Citation Nr: 1310772 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 09-42 689 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a deviated nasal septum. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from December 1957 to December 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2008 decision by the RO that, in pertinent part, declined to reopen a previously disallowed claim for service connection for a deviated nasal septum. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). In August 2012, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. During the hearing, the Veteran submitted additional evidence in support of his appeal, along with a waiver of RO review. See 38 C.F.R. § 20.1304(c) (2012). In addition to the paper claims file, the Veteran has an electronic claims file in Virtual VA. The Board has reviewed the documents in the electronic file, and finds that they are duplicative of those contained in the paper file and/or are irrelevant to the issue on appeal. The Board's present decision is limited to the matter of whether new and material evidence has been received to reopen the previously disallowed claim for service connection for a deviated nasal septum. For the reasons set forth below, the underlying matter of the Veteran's entitlement to service connection for a deviated nasal septum is being REMANDED to the RO, via the Appeals Management Center (AMC) in Washington, D.C. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. By a decision entered in February 1980, the Board disallowed the Veteran's claim for service connection for a deviated nasal septum; the Board found that the disability had pre-existed service, and had not been aggravated thereby. 2. Evidence received since the time of the Board's February 1980 decision includes a January 1986 medical report suggesting that post-service deficits of the nose and nasal passages might be attributable, at least in part, to surgeries performed during the Veteran's period of active duty; the evidence also includes a July 2012 medical report indicating that the Veteran continues to suffer from such deficits. CONCLUSIONS OF LAW 1. The Board's February 1980 decision, denying service connection for a deviated nasal septum, is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). 2. New and material evidence has been received to reopen the Veteran's claim for service connection for a deviated nasal septum. 38 U.S.C.A. §§ 1110, 1131, 1153, 5108 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under applicable law, 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.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). If a disorder noted at the time of a veteran's examination, acceptance, and enrollment into service undergoes a chronic or permanent increase in severity during service, it is presumed that the disability was aggravated by service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2012). This presumption can be rebutted only by clear and unmistakable evidence demonstrating that the increase was due to the natural progress of the condition. 38 C.F.R. § 3.306(b). In the present case, the Board, by a decision entered in February 1980, denied the Veteran's claim for service connection for a deviated nasal septum. The Board found that the disability, which had been noted at enlistment, and therefore pre-existed service, had not been aggravated by service. That decision was final when entered. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. Accordingly, the claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156; Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. "New and material evidence" can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, the evidence received since the time of the Board's February 1980 disallowance includes a January 1986 medical report from St. Joseph's Hospital and Medical Center suggesting that post-service deficits of the nose and nasal passages might be attributable, at least in part, to surgeries performed during the Veteran's period of active duty. The evidence also includes a July 2012 medical report from Southwestern Colorado Ear, Nose, and Throat Associates indicating that the Veteran continues to suffer from such deficits. This evidence was not before the Board when the Veteran's claim was denied in February 1980, relates to an unestablished fact necessary to substantiate the claim (i.e., that in-service treatment for a deviated nasal septum may have given rise to additional disability), and, presuming its credibility for new and material evidence purposes, raises a reasonable possibility of substantiating the claim. It is therefore new and material. The claim for service connection for a deviated nasal septum is reopened. In view of the Board's present action on this claim, there is no need to engage in any analysis with respect to whether the requirements of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), have been satisfied with respect to the question of reopening. See, e.g., Kent v. Nicholson, 20 Vet. App. 1 (2006). That matter is moot. ORDER The Veteran's claim for service connection for a deviated nasal septum is reopened; to this limited extent, the appeal is granted. REMAND Generally speaking, when VA receives a complete or substantially complete application for benefits, it is required to make reasonable efforts to help the claimant obtain evidence necessary to substantiate his claim, to include relevant records from Federal and private sources. 38 U.S.C.A. § 5103A(b), (c) (West 2002); 38 C.F.R. § 3.159(c)(1)-(3). VA is also required to provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4). As outlined above, although the Veteran's deviated nasal septum was noted at enlistment, the record contains some medical evidence which suggests that post-service deficits of the nose and nasal passages might be attributable, at least in part, to surgeries performed during the Veteran's period of active duty. Under the circumstances, the Board finds it necessary to obtain an examination and opinion with respect to the likelihood that the Veteran's disorder underwent a chronic or permanent increase in severity during service and, if so, whether such increase was clearly and unmistakably evidence due to the natural progress of the condition. See, e.g., McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). A remand is required. 38 C.F.R. § 19.9. For the reasons stated, this case is REMANDED for the following actions: 1. Arrange to have the Veteran scheduled for an examination of his nose. The examiner should review the claims file, examine the Veteran, perform any testing deemed necessary, and provide an opinion with respect to each of the following questions: a. Is it at least as likely as not (i.e., is it 50 percent or more probable) that the Veteran's deviated septum, noted at enlistment, underwent a permanent increase in severity during service, whether as a result of in-service surgeries in 1958 and 1968 or otherwise? b. If it is at least as likely as not that the Veteran's pre-existing deviated septum underwent a permanent increase in severity during service, is it clear and unmistakable (i.e., obvious, manifest, or undebatable) that such increase in severity was due to the natural progress of the condition? c. Is it at least as likely as not that the currently noted deficits of the Veteran's nose and nasal passages are etiologically related to those noted in service? In arriving at his or her opinion, the examiner should comment on the significance, if any, of the evidence which shows that there was no obstruction of the Veteran's nasal passages at the time of his examination for enlistment in December 1957 and that, postoperatively, in August 1958, the septum was noted to be bent to the right with subsequent bulging in the right nasal chamber and a "poor" airway. The examiner should also discuss the significance of a November 1959 sick call treatment record, noting that the Veteran suffered a traumatic contusion of the nose, with no evidence of fracture or serious injury; a February 1963 report describing the Veteran's airway on the right as "fair"; a January 1968 surgical consult indicating that the Veteran required complete nasal reconstruction; a January 1975 ear, nose, and throat consultation report showing that the Veteran's symptoms were that of a compromised nasal airway, with a moderate anterior obstruction, and that he breathed through his mouth much of the time; a March 1979 VA examination report, noting that the Veteran had a nasal deformity "secondary to three surgeries"; and a January 1986 medical report from St. Joseph's Hospital and Medical Center indicating that the Veteran had post-service deficits of the nose and nasal passages were attributable to "previous trauma in surgery." A complete medical rationale for all opinions expressed must be provided. 2. After conducting any additional development deemed necessary, the claim on appeal should again be reviewed. If the benefit sought remains denied, furnish a supplemental statement of the case (SSOC) to the Veteran and his representative, and afford them an opportunity to respond. After the Veteran and his representative have been given an opportunity to respond to the SSOC, the claims file should be returned to this Board for further appellate review. No action is required by the Veteran until he receives further notice, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This matter must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs