe through his nose. She stated that the Veteran also began to complain of discomfort in his nose around that time and described needing to clear his nasal septum of a large scab in order for the discomfort to improve. She further stated that the Veteran was told during an ENT consult that he had a hose in his nasal septum but that there was no treatment, so he has continued with his symptoms. In her March 2021 statement, the Veteran's spouse stated that the Veteran developed a whistling sound in his nose between 2007 and 2010. She noted the Veteran's service in the Marine Corps from 2006 to 2010, including one deployment to Iraq, and she stated that at some point after his deployment to Iraq, he began to have an intermittent nose whistle. She stated that he would also complain about a plug of dried mucus, which seemed to wedge itself in his nasal septum. She noted that, at some point after 2010, the Veteran saw an otolaryngologist who performed a rhinoscopy and visualized a perforation in his nasal septum. She noted that she suspects that his nasal septum perforation developed while he was deployed to Iraq and exposed to sandstorms. See May 2018 and March 2021 statements. The Board finds probative the Veteran's consistent reports of nasal symptoms originating with his in-service exposure to extreme heat, dryness, and sandstorms. The Board finds that the Veteran's report of having experienced extreme heat, extreme dryness, and sandstorms while working in the desert to be consistent with the circumstances of his duties. The Board finds no reason to call into question the Veteran's credibility as to his report of having nasal symptoms during and since service. After considering the Veteran's testimony regarding his exposure to extreme heat and dryness during service, post-service treatment records showing chronic sinusitis and nasal septum perforation, and the statements offered by his wife in both a lay and professional capacity regarding his ongoing symptoms and their origination during service, the Board finds the evidence of record to be at the very least in equipoise as to whether the Veteran's nasal disability had onset during his period of active duty service. (Continued on Next Page) Resolving all doubt in the Veteran's favor, entitlement to service connection for a nasal disability, to include septal perforation and sinusitis, is granted. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Fulmer, 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.