Citation Nr: 1606257 Decision Date: 02/18/16 Archive Date: 03/01/16 DOCKET NO. 09-29 609 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a deviated nasal septum as secondary to a healed fractured bridge of the nasal bone. 2. Entitlement to service connection for chronic rhinitis with Eustachian tube dysfunction, to include as secondary to a healed fractured bridge of the nasal bone. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from December 1960 to November 1964 with additional service with the National Guard and Reserve. He retired from the Reserve in March 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a hearing before the Board in May 2011. A transcript of the hearing is of record. Thereafter, the case was remanded in November 2011 and September 2013. The issue of entitlement to service connection for chronic rhinitis with Eustachian tube dysfunction is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT A deviated nasal septum is causally related to a healed fracture of the bridge of the nasal bone. CONCLUSION OF LAW A deviated nasal septum is proximately due to a service-connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.310 (2015).tum REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Since the entire benefit sought on appeal has been granted, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)). See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Analysis Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2015). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When aggravation of a Veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id. The Veteran claims entitlement to service connection for a deviated septum secondary to residuals of a fracture of the bridge of the nasal bone. While the Veteran initially claimed service connection specifically for chronic rhinitis with Eustachian tube dysfunction, following a diagnosis of a deviated nasal septum and arguments submitted by the Veteran, the Board in a September 2013 remand expanded the issue on appeal to include a deviated nasal septum. See generally Clemons v. Shinseki, 23 Vet. App. 1 (2009) (VA must consider alternate disorders within the scope of an initial claim for service connection for a specific disability). Following the Board's September 2013 remand, an addendum opinion was obtained in June 2014 which stated, in pertinent part, that there is "no confusion" that the Veteran's deviated nasal septum is related to his service-connected nasal fracture. The examiner later noted that the Veteran's service-connected nasal fracture resulted in a deviation of the nasal septum. "A Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in "relative equipoise, the law dictates that the Veteran prevails." Id. In light of the June 2014 addendum VA opinion finding there to be "no confusion" that the Veteran's deviated nasal septum is related to his service-connected healed nasal fracture, entitlement to service connection for a deviated nasal septum is granted. ORDER Entitlement to service connection for a deviated nasal septum is granted. REMAND Regarding the question of entitlement to service connection for chronic rhinitis with Eustachian tube dysfunction, the June 2014 addendum opinion found that the nasal fracture with deviated septum would be anatomic in nature, while rhinitis with Eustachian tube dysfunction would be inflammatory in nature. The VA examiner noted that current medical literature would not support a finding that an anatomic disorder (nasal fracture with deviated septum) would cause or aggravate an inflammatory issue (chronic rhinitis). In a December 2015 Informal Hearing Presentation, however, the representative suggested that credible medical sources do suggest that structural abnormalities may result in rhinitis. Indeed, the website cited by the Veteran's representative notes that a possible cause of rhinitis includes "structural abnormalities," such as acquired abnormalities including septal deviation. In light of the Board's grant of service connection for a deviated nasal septum, an addendum opinion should be secured addressing the evidence presented by the Veteran's representative. Accordingly, the case is REMANDED for the following action: 1. Forward the claims file to an otolaryngologist for an addendum opinion addressing the nature and etiology of any diagnosed rhinitis with Eustachian tube dysfunction. If the physician determines an in-person examination would be beneficial, one is to be arranged. The entire claims file, to include all VBMS and Virtual VA files, as well as a copy of this REMAND, must be provided to the examiner for review, and the examination report should reflect that such a review was accomplished. All clinically indicated testing and/or consultations must be conducted. Following a review of the claims file, and any necessary physical examination of the Veteran, the examiner is to address the following: a. Is it at least as likely as not (probability of at least 50 percent) that the Veteran's claimed chronic rhinitis with Eustachian tube dysfunction had its onset or is otherwise etiologically related to his period of active service? b. If not, is it at least as likely as not (probability of at least 50 percent) that the Veteran's claimed chronic rhinitis with Eustachian tube dysfunction is proximately due to (caused by) a deviated nasal septum and/or healed fracture of the bridge of the nasal bone? c. If not, is it at least as likely as not (probability of at least 50 percent) that the Veteran's claimed chronic rhinitis with Eustachian tube dysfunction has been permanently aggravated by a deviated nasal septum and/or healed fracture of the bridge of the nasal bone? The examiner is instructed that the phrase "caused by or result of" is insufficient to address the question of aggravation. For the purpose of providing the requested opinions, the physician is instructed to (1) accept the finding that the Veteran has been diagnosed with chronic rhinitis with Eustachian tube dysfunction during the appeal period; and (2) address the medical literature cited by the Veteran's representative indicating structural abnormalities, including septal deviation, as a possible cause of rhinitis (see December 2015 Informal Hearing Presentation). http://www.uptodate.com/contents/an-overview-of-rhinitis A complete rationale must be provided for all opinions expressed. 2. After completing the above, and any other development deemed necessary, readjudicate the Veteran's appeal based on the entirety of the evidence. If the benefit sought on appeal is not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs