Citation Nr: 0703633 Decision Date: 02/05/07 Archive Date: 02/14/07 DOCKET NO. 03-11 712A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for nose bleeds. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Meawad, Associate Counsel INTRODUCTION The veteran served on active duty from May 1989 to June 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, that denied the above claim. In February 2004, the Board remanded the present matter for additional development and due process concerns. The case has been returned for further appellate review. FINDING OF FACT Recurrent epistaxis had its onset during active service. CONCLUSION OF LAW Recurrent epistaxis was incurred as a result of the veteran's active service. 38 U.S.C.A. §§ 1101, 1131, 1137, (West 2002); 38 C.F.R. §§ 3.303, 3.304, (2006). REASONS AND BASES FOR FINDING AND CONCLUSION The duty to notify and assist has been met to the extent necessary to grant the claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Thus, there is no prejudice to the veteran in deciding his claim at this time. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for 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. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). VA's General Counsel held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOGCPREC 3-2003; see generally Cotant v. Principi, 17 Vet. App. 116, 124 (2003) (CAVC raised the question of the proper interpretation of sections 1111 and 1153 and the validity of the pertinent part of 38 C.F.R. § 3.304(b) under that interpretation). The United States Court of Appeals for the Federal Circuit (Court) has held that 38 U.S.C.A. §§ 1110, 1131 provide compensation for disability incurred during wartime and peacetime service and a presumption of soundness upon entrance into service, except as to disorders noted at that time, under 38 U.S.C.A. §§ 1111, 1132. Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The Court held that, in the case of wartime service, "it may be overcome only 'where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.'" Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004); see VAOGCPREC 3- 2003 (July 16, 2003). Effective May 4, 2005, VA amended its regulations at 38 C.F.R. § 3.304(b) to reflect a change in the interpretation of the statute governing the presumption of sound condition. The final rule conforms to Federal Circuit precedent in Wagner and applies to claims, which were pending on or filed after May 4, 2005. As the veteran's case was pending as of that date, the amendment applies. 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. 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 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). Service connection also 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). The U.S. Court of Appeals for Veterans Claims (CAVC) has held that in order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) 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 present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). In May 1989, the veteran enlisted with the Navy. On his Report of Medical History form, he did not report any abnormalities related to nose bleeds and his physical examination likewise revealed no abnormalities. Although in the May 1989 dental health questionnaire the veteran reported that he bled easily, he did not specify that he was referring to nose bleeds. Therefore, the initial question is whether the evidence clearly and unmistakably demonstrates that veteran's nose bleeds preexisted his active service. Service medical records show that in July 1991, the veteran was treated for frequent nose bleeds. He was diagnosed as having recurrent epistaxis by history, cause unknown. The physician noted that the veteran had this disorder for two and a half years and there was no identifiable cause and no nasal passage disorder. In April 1993, the veteran was again treated for nose bleeds and stated that he had them for 3 years. Separation examination in May 1993 contained a notation of nose bleeds. Clinical evaluation of the nose and sinuses was normal. In November 2005, the veteran was afforded a VA examination. At that time, the veteran complained of having recurrent nose bleeds for approximately 15 years. He stated that his nose bleeds began during service. Following a physical examination, the veteran was diagnosed as having recurrent epistaxis that was as likely as not likely to be related to service. In March 2006, another VA examiner, Chief of the Head and Neck Surgery Section, provided an opinion after reviewing the claims file. He stated that "[i]t appear[ed] that the patient's nose bleeds occurred prior to his entrance into service" and opined that it was related to recurrence of prominent small vessels on his anterior septum due to recurrent congestion. The Board finds that the evidence does not clearly and unmistakably demonstrate that the veteran's nose bleeds preexisted his entry into the military service in May 1989. As stated above, during inservice treatment for his nose bleeds, the veteran stated in July 1991 that they began two and a half years before and stated in April 1993 that they began three years before. This would mean they began either around January 1989 or April 1990. The veteran's in-service statements do not clearly and unmistakably show that his nose bleeds preexisted service. In addition, the March 2006 VA opinion, which states that it appeared that the veteran's disability occurred prior to service is not persuasive. The phrasing of this opinion is speculative and does not rise to the level of clear and unmistakable evidence. See 38 C.F.R. §§ 3.102, 3.306. The November 2005 examiner, however, specifically opined that the veteran's recurrent epistaxis was related to service. In light of the November 2005 VA examiner's opinion and the veteran's in-service treatment for nose bleeds, the Board finds that the veteran's recurrent epistaxis was incurred during service; therefore, service connection is warranted. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). ORDER Service connection for recurrent epistaxis is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs