Citation Nr: 0003705 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 98-08 237A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for deflection of the nasal septum with difficulty breathing. 3. Entitlement to service connection for a left wrist disorder. REPRESENTATION Appellant represented by: John Stevens Berry, Esq. ATTORNEY FOR THE BOARD C. Trueba-Sessing, Associate Counsel INTRODUCTION The case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Lincoln, Nebraska, which denied the benefits sought on appeal. The veteran had active military service from January 1956 to September 1957. At present, after remand to the RO for additional development, the veteran's case is once again before the Board for appellate review. The Board notes that, on or about January 1998, the veteran submitted a request for a personal hearing at a local RO. As a result, such hearing was scheduled for February 5, 1998. However, although the veteran's mailed hearing notice was not returned as undeliverable, the veteran failed to appear for the hearing and there was no request by either the veteran or his representative to reschedule the hearing. As such, the veteran's request for a hearing will be considered withdrawn and the Board will proceed with its review on the present record. See 38 C.F.R. § 20.702 (1999). FINDINGS OF FACT 1. No competent evidence has been submitted that would tend to indicate that the veteran suffers from tinnitus related to his period of military service. 2. No competent evidence has been submitted that would tend to indicate that the veteran's pre-existing deflection of the nasal septum was aggravated during his military service, or is otherwise related to his period of military service. 3. No competent evidence has been submitted that would tend to indicate that the veteran suffers from a left wrist disorder related to his period of military service. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for tinnitus is not well grounded. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1999). 2. The veteran's claim of entitlement to service connection for deflection of the nasal septum with difficulty breathing is not well grounded. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1999). 3. The veteran's claim of entitlement to service connection for a left wrist disorder is not well grounded. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Applicable Law. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). A veteran who served during a period of war or during peacetime after December 31, 1946, is presumed in sound condition except for defects noted when examined and accepted for service. See 38 U.S.C.A. §§ 1111, 1137 (West 1991). Clear and unmistakable evidence that the disability existed prior to service will rebut the presumption of sound condition. See 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. § 3.304(b) (1999). Additionally, a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. See 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(a), (b) (1999). Clear and unmistakable evidence (evidence which is obvious or manifest) is required to rebut this presumption of aggravation. Id. Specifically, the United States Court of Appeals for Veterans Claims (Court) has held that intermittent or temporary flare-ups of a pre-existing injury or disease during service do not constitute aggravation. Rather, the underlying condition must have worsened. See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Moreover, 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. 38 C.F.R. § 3.303(b). The chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumption period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded on the basis of 38 C.F.R. § 3.303(b) if the condition is observed during service or during any applicable presumption period, if continuity of symptomatology is demonstrated thereafter, and if competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 498 (1997). Thus, the claimant is required to establish a nexus between the claimed disability and his/her active military service, even if a continuity of symptomatology has been established under 38 C.F.R. § 3.303(b). See Clyburn v. West, No. 97-1321 (U.S. Vet. App. April 2, 1999) (distinguishing the factual circumstances in Falzone v. Brown, 8 Vet. App. 398 (1995), and Hampton v. Gober, 10 Vet. App. 481 (1997)). The threshold question which must be answered in this case, however, is whether the veteran has presented well-grounded claims for service connection. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. The veteran has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107(a); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The veteran must satisfy three elements to well ground his claims. First, there must be competent evidence of a current disability. Second, there must be medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury. Lastly, there must be medical evidence of a nexus or relationship between the in- service injury or disease and the current disability. See Epps v. Brown, 9 Vet. App. 341 (1996). In determining whether a claim is well grounded, the truthfulness of the evidence is presumed. See Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). II. Tinnitus. With respect to the evidence of record, the veteran's service medical records are negative for any indication that the veteran was treated for or diagnosed with tinnitus. Similarly, the post-service medical evidence is negative for any indication that the veteran has been treated for or diagnosed with tinnitus. Thus, after a review of the evidence of record, the Board finds that the veteran has not submitted objective medical evidence showing that he is currently diagnosed with tinnitus. Specifically, he has failed to satisfy an essential element necessary to well ground his claim, which is the existence of a current disability of service origin. A well-grounded claim must be supported by evidence, not merely allegations. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In the absence of competent medical evidence to support the claim of service connection for tinnitus, the Board can only conclude that the veteran has not presented evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded, and the claim will be denied on that basis. See 38 U.S.C.A. § 5107(a). III. Deflection of the Nasal Septum with Difficulty Breathing. The veteran's service medical records contain the veteran's entrance examination, which shows he had a normal nose. However, the service medical records also contain notations dated October 1956 which indicate he fractured his nose prior to his service while playing basketball. At that time, he reported discomfort and had marked displacement of the nose to the left, and thus, he was accepted for a septectomy. Subsequent notations dated November 1956 reveal he actually underwent such procedure. Additionally, a March 1997 VA examination report notes that no medical records from the Balboa Hospital relating to the nose/sinuses were present during the examination, but that the veteran reported he injured his nose in 1957 while at the office. Specifically, he noted he injured his nose in 1957 when attempting to reach something placed high above his head and a box fell hitting him on the nose. As a result, he was treated for such injury at the Balboa Hospital. The veteran also noted that x-rays were performed at that time which showed fracture to the nose; his nose was reset as a result of such fracture. At the time of this examination, he complained of difficulty breathing from the left side of the nose because it was crooked. Upon examination, including x- ray examination, the veteran presented evidence of nose, nasal vestibule, and septum deviation to the left; and his diagnosis was history of fractured nose and deviated septum, with normal facial bones. After a review of the evidence of record, the Board finds that, as the record contains clear and unmistakable evidence that the veteran fractured his nose and suffered from a deviated nasal septum prior to his active service, the presumption of sound condition is not for application in this case, at least with respect to the claim of service connection for deflection of the nasal septum with difficulty breathing. See 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. § 3.304(b) (1999). In addition, the Board finds that, although the veteran underwent a septectomy in November 1956, the weight of the evidence supports the conclusion that such septectomy was corrective in nature, given the veteran's reported breathing difficulties coupled with the absence of any medical evidence showing an in-service nose fracture or aggravation of the pre-existing condition. In this regard, the Board acknowledges the veteran's statements during the May 1997 VA examination, as described above, that he fractured his nose in 1957 when attempting to reach something placed high above his head and a box fell hitting him on the nose. However, the Board finds that, although the veteran is competent to testify that he injured/hurt his nose during the service, he has not shown he is not competent to testify he fractured his nose during service, or that he aggravated his pre-service nose injury. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). While an appellant can report his symptoms, his statements as to the cause of any claimed incurrence or aggravation of disability cannot be accepted as such contention must be supported by competent medical evidence, not merely allegations. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1991). Furthermore, the Board notes that, as noted above, the present record is devoid of any medical evidence showing that he in fact fractured his nose during an in-service nose injury, or that his pre-existing deviated septum disorder/symptomatology was aggravated during his service. Moreover, even assuming the veteran aggravated his pre- service deviated septum disorder/symptomatology during his service, the Board finds that he has failed to show, via competent medical evidence, that there is a link between his current deflection of the nasal septum with difficulty breathing and any in-service symptomatology. See generally, Gonzales v. West, No. 95-1218 (U.S. Vet. App. Jan. 20, 1998) (noting that in cases of in-service aggravation, there must be competent evidence of a nexus between a current disorder and the in-service aggravation of that disorder). Specifically, the veteran has failed to satisfy an essential element necessary to well ground his claim, which is the existence of a nexus between the currently claimed disorder and his period of service. A well-grounded claim must be supported by evidence, not merely allegations. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Therefore, the Board finds the veteran has not submitted objective medical evidence showing that his pre-service deviated septum was aggravated during his period of service. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 3.303. And, in the absence of competent medical evidence to support the claim of service connection for deflection of the nasal septum with difficulty breathing, the Board can only conclude that the veteran has not presented evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded, and the claim will be denied on that basis. See 38 U.S.C.A. § 5107(a). IV. Left wrist disorder. The service medical records contain January 1957 records noting the veteran fell and outstretched his hand, suffering immediate hand wrist pain. X-rays of the wrist were taken at that time, but showed essentially negative results, with the exception of a suspicious defect in the periphery of the lunate bones. In addition, January 1957 records from the Balboa Hospital further describe the treatment the veteran received for such injury, and noted he was in a cast for a few weeks. As to the post-service medical evidence, the evidence includes a May 1997 VA examination report which notes the veteran reported he injured his left wrist playing basketball in 1957. He further noted he was sent to the Balboa Hospital in San Diego for treatment of this injury. At the time of this examination, he complained of not having much strength in the left wrist. However, upon examination, he did not present evidence of swelling, deformity, subluxation, lateral instability, nonunion, or loose motion of the left wrist. His range of motion was flexion to 90 degrees, and extension to 180 degrees. And, upon x-ray examination, he had a normal left wrist. His diagnosis was history of fracture of the left lunate. The Board acknowledges that the evidence shows the veteran sustained a wrist injury during his service. However, after a review of the evidence of record, the Board finds that the veteran has not submitted objective medical evidence showing that he is currently diagnosed with a left wrist disorder. Specifically, he has failed to satisfy an essential element necessary to well ground his claim, which is the existence of a current disability of service origin. A well-grounded claim must be supported by evidence, not merely allegations. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Therefore, in the absence of competent medical evidence to support the claim of service connection for a left wrist disorder, the Board can only conclude that the veteran has not presented evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded, and the claim will be denied on that basis. See 38 U.S.C.A. § 5107(a). V. Conclusion. In arriving at the above conclusions, the Board has taken into consideration the various written statements submitted by the veteran and his representative tending to link the claimed disorders to the veteran's period of service. While the Board acknowledges the sincerity of these statements, the Board notes that neither the veteran nor his representative has been shown to be qualified to offer a medical opinion regarding the diagnosis or etiology of the claimed disorders, or the existence of a nexus between the claimed disorders and the veteran's service. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992); see also Heuer v. Brown, 7 Vet. App. 379, 384 (1995) (citing Grottveit, supra, in which the Court held that a veteran does not meet the burden of presenting evidence of a well grounded claim where the determinative issue involves medical causation and the veteran presents only lay testimony by persons not competent to offer such medical opinions). See generally Clyburn v. West, 12 Vet. App. 296 (1999). Furthermore, as the veteran has failed to meet his initial burden of submitting evidence which would well ground his claims of service connection, VA is under no duty to assist the veteran in developing the facts pertinent to the above claims. See Epps, supra. There is nothing in the text of section 5107 to suggest that VA has a duty to assist the claimant until he or she meets his or her burden of establishing "well grounded" claims. See 38 U.S.C.A. § 5107(a) (West 1991); see also Epps, supra. The Board is not aware of any circumstances in this case which would put VA on notice that relevant evidence may exist or could be obtained, which, if true, would make the claims on appeal "plausible". See generally McKnight v. Gober, 131 F.3d 1483, 1484-5 (Fed. Cir. 1997). Lastly, the veteran may be considered for a VA examination pursuant to 38 C.F.R. § 3.326, including a VA examination for the purpose of obtaining a nexus opinion, only after his claims are determined to be well grounded, see Slater v. Brown, 9 Vet. App. 240, 244 (1996), and that is not the case here. The Board views its discussion as sufficient to inform the veteran of the elements necessary to present well grounded claims of service connection, and the reasons for which his claims have failed. See Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). ORDER Evidence of a well-grounded claim not having been submitted, service connection for tinnitus is denied. Evidence of a well-grounded claim not having been submitted, service connection for deflection of the nasal septum with difficulty breathing is denied. Evidence of a well-grounded claim not having been submitted, service connection for a left wrist disorder is denied. JOHN R. PAGANO Acting Member, Board of Veterans' Appeals