Citation Nr: 18142156 Decision Date: 10/12/18 Archive Date: 10/12/18 DOCKET NO. 16-25 293 DATE: October 12, 2018 ORDER The Veteran’s petition to reopen his claim for entitlement to service connection for a deviated septum is granted. Entitlement to service connection for sleep apnea is granted. REMANDED Entitlement to service connection for a deviated septum is remanded. Entitlement to a disability rating in excess of 10 percent for asthma is remanded. FINDINGS OF FACT 1. In an unappealed January 1982 decision, the claim for entitlement to service connection for a deviated septum was denied. 2. Evidence received since the final 1982 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a deviated septum. 3. The evidence demonstrates that the Veteran has obstructive sleep apnea that is proximately related to his service connected asthma. CONCLUSIONS OF LAW 1. The January 1982 rating decision denying entitlement to service connection for a deviated septum is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.1103, 20.1104 (2018). 2. New and material evidence has been received since the January 1982 rating decision denying entitlement to service connection for a deviated septum; the claim for entitlement to service connection for a deviated septum is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from March 1977 to September 1981. This matter comes before the Board from a September 2014 rating decision. The Veteran appeared before the undersigned Veterans Law Judge at a Board hearing in April 2017. The transcript is in the record. 1. Whether new and material evidence has been received sufficient to reopen a claim for a deviated septum New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). A January 1982 rating decision denied the Veteran’s claim for a deviated septum. While the Veteran had undergone septoplasty in service for a deviated septum, and later underwent a revision of the septoplasty and rhinoplasty, the RO determined was no in-service trauma to the Veteran’s septum. The suggestion was that the Veteran’s deviated septum was that it was a congenital defect that was surgically corrected in service. The Veteran did not appeal the decision, no new and material evidence was received within a year of the decision. The decision therefore became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In October 2013, the Veteran filed a petition to reopen his claim for service connection for a deviated septum. At the April 2017 Board hearing the Veteran stated that he is still experiencing breathing issues that he attributes to the deviated septum he had in service or the in-service procedure to correct his deviated septum. He explained that the multiple in-service septoplasty had actually made his overall condition worse. The evidence is new, because it was not of record at the time of the January 1982 decision. The evidence is also material because it contains evidence that the Veteran may be experiencing symptoms related to the deviated septum in-service or the procedure to correct the deviated septum. The evidence is neither cumulative nor redundant of the evidence of record, and raises a reasonable possibility of substantiating the Veteran’s claim. As such, the Veteran’s claim must be reopened. 2. Entitlement to service connection for sleep apnea Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310 (2015). The Veteran contends his currently diagnosed sleep apnea is caused by his service connected asthma. He was diagnosed with mild obstructive sleep apnea in an October 2013 sleep study. A VA examiner opined in May 2014 that the Veteran’s sleep apnea was at least as likely as not proximately due to the Veteran’s service connected asthma. The examiner explained that the Veteran’s asthma prevented his lungs from ventilating and perfusing enough oxygen to the brain and this resulted in apneic events. The fact that the Veteran has other respiratory disorders that contribute to the sleep apnea is immaterial as his asthma has been clearly linked as a cause or aggravating factor to the development of the sleep apnea. Accordingly, the Board finds the Veteran has sleep apnea that is proximately due to his service connected asthma. Service connection is warranted. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for asthma is remanded. At the April 2017 hearing, the Veteran asserted that his asthma has increased in severity since the Veteran was last examined by VA. The Veteran states that he is on a daily inhaler and that he is experiencing more exacerbation incidents as a result of his asthma. The current medical records in the claims file do not clearly indicate which medications are to treat the Veteran’s asthma and which are to treat his chronic obstructive pulmonary disease (COPD). Additionally, there is conflicting information about which disability is the primary cause of the exacerbation events. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity, manifestations, and medications for his asthma. 2. Entitlement to service connection for a deviated septum is remanded. The Veteran had surgery to correct a deviated septum while in-service. The usual effects of surgery performed to ameliorate a condition incurred before service, including poorly functioning parts, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306 (b)(1). It is within that context that the Veteran states that he experiences breathing issues related to his deviated septum or the procedure to correct it. The medical records are unclear as to whether there is a current diagnosis related to a deviated septum. A deviated septum is listed in his post-service medical records, but there is no record of ongoing treatment for the issue. Considering the Veteran’s contention of ongoing breathing issues, there is an indication that the issue with the Veteran’s septum may have continued since service, but there is insufficient competent evidence in the file to decide the claim. A VA examination is warranted to determine the whether the Veteran currently has a deviated septum or residual breathing issues related to a deviated septum and if so, the etiology. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected asthma. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to asthma alone and discuss the effect of the Veteran’s asthma on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (a.) To the extent possible, the examiner should differentiate the symptoms attributable to the Veteran’s service connected asthma and which are attributable to the Veteran’s non-service connected COPD. (b.) To the extent possible, the examiner should detail which medications were prescribed to treat the Veteran’s service connected asthma and which were prescribed to treat the Veteran’s non-service connected COPD. 2. Schedule the Veteran for a VA examination to determine whether the Veteran has a deviated septum or residual issues from the in-service procedures to correct his septum. All pertinent symptomatology and findings must be reported in detail. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should: (a.) Identify all disabilities of the septum or disabilities related to a deviated septum found to be present or that have existed during the appeal period. (b.) State whether there is clear and unmistakable evidence that the Veteran’s deviated septum existed prior to his active service. (c.) If the deviated septum preexisted service, state whether the multiple septoplasties performed in service aggravated (worsened) his deviated septum. Rationale should be provided for all opinions. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Rekowski, Associate Counsel