Citation Nr: 21031960 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 09-21 232 DATE: May 25, 2021 ORDER Entitlement to an initial compensable rating for nasal fracture is denied. Entitlement to service connection for a bilateral eye disorder is denied. Entitlement to service connection for a bladder/urinary disorder is denied. FINDINGS OF FACT 1. For the entire period on appeal, the preponderance of the evidence of record is against a finding that the Veteran's nasal fracture was manifested by 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 2. The preponderance of the evidence of record is against a finding that the Veteran's bilateral eye disorder began during service, is otherwise the result of an in-service injury or event, or is caused or aggravated by any service-connected disability. 3. The preponderance of the evidence of record is against a finding that the Veteran's bladder/urinary disorder began during service, is otherwise the result of an in-service injury or event, or is caused or aggravated by any service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating for nasal fracture have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.88, Diagnostic Code 6502. 2. The criteria for service connection for bilateral eye disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for bladder/urinary disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2006 to November 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2009 and February 2014, the Veteran testified at hearings before a Veterans Law Judge. A copy of the transcript is associated with the evidentiary record. The Veterans Law Judge before whom the Veteran testified in February 2014 is no longer with the Board. In May 2017, the Veteran declined an additional Board hearing. These matters were previously remanded in August 2013, May 2014, June 2016, January 2018, and March 2019 Board decisions. A remand by the Board imposes a concomitant duty to ensure compliance with the terms of the remand. Where the remand orders are not complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Upon review, the Board finds that the remand directives have been complied with. Increased Rating General Rating Principles Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board will consider not only the criteria of the currently assigned diagnostic code, but also the criteria of other potentially applicable diagnostic codes. Rating Principles; Nasal Fracture The Veteran is currently rated with a noncompensable rating under diagnostic code 6502 for a nasal fracture. Under diagnostic code 6502 a rating of 10 percent is warranted for traumatic deviation of the nasal septum with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 10 percent is the highest rating under diagnostic code 6502. Analysis 1. Entitlement to an initial compensable rating for nasal fracture. The Veteran's residuals of nasal fracture were originally service connected with a noncompensable rating, effective November 2007. In an April 2013 statement in support of claim, the Veteran asserted that as a result of her nasal fracture she has difficulty smelling chemicals. During her February 2014 hearing the Veteran and her representative argued that she is entitled to a compensable rating for her residuals of nasal fracture based on diagnosed granulomatosis rhinitis, bilateral nasal passages obstructed greater than 50 percent, allergic rhinitis, a history of sinus pain and mucous nasal discharge, difficulty with sense of smell and pain on the nasal bridge when wearing glasses. Notwithstanding the Veteran's contentions, the preponderance of the probative evidence of record does not establish entitlement to a compensable rating for residuals of nasal fracture. An August 2012 VA examination notes that the Veteran has either allergic, vasomotor, bacterial, or granulomatous rhinitis, with greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. The Veteran did not have complete obstruction on one side due to rhinitis and did not have permanent hypertrophy of the nasal turbinates. Similarly, the Veteran did not have nasal polyps or any granulomatous conditions. The examiner also noted no larynx and pharynx conditions, no traumatic deviated nasal septum, no nasal tumors, or neoplasms. The examiner noted that the Veteran reported nightly intermittent flow by oxygen; the Veteran did not provide any history and the examiner concluded that the supplemental nocturnal oxygen and the Veteran's reported multitude of anxiolytic medicines are less than 50 percent likely related to the Veteran's past nasal fracture. The examiner further concluded that the Veteran's obstruction is due to allergic rhinitis which is not related directly or indirectly to the Veteran's nasal fracture which healed without deformity. A June 2015 VA examination for sinusitis noted a diagnosis of contusion of the face in May 2007, but no nose, throat, larynx, or pharynx conditions. The examiner noted that January 2012 imaging showed a normal CT of the temporal bone without findings for cholesteatoma; the examiner also noted that a May 2007 nasal bone series was normal. An October 2016 VA medical opinion opined that the Veteran does not have nasal deviation or other obstruction of her nasal passages. An August 2018 VA medical opinion opined that the Veteran's rhinitis is not related to her nasal fracture, noting that rhinitis is defined as inflammation of the nasal mucosa, typically caused by viral infections or allergic reactions. Notably the examiner also indicated that a baseline level of severity could not be determined for the Veteran's rhinitis and, regardless of baseline, the Veteran's rhinitis was not aggravated beyond natural progression by a service-connected condition. Ultimately, the preponderance of the probative evidence of record does not establish entitlement to a compensable rating for nasal fracture. A compensable rating under diagnostic code 6502 requires evidence of a traumatic deviated septum with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. While the Veteran is competent to report lay symptoms of difficulty with smell and nasal pain, the Veteran does not have the medical expertise necessary to assert that these symptoms are a direct result of her nasal fracture. The probative evidence of record establishes that while the Veteran has some rhinitis and associated symptoms, the Veteran's rhinitis is not related to her nasal fracture in service. Finally, the Board notes that while the Veteran's representative has argued that the Veteran has granulomatosis, all of the Veteran's VA examinations note that the Veteran does not have any granulomatous conditions. Entitlement to an initial compensable rating for residuals of nasal fracture is denied. Service Connection Legal Criteria Generally, to establish a right to compensation for a present disability a veteran must show: (1) a present disability; (2) an 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). 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). Service connection is also provided for a disability which is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 2. Entitlement to service connection for a bilateral eye disorder. The Veteran contends that she is entitled to service connection for a bilateral eye disorder. The preponderance of the probative evidence of record does not establish a nexus between the Veteran's in-service injury and current eye disabilities. It also does not establish that any service-connected disability caused or aggravated the Veteran's eye disorders. The Veteran's July 2004 enlistment exam notes normal eyes. However, January 2007 service treatment records note complaint of swollen eyelids and the Veteran was diagnosed with conjunctivitis. May 2007 service treatment records note the Veteran' s complaints of left eye irritation, however subsequent June 2007 treatment records no eye abnormalities and no discharge from conjunctiva, the Veteran's eye drops were noted to be last filled in January 2007. Post service the Veteran was afforded a VA examination in May 2008. The examiner noted that initially the Veteran denied any eye complaints but subsequently described eye twitching and problems with her left eye, which she believed were secondary to a pipe falling on her nose. Upon examination the Veteran's eye was normal. An October 2016 VA examination notes the Veteran's history of pinguecula diagnosed in December 2014. The examiner also noted a history of bilateral keratoconus diagnosed in 2013 and again in 2015. The examiner opined that it is less likely than not that the Veteran's keratoconus had its clinical onset in service or is otherwise related to the Veteran's conjunctivitis in service. The examiner further opined that it is less likely as not that the Veteran's keratoconus is related to the in-service injury sustained when the Veteran was hit in the face with a metal bar or that the Veteran's keratoconus is otherwise the result of a disease or injury in service. As supporting rationale, the examiner asserted that keratoconus is not caused by conjunctivitis or eye trauma and no other eye disease or injurie were found in the Veteran's record which could be related to causing keratoconus. An August 2018 VA medical opinion noted that the Veteran was diagnosed with pinguecula at a VA eye exam in 2011 and again in 2014; three subsequent eye examinations did not note a diagnosis of pinguecula. The examiner noted that there was no evidence to support an in-service cause of pinguecula. Further, the examiner noted that conjunctivitis is normally caused by a bacterium or a virus and is self-limiting, meaning that with time and treatment the inflammation of the conjunctiva resolves. The examiner noted that pinguecula are not caused by conjunctivitis, thus the Veteran' diagnosis of conjunctivitis in 2007 would not have caused pinguecula. Further, the examiner concluded that pinguecula would not be caused by being hit in the face with a metal bar as the service treatment records do not indicate that the Veteran sustained any injury to the eye itself or the location of where pinguecula normally forms. The Board notes that the examiner also noted disabilities of myopia presbyopia and astigmatism, however these are considered congenital or developmental conditions which are not a disease or injury and therefore not entitled to service connection. 38 C.F.R. § 3.303(c). Ultimately, while the evidence of record including medical treatment records and VA examinations note that the Veteran has current eye disabilities and an in service injury of conjunctiva and nasal fracture, the evidence does not establish a nexus, or causal relationship between the Veteran's current eye disabilities and her service or any events of service, to include an in-service conjunctiva, nasal fracture, or any claimed sun exposure. Additionally, the evidence of record does not show that the Veteran's service-connected disability either caused or aggravated the Veteran's current eye disabilities. The August 2018 VA examiner's opinion is highly probative evidence against the claim as it is based on a review of the record and supported by an adequate rationale. The Board has considered the Veteran's lay statements and notes that she is competent to report lay symptoms of eye pain, swelling and blurred vision however, the Veteran lacks the medical expertise to determine that these symptoms are a result of her in service injuries or events and/or service-connected disabilities. Also, there are no medical opinions of record which establish a nexus between the Veteran's in-service injuries and her current eye disabilities or between her service-connected nasal disability and her current eye disabilities. Entitlement to service connection for bilateral eye condition is denied. 3. Entitlement to service connection for a bladder/urinary disorder. The Veteran contends that she is entitled to service connection for a bladder condition. However, notwithstanding the Veteran's contentions, the preponderance of the evidence does not establish entitlement to service connection for a bladder/urinary disorder. Notably, the record shows that the Veteran reported pelvic pain in service in October 2006, however subsequent service treatment records note no genitourinary symptoms. Post service, during a May 2008 VA examination, the Veteran reported a history of urinary frequency and adhesions of her bladder but also reported that her urinary frequency improved after her hysterectomy. The examiner concluded that for the claimed bladder condition the Veteran had a history of urinary tract infections but no history of recurrent urinary tract infection. The examiner further noted that if the Veteran did have trouble with adhesion of her bladder to the uterus, the hysterectomy took care of that. A January 2009 VA examination also notes the Veteran's subjective complaints of urinary frequency. The examiner diagnosed the Veteran as status post hysterectomy with history of hysteroscopy. Notably, a rating decision service connected the Veteran for hysterectomy, effective November 2007. A September 2010 VA examination notes a history of urinary tract infection, but the Veteran denied any hematuria, dysuria, or incontinence. Upon examination the physician noted that a retroperitoneal ultrasound showed normal appearance of the kidneys and a cytoscopy was normal except for mild cystitis; the rest of the bladder was within normal limits and urine cultures were all negative. The examiner noted that for the claimed bladder disorder and residuals of kidney infection, the Veteran, has had full workups by urology for bladder and kidney problems; she had multiple urinalyses and cultures, which were basically negative for any kidney or bladder infection. Therefore, the examiner concluded, there is no chronic disorder of a bladder. February 2012 VA examination notes a diagnosis of cystitis. An April 2015 VA examination notes no history of urinary tract disability. A June 2015 VA examination noted that the Veteran has a history of urinary incontinence and leakage likely related to parity status post seven pregnancies and six deliveries. A November 2016 VA examination opined that the Veteran's only bladder/urinary disability of urinary incontinence less likely than not had its onset in service or is related to the Veteran's urinary symptoms in service or is otherwise the result of a disease or injury in service. In July 2018 the Veteran reported having bladder pain and was given Tylenol. In a February 2020 VA examination the examiner noted no diagnosis of a bladder condition. The examiner noted that since the last VA examination the Veteran had been seen many times for the same series of physical and mental health conditions but still does not have a diagnosis of a urinary tract disorder. Based on the evidence of record, the Board finds that while the evidence shows that the Veteran has had a urinary disorder during the period on appeal, the disorder is not related to the Veteran's military service and not caused or aggravated by any service-connected disability. Instead the Veteran's urinary and bladder symptoms have been noted to be related to the Veteran's parity (status post 7 pregnancies, 6 deliveries). There is no evidence of record which relates the Veteran's disabilities to her military service. Moreover, the examiner found that the Veteran's claimed incontinence/leakage was not in any way caused or aggravated by the hysterectomy or any medication taken for the disability. The record also does not establish that it is in any way caused or aggravated by the Veteran's irritable bowel syndrome or any medication taken for the disability. The Board has considered the Veteran's lay statements and notes that she is competent to report lay symptoms experienced; however the Veteran lacks the medical expertise to determine that these symptoms are a result of her in service injuries or events, or caused or aggravated by any service-connected disabilities. Based on the evidence of record, entitlement to service connection for bladder/urinary disability is denied. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Wimbish, 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.