Citation Nr: 22016354 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 17-11 995 DATE: March 22, 2022 ORDER Entitlement to service connection for residuals of a deviated septum is granted. REMANDED Entitlement to service connection for a disability manifested by right hand pain is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include general anxiety disorder, unspecified anxiety disorder, major depressive disorder, and posttraumatic stress disorder (PTSD), is remanded. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, his current residuals of a deviated septum are attributable to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of a deviated septum have been met. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.159, 3.102, 4.121, 4124. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1999 to February 2009. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran then testified at a hearing before a Veterans Law Judge (VLJ) in December 2019, and this matter was subsequently remanded for further development in April 2020. A transcript of the hearing is in the record. However, the VLJ who held that hearing is no longer with the Board. Consequently, in a November 2021 letter, the Board offered the Veteran an opportunity to testify at an additional, optional hearing before a VLJ who would ultimately decide his case. The Veteran did not respond to that letter, and it was not returned as undeliverable; therefore, the Board will proceed with adjudication of the case. Of note, following the Board's April 2020 remand, in a September 2021 rating decision, the RO granted the Veteran's service connection claim for insomnia (claimed as sleeping disorder). As such, this issue has been resolved and is no longer on appeal before the Board. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date). Service Connection In order to establish service connection for the 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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 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. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 C.F.R. §§ 3.309. A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during that service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). To rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. 38 C.F.R. § 3.304(b); VAOPGCPREC 3-03, 69 Fed. Reg. 25,178 (2004); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). If both of these requirements are not met, the presumption of soundness is not rebutted, and the case becomes one of direct service connection. Clear and unmistakable evidence is a more formidable evidentiary burden than whether the most persuasive evidence is against the claim. Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an onerous evidentiary standard, requiring that the no-aggravation result be undebatable. Cotant, 17 Vet. App. at 131. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306 (b). See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (which holds that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat Veteran to establish an increase in disability). Except as provided in 38 C.F.R. § 3.300 (c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. This includes any increase in disability not due to normal progression (aggravation). Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is evidence provided by a person who is qualified through specialized education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). Competent lay evidence is any kind of 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 facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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). 1. Entitlement to service connection for residuals of a deviated septum is granted. The Veteran contends that he had a preexisting deviated septum disability prior to service that was aggravated by his active-duty service. See, December 2019 Board Hearing Transcript. As to a current diagnosis, the record reflects that the Veteran's acquired deviated nasal septum (DNS) was initially diagnosed in 2008, and confirmed as current during his VA examinations, in 2013, and most recently, in August 2021. Hence, the first element of service connection is established. With regards to the Veteran's claim based on aggravation, the record reflects that the Veteran's DNS was not noted during his military entrance examination on August 20, 1999. Without documentation of a defect on the entrance examination, the Veteran is presumed to have been in sound condition when accepted into service. There is a two-prong test for whether the presumption of soundness is rebutted. First, whether there is clear and unmistakable evidence that shows the disability preexisted service. If there is not, then the presumption of soundness is not rebutted, and the analysis ends. If there is evidence that clearly shows preexistence, then, whether there is clear and unmistakable evidence that shows the preexisting disability did not undergo a permanent worsening beyond the normal progression of the disability during active service. If there is not, then the presumption of soundness is not rebutted. Because the Veteran's DNS was not clinically noted upon entry, the Board finds that the presumption of soundness is attached, and as such, VA must show clear and unmistakable evidence of both a preexisting disability and a lack of in-service aggravation to overcome the presumption of soundness. The service treatment records regarding his treatment for a deviated nasal septum reflects a report that the Veteran developed a deviated septum while playing soccer in high school, prior to his entrance into the military. Furthermore, the Veteran testified that he had a deviated nasal septum before entering service. Accordingly, as was noted in the Board's prior remand, the Board finds that Veteran's deviated nasal septum clearly and unmistakably pre-existed service upon entrance in August 1999. Nevertheless, VA still bears the burden of establishing by clear and unmistakable evidence that the deviated septum was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir 2004). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38U.S.C. §1153; 38 C.F.R. § 3.306(a). During the Veteran's initial in VA examination for his claim in December 2015, the Veteran reported that he had rhinoplasty at the Naval airbase hospital in Jacksonville in 2008 which was performed secondary to previous nasal deviation. He further stated that since then he has frequent "difficulty breathing through his left nostril" (his right side is clear), which was not the case prior to the surgery. Further, that he constantly clears his nose, either by blowing his nose or using a Q-tip. The December 2015 VA examiner cited the following references from the Veteran's STR: Apr 04, 2008: ENT consult: "Also c/o nasal congestion, s/p severe nasal trauma as a youth c/soccer." Exam: "significant nasal septum deviation, chronic congestion no clear collapse of the nares; the mandible is mildly hypotrophic." A/P: deviated nasal septum (acquired), acquired deformity of nose. Aug 28, 2008: operation report: rhinoplasty, septoplasty, turbinate reduction. However, this examiner concluded that there is a negative nexus, and as his rationale, stated that "[T]here is no evidence that this condition was incurred in service or was permanently aggravated while in active service." Because this examiner did not specifically address the Veteran's assertions of aggravation, rather, just made a conclusory statement, the Board remanded this issue in April 2020 for the VA examiner to address the Veteran's statements with regards to his in-service symptoms prior to and post-surgery. The Veteran also testified to experiencing more severe symptoms in service during his December 2019 Board Hearing, also stating that his snoring also got worse due to his deviated septum. During the Veteran's subsequent VA conducted examination in August 2021, the VA examiner opined that the Veteran's DNS which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness, stating the following as his rationale: [A]s per Available STR, Chronological STR 01/07/2009 - veteran is Doing fine and Sleeping better occasional Crusting noted. Chronological STR 01/05/2009- Separation Exam is normal. There is no problem noted with the DNS or breathing problem. There is no DD 214 available to confirm the problem with the DNS. The Board finds this VA examiner's basis for a lack of aggravation also conclusory and unpersuasive because the examiner failed to provide a clear and thorough explanation to support his conclusion, particularly with regard to the severity of the Veteran's in-service symptoms, which led to the need for his surgery for rhinoplasty, septoplasty, turbinate reduction while in service August 2008. First, the record reflects that as of February 2008, the Veteran was actively using nasal spray in each nostril on a regular basis. Also, surgery was recommended during a consult for daytime sleepiness in April 2008; it was noted that the Veteran snores significantly and experiences insomnia, which was complicated by his shift and schedule changes, resulting in him having difficulty initiating and maintaining sleep. More importantly, although the Veteran's DNS was asymptomatic at the time of his military entrance, (given that it was not noted at entry), one week before his surgery on August 28, 2008, it was that noted that the Veteran complained of severe nasal congestion and that his nose is tilted to the left and manifest nasal mucosa. Yet, none of these symptoms and treatment prior to his surgery were addressed by the August 2021 VA examiner, which could have established a baseline for aggravation for comparative purposes. Consequently, the Board finds that the VA has not rebutted the presumption of soundness and as such this case is subject to a direct service connection claim analysis. Due to the VA's inability to overcome the Veteran's presumption of soundness, in-service occurrence is established. With regards to the final element of nexus, relating the Veteran's DNS disability to his military service, the Veteran testified during his December 2019 Board hearing that his preexisting DNS got worse during service, resulting in the functioning of only one nostril, and that his symptoms have continued to date. The Board finds the Veteran's consistent sworn statements about his symptoms during service and the continuity of his symptoms competent and credible and has therefore assigned it high probative value. Further, there is no direct evidence to the contrary. Therefore, after a review of all the competent and probative evidence, the Board finds that presumption of soundness has not been rebutted. If the presumption of soundness is not rebutted, the disease or injury that manifested in service is deemed incurred in service, and service connection is warranted if there is evidence of a current disability related to this disease or injury in service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012). Consequently, the Board finds that when resolving reasonable doubt in favor of the Veteran, the evidence is at least in equipoise whether his respiratory problems, diagnosed as residuals of a deviated nasal septum, are related to his service, and as such, service connection for this disability is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a disability manifested by right hand pain is remanded. The Board notes that during his post remand VA Hand and Fingers Disability Benefits Questionnaire examination in August 2021, the examiner opined that the Veteran does not have a current diagnosis related to his claim of right-hand pain. Notwithstanding this finding, the Veteran has always maintained that since he broke his right hand in service in 2002, he continues to experience residual symptoms of pain and discomfort on his right hand and regularly takes Tylenol or Advil to help alleviate his symptoms. Consequently, in light of the ruling in Saunders, the Board finds that another remand is necessary for further evidentiary development of the Veteran's appeal. The United States Court of Appeals (Court) has held that pain in the absence of a presently diagnosed condition can cause functional impairment, which may qualify as a disability for VA purpose. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). 2. Entitlement to service connection for an acquired psychiatric disorder, to include a general anxiety disorder, unspecified anxiety disorder, major depressive disorder, and PTSD, is remanded. The Veteran asserts he has an acquired psychiatric disorder that resulted from his active-duty service, specifically PTSD. During his Board hearing in December 2019, he reported witnessing injuries and deaths of other service members while aboard a nine-month deployment aboard an aircraft carrier, either the USS George Washington or the USS Harry Truman. He also recalled that the incidents happened in 2005 or 2006; his wife also testified it might be as late as 2007 to 2008. Since these stressors identified by the Veteran are non-combat stressors, there must be documentation or information to corroborate the stressors for service connection based upon PTSD. 38 C.F.R. § 3.304(f). However, to date, despite two separate notices to the Veteran to submit additional specific details necessary to verify these stressors, the Veteran has not done so, and consequently he has not been afforded a VA mental orders examination, which was supposed to have been done following this development. Notwithstanding this fact, as the Veteran has also been diagnosed with general anxiety disorder, unspecified anxiety disorder, major depressive disorder and the etiology of these other diagnosed mental disorders also need to be evaluated prior to adjudication of his claim on the merits, the Board finds that this matter should be remanded for a VA examination. The matters are REMANDED for the following action: 1. The Agency of Jurisdiction (AOJ) should contact the appropriate agency to obtain logbooks and records for the ships on which the Veteran served. These include Ship deck logs for the USS Washington for the period from 2005 and 2006, and 2007 to 2008; and for the USS Truman, also for the period from 2005 and 2006, and 2007 to 2008. 2. Regardless of whether the Veteran's stressors are verified through the action requested above, schedule the Veteran for an appropriate examination by a VA psychiatrist or VA psychologist to determine the nature and etiology of any acquired psychiatric disabilities under the Diagnostic and Statistical Manual of Mental Disorders (DSM5) criteria. The complete electronic file, including a copy of this REMAND, should be provided to the examiner prior to conducting the examination, and the examiner should indicate that the Veteran's records have been reviewed. a) The examiner is asked to determine whether the Veteran has a current diagnosis of PTSD in accordance with the DSM-V. b) The examiner is asked to confirm any other diagnoses of psychiatric disability other than PTSD, to include general anxiety disorder, unspecified anxiety disorder and major depressive, also in accordance with the DSM-V. c) If the examiner determines that PTSD is present, then state whether it is at least as likely as not (a 50 percent or greater probability) based upon the Veteran's identified in-service stressor(s). d) For the Veteran's acquired psychiatric disability other than PTSD, including general anxiety disorder, unspecified anxiety disorder and major depressive disorder, state whether it is at least as likely as not (a 50 percent or greater probability) that any of these acquired psychiatric disability had their onset in service, are related to the Veteran's reported in-service stressors, or are otherwise related to service. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. A complete rationale for all medical opinions is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. The AOJ should obtain an addendum opinion from the VA examiner that performed the August 2021 Hand and Fingers Disability Benefits Questionnaire examination to determine the nature and etiology of the Veteran's claimed right-hand disability. The record and a copy of this Remand must be made available and reviewed by the examiner. If that examiner is not available, such can be obtained from another appropriately qualified VA examiner. The need for another examination of the Veteran is left to the discretion of the examiner. After a review of the record, the examiner should provide responses to the following: State whether the Veteran's reported symptoms of pain and discomfort on his right-hand results in functional impairment that impacts the Veteran's earning capacity. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's symptoms of pain and discomfort on his right hand is at least as likely as not (50 percent probability or greater) related to the Veteran's active military service. The examiner is advised that the Veteran is considered competent to be able to report injuries and symptoms, and that his reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. 4. The AOJ should ensure compliance of the foregoing and any other necessary development, and then readjudicate the Veteran's disability claims. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. B. King, 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.