Citation Nr: 18160150 Decision Date: 12/27/18 Archive Date: 12/26/18 DOCKET NO. 17-04 595A DATE: December 27, 2018 REMANDED Entitlement to service connection for residuals of a broken nose is remanded. Entitlement to service connection for sleep apnea, claimed as secondary to residuals of a broken nose, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1989 to July 1994. The Veteran seeks entitlement to service connection for residuals of a broken nose as well as sleep apnea, claimed as secondary to residuals of a broken nose. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. The Veteran alleges that another soldier broke his nose while stationed at Fort Sam Houston in San Antonio, Texas, in the early 1990s, and that he did not receive adequate treatment, causing sleep apnea to develop secondary to the unresolved nose symptomatology. A review of the Veteran’s service treatment records reveals that he sought treatment for a fractured nose at Walter Reed Army Medical Center in Washington, D.C., in March 1991, at which time he was diagnosed as having a deviated nasal septum secondary to trauma, and then referred to the Ear, Nose and Throat (ENT) Clinic for repair. However, there is nothing in the record indicating that the Veteran received subsequent treatment for this condition while in service. Indeed, in his January 2017 VA Form 9, the Veteran indicated that he was never actually scheduled for an appointment with the ENT Clinic. On a June 1996 Report of Medical History conducted at the 4209th U.S. Army Hospital in Lexington, Kentucky, while the Veteran was in the Army Reserves, he reported fracturing his nose while on active duty at Fort Sam Houston in 1992. A March 2014 private treatment note indicated that the Veteran underwent a sleep study in which he tested positive for moderate sleep apnea, noting that he had a prior history of “quite severe nasal fracture.” He was scheduled with a nose and throat specialist for an evaluation to determine whether anything could be done to correct the airway which would improve his diagnosed obstructive sleep apnea. The Veteran was scheduled in May 2014 for surgery to correct the nasal deviation, which was said to be causing the sleep apnea. In June 2014, the Veteran filed his current claim of entitlement to service connection for sleep apnea. The Veteran underwent a VA examination in July 2015, at which time the VA examiner acknowledged that the Veteran had been diagnosed as having a deviated nasal septum secondary to trauma in 1991, and diagnosed as having chronic sinusitis in 2015. However, the VA examiner then opined that the claimed condition was less likely than not incurred in or caused by an in-service injury, event, or illness. In support of this conclusion, the VA examiner simply stated that, “VETERAN HAS NO RESIDUALS OF FRACTURE OF NOSE. X RAYS OF NASAL BONES ARE NORMAL. VETERAN HAS NO CURRENT PROBLEMS WITH THE NOSE.” The Board finds that the July 2015 VA examination report is inadequate. Although the VA examiner stated that residuals of a nose fracture were not present at the time of the July 2015 VA examination, the Veteran's private treatment records contain diagnoses proximate to the submission of the Veteran's claim in June 2014. Pursuant to McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the requirement of the existence of a current disability for the purpose of a grant of service connection is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. Moreover, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Additionally, the VA examiner did not provide an opinion as to the likelihood that the Veteran’s sinusitis (which was diagnosed at the time of the July 2015 VA examination) was caused or aggravated by the previously-diagnosed deviated nasal septum. Once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303 (2007). Given the above, the Veteran should be afforded a new VA examination to determine the likely nature and etiology of his claimed residuals of a broken nose and sleep apnea, to include the likelihood that residuals were present at any time during the appeal period. The matters are REMANDED for the following action: 1. Request that the Veteran identify all private and VA providers who have treated him for his claimed residuals of a broken nose and/or sleep apnea. After securing any necessary authorizations, obtain any identified treatment records. The RO must adhere to the procedures outlined in 38 C.F.R. § 3.159. 2. After completing the above and any other appropriate development, schedule the Veteran for an appropriate VA examination(s) to determine the current nature and probable etiology of his claimed residuals of a broken nose, and sleep apnea. The record, to include a copy of this Remand, must be made available to the examiner for review and the examiner must state in the examination report that the record has been reviewed. All indicated tests should be performed. The examiner should identify all disorders of the nose found to be present, including possible sleep apnea and sinusitis resulting from a deviated nasal septum, since June 6, 2014. In this regard, the VA examiner should reconcile the findings of nasal deviation and resulting sleep apnea found in the Veteran’s private treatment records as recently as May 2014 with the July 2015 VA examination finding of no residuals of a fractured nose. Specifically, the VA examiner should opine as to whether the previous diagnoses of nasal deviation and resulting sleep apnea were proper and currently asymptomatic, or rather misdiagnoses. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that a service connection claim may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved). Rationale must be provided for the opinion proffered. With respect to each disorder diagnosed, the VA examiner should then offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any such disability is etiologically related to the Veteran's military service. With respect to each disorder diagnosed, the VA examiner should then offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any such disability was caused or aggravated by the deviated nasal septum secondary to trauma diagnosed in a March 1991 service treatment note. A complete rationale should be given for all opinions and conclusions expressed. 3. Following the completion of the foregoing, and after undertaking any other development it deemed necessary, readjudicate the Veteran's claims, considering all applicable laws and regulations. If either claim is not granted, then provide the Veteran with a Supplemental Statement of the Case and allow an appropriate period of time for response. Thereafter, the claims file should be returned to the Board for further appellate review, if otherwise in order. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel