Citation Nr: 22008043 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 18-42 922 DATE: February 11, 2022 ORDER Entitlement to service connection for deviated septum, secondary to a nasal fracture disability, is denied. Entitlement to service connection for obstructive sleep apnea, secondary to deviated septum, is denied. Entitlement to service connection for hypertension, secondary to obstructive sleep apnea (OSA), is denied. FINDINGS OF FACT 1. Deviated septum is not shown to be due to, etiologically related to, or aggravated by any event, injury, or disease incurred in service, or a service-connected disability. 2. OSA is not shown to be due to, etiologically related to, or aggravated by any event, injury, or disease incurred in service, or a service-connected disability. 3. Hypertension is not shown to be due to, etiologically related to, or aggravated by any event, injury, or disease incurred in service, or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for deviated septum, including as secondary to a nasal fracture disability, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310. 2. The criteria for entitlement to service connection for OSA, including as secondary to deviated septum, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310. 3. The criteria for entitlement to service connection for hypertension, including as secondary to obstructive sleep apnea, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1987 to February 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2018 and an October 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. Service Connection Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the current disability and the claimed event, injury, or disease in service. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in-service. The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). Secondary service connection may be established for a disability that is proximately due to, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while weight and credibility are factual determinations going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the entirety evidence of record. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). 1. Entitlement to service connection for deviated septum, to include as secondary to a nasal fracture disability. The Veteran contends that a deviated septum was caused by a right nasal fracture during service. The Board notes that the Veteran is seeking entitlement to service connection on a direct or secondary basis, by asserting that a current deviated septum was caused or aggravated by a right nasal fracture or was incurred during a nasal injury in service. However, the Veteran is not currently service connected for any nasal disability, including right nasal fracture. Accordingly, secondary service connection for a deviated septum is not warranted at this time. Regarding direct service connection, the Board finds that the Veteran has been diagnosed with a deviated septum, and that he experienced a nasal injury in service. However, the Board finds that the preponderance of the evidence is against finding that a deviated septum was incurred in or related to service, or due to or aggravated by the service-connected disabilities. In the Veteran's report of medical history, executed at the time of enlistment, the Veteran denied any ear, nose or throat trouble, and clinical evaluation of the nose was normal. In the Veteran's report of medical history, executed at the time of separation, the Veteran noted ear, nose, and throat trouble, but showed the clinical evaluation of the nose as normal and reported himself in good health. The service medical records show no indication of a deviated septum or nasal fracture on the enlistment examination. A September 1990 emergency treatment record notes that the Veteran was injured while playing football when his nose collided with another player's head. The nose had swelling and a laceration. Nasal series x-rays were completed revealing no fracture. The report stated: "Within normal limits" and "Normal relationships and no definitive fracture on frontal and lateral filming." The Veteran was referred to an ENT consult. A next-day follow-up visit reported the Veteran had a cut and swelling of the nose. In October 1990 the Veteran was seen by an ENT. The examiner noted "septum straight" and did not report a fractured nose. There was no further treatment for a deviated nasal or fractured nasal injury. The service separation examination was normal and did not note a deviated septum or any nasal fracture. Throughout 2016, the medical records note nasal congestion. In February 2016, the Veteran had nasal mucosa and turbinates that were swollen and erythematous. In October 2017, the Veteran was diagnosed with a deviated septum by CT scan. At a November 2017 VA examination, the examiner conducted an in-person examination and reviewed the file and opined that the claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed inservice injury, event, or illness. The examiner stated a review of the medical records showed that the Veteran underwent a nasal series for evaluation after trauma while he was in service, and that subsequent examinations has shown deviation of the nasal septum. The examiner noted that the abnormality was not noted on the initial enlistment examination. Although, the examiner completed an in-person exam and noted review of the claims file before providing a positive nexus opinion, the examiner did not mention or discuss the significance of the nasal series results during service indicating there was no fracture or deviated septum. In addition, the examiner did not discuss the significance of the service separation examination showing no report of a deviated septum or nasal fracture. Instead, the examiner highlighted that subsequent examinations showed septum deviation. For those reasons, the Board finds the November 2017 VA examination to be inadequate as the examiner did not consider the complete relevant medical record. At a March 2018 VA examination, the examiner conducted a file review before opining that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed injury in service. The examiner explained that the Veteran incurred a nasal contusion in 1990. However, at that time, X-rays were negative for any fracture or septal deviation. The Veteran has consistently stated that he incurred a nasal fracture in service. However, the X-ray results and ENT opinion in service found no fracture or deviated septum and cannot be ignored. In addition, medical records indicate the Veteran was not diagnosed with a deviated septum until 2017, approximately 25 years following separation service. The Veteran's has provided lay statements of a link between service and diagnosed deviated septum. The Board acknowledges the Veteran's assertions that a deviated septum is the result of the in-service nasal injury. However, the Board finds that medical reports indicate no nasal fracture or deviated septum. The Veteran, as a lay person without the appropriate medical training and expertise in diagnosing and treating septal or nasal disabilities, is not competent to provide a probative opinion as to whether deviate septum was either caused by or aggravated beyond the natural progression by any incident of active service, or by any service-connected disability. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Veteran has not been shown to possess the adequate medical knowledge, education, or training, to competently opine as to the diagnosis or etiology of any nasal disability. While the Veteran is competent to describe symptoms such as pain, swelling, and bleeding, he is not competent to provide a diagnosis of a specific disability, or to opine as to the etiology of any disability as those issues fall outside the realm of common knowledge of laypersons. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). That determination must be provided by a medical professional with the proper training, education, and experience in the appropriate fields. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While the Veteran has opined as to a direct cause and effect relationship, the deviated septum was first detected many years following service, and was specifically found not to be present during service following the injury. The Board finds the March 2018 VA opinion to be the most persuasive because of the training and examination by the examiner, and the review of the medical history. It is to be noted that the Board is not free to substitute its own judgment for a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board finds the November 2017 to hold less probative value. Although, the examiner reviewed the case file and had an in-person examination, the did not discuss the significance of the in-service x-ray results, showing that the Veteran did not sustain a nasal fracture or deviated septum. The Board finds the VA examiner's opinion to be inadequate as it relied on incomplete information, and thus, less probative than the March 2018 VA exam. The Board finds the March 2018 VA examiner opinion to be competent, credible, and persuasive. The VA examiner opined that it was less likely than not that the claimed deviated was related to an incident of service or the service-connected disabilities. The Board finds the VA examiner's opinion to be more probative than the lay statements of record and the November 2017 opinion. The opinion of the VA examiner is highly probative because it is supported by detailed rationale and provided by a trained medical professional. The VA examiner specifically noted review of the Veteran's file before rendering the opinion. Accordingly, the VA examiner opinion is found to carry significant weight and to be the most persuasive evidence of record. Among the factors for assessing the probative value of a medical opinion are the examiner's access to the claims file and the rational provided. Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). The probative value of medical evidence is based on the examiner's knowledge and skill in analyzing the data, and the medical conclusion they reach; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). To the extent that the lay statements could be found to be competent and credible, the Board finds that they are outweighed by the March 2018 VA examination opinion because of the examiner's medical training. Accordingly, after a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim and against a finding that the Veteran's deviated septum was incurred in or is related to the Veteran's honorable active service, or is due to or aggravated by the service-connected disabilities as the most persuasive evidence of record does not support that contention. The Board finds that the evidence is not in relative equipoise. Therefore, the claim must be denied. 2. Entitlement to service connection for obstructive sleep apnea, to include as secondary to deviated septum. The Veteran contends that OSA is caused by a deviated septum or was incurred in service. The Board notes that the Veteran is seeking entitlement to service connection on a secondary basis, by asserting that current OSA was caused or aggravated by a deviated septum. However, the Veteran is not currently service connected for any nasal disability, including a deviated septum. Accordingly, secondary service connection for a OSA is not warranted at this time. Regarding direct service connection, the Board finds that the Veteran has been diagnosed with OSA. However, the Board finds that the preponderance of the evidence is against finding that the OSA was incurred in or related to service, or due to or aggravated by the service-connected disabilities. In the Veteran's report of medical history, executed at the time of enlistment, the Veteran denied frequent trouble sleeping. In the Veteran's report of medical history, executed at the time of separation, the Veteran denied frequent trouble sleeping, and reported himself in good health. The service medical records contain no complaints of, treatment for, or diagnosis of any sleep disorder, to include OSA while in service. The first medical note regarding sleep difficulties is from July 2014, almost 22 years after separation from service. In September 2014, the Veteran underwent a sleep study and was diagnosed with obstructive sleep apnea. In a November 2014 lay statement submitted by the Veteran's spouse describing his allergies and asthma, she stated the Veteran "breathes like a horse at night" because he cannot breathe out of his nose. Further, she explained that she worried he was not breathing, so she put her hand under his nose to make sure he was breathing. Sometimes when the Veteran choked in his sleep, she brought him an inhaler and water to open the airway. Although the Veteran contends that service connection for OSA is warranted, the only evidence that provides a link between the Veteran's service and diagnosed OSA comes from the Veteran. The Board acknowledges the Veteran's assertions that OSA is the result of service, or due to or aggravated by a service-connected disability. However, the Board finds that service medical reports do not indicate OSA. The Board considers the nature and etiology of OSA to be a medical question that requires expertise beyond a lay person's general observation. Kahana v. Shinseki, 24 Vet. App. 248 (2011). To the extent the Veteran believes that OSA is due to service, as a lay person, he has not shown to possess any specialized training in the medical field. Thus, the Veteran's opinion as to the nature and etiology of the OSA falls outside the scope of his competency as lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a)(1). Therefore, the Veteran's assertions in this regard are of no probative value. The Veteran has not been provided a VA examination as to the claim for OSA, however, based on the evidence the Board finds an examination is not warranted. The VA must provide a medical examination when there is evidence of: (1) a current disability; (2) an in-service event, injury, or disease; (3) some indication that the claimed disability may be associated with the established event, injury, or disease; and (4) insufficient competent evidence of record for VA to make a decision. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires evidence that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon v. Nicholson, 20 Vet. App. 83 (2006). The evidence of record does not show an event in service related to OSA as the injury in service was to the nose, not the airway involved in sleep apnea. Accordingly, after a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim and against a finding that the Veteran's OSA was incurred in or is related to the Veteran's honorable active service, or is due to or aggravated by the service-connected disabilities as the most persuasive evidence of record does not support that contention. The Board finds that the evidence is not in relative equipoise. Therefore, the claim must be denied. 2. Entitlement to service connection for hypertension, to include as secondary to obstructive sleep apnea. The Veteran contends that hypertension is caused by OSA, or is related to service. The Board notes that the Veteran is seeking entitlement to service connection on a secondary basis, by asserting that current hypertension was caused or aggravated by OSA. However, the Veteran is not currently service-connected for OSA. Accordingly, secondary service connection for a hypertension is not warranted at this time. Regarding direct service connection, the Board finds that the Veteran has been diagnosed with hypertension. However, the Board finds that the preponderance of the evidence is against finding that the hypertension was incurred in or related to service, or due to or aggravated by the service-connected disabilities. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. The term hypertension means that the diastolic blood pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 or greater with a diastolic blood pressure of less than 90. 38 C.F.R. § 4.104, Code 7101. In the Veteran's report of medical history, executed at the time of enlistment, the Veteran denied any high or low blood pressure, and showed the clinical evaluation of the heart and vascular system as normal. In the Veteran's report of medical history, executed at the time of separation, the Veteran denied any high or low blood pressure. The separation examination recorded blood pressure of 130/80 and clinical evaluation of the heart and vascular system as normal. The Veteran reported himself in good health. The service medical records contain no complaints of, treatment for, or diagnosis of any blood pressure issue, to include hypertension while in service. The record indicates the Veteran was diagnosed with hypertension in November 2014, approximately 22 years following service. The first medical record in the claims file showing high blood pressure was in July 2014 with a blood pressure reading of 164/100. Although the Veteran contends that service connection for hypertension is warranted, the only evidence that provides a link between the Veteran's service and diagnosed hypertension comes from the Veteran. The Board acknowledges the Veteran's assertions that hypertension is the result of service, or due to or aggravated by a service-connected disability. However, the Board finds that medical reports do not indicate hypertension. The Board considers the nature and etiology of hypertension to be a medical question that requires expertise beyond a lay person's general observation. Kahana v. Shinseki, 24 Vet. App. 248 (2011). To the extent the Veteran believes that his hypertension is due to service, as a lay person, he has not shown to possess any specialized training in the medical field. Thus, the Veteran's opinion as to the nature and etiology of the hypertension falls outside the scope of his competency as lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a)(1). Therefore, the Veteran's assertions in this regard are of no probative value. Hypertension is a chronic disease and as such is subject to presumptive service connection. The Board notes that due to the lack of medical evidence, there is no competent objective evidence to show that the Veteran's hypertension manifested to a compensable degree within one year after separation from active service. Although, service connection for a chronic disease on a presumptive basis can be established through continuity of symptomatology, the Board finds that continuity of symptomatology is not established by either lay or medical evidence. The blood pressure readings of record until 2014 show no indication of hypertension. Accordingly, presumptive service connection under 38 C.F.R. § 3.309(a) is also not applicable. Accordingly, after a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim and against a finding that the Veteran's hypertension was incurred in or is related to the Veteran's honorable active service, or is due to or aggravated by the service-connected disabilities as the most persuasive evidence of record does not support that contention. The Board finds that the evidence is not in relative equipoise. Therefore, the claim must be denied. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sonya S. Tsao, 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.