Citation Nr: 18107828 Decision Date: 06/04/18 Archive Date: 06/02/18 DOCKET NO. 15-01 545 DATE: June 4, 2018 ORDER Entitlement to service connection for a superficial nerve injury is granted. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT The Veteran’s superficial nerve injury is at least as likely as not related to an in-service surgical procedure on his nose. CONCLUSIONS OF LAW The criteria for entitlement to service connection for a superficial nerve injury have been met. 38 U.S.C. §§ 501, 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had two periods of qualifying service from February 1985 to November 1989 and from March 2012 to October 2012, with additional service in the reserves. During the course of this appeal, he testified at a hearing before the undersigned Veterans Law Judge (VLJ) via live videoconference in August 2017. A transcript of that hearing is associated with the claims file. (The issue of entitlement to education benefits under the post-9/11 GI Bill is also on appeal before the Board of Veterans’ Appeals (Board) and is addressed in a separate decision.) The Board observes that the Veteran filed a timely Notice of Disagreement (NOD) with some issues decided in a November 2016 rating decision but has not yet received statement of the case (SOC). Ordinarily, the claim would be remanded for the issuance of an SOC, however, it appears the RO has acknowledged the Veteran’s NOD and additional action is pending. See July 2017 Report of General Information and e-mail to Veteran’s representative. Therefore, remand for an SOC is not necessary at this time. With respect to the appeals discussed in the November 2016 rating decision, the Veteran has also submitted a form opting to participate in the Rapid Appeals Modernization Program (RAMP). However, the appeals discussed herein are not eligible for RAMP because they were already active before the Board. 1. Entitlement to service connection for a superficial nerve injury Service connection may be established for a disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303. To prevail on the issue of service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247 (1999). After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran asserts that he has lost feeling at the tip of his nose and upper lip as a result of a surgical procedure that he underwent in service. The Board concludes that the Veteran has a current diagnosis of a superficial nerve injury that is related to a surgical procedure performed on his nose during his second period of service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). July 2012 private treatment records show the Veteran underwent a surgical procedure on his nose and throat to alleviate the symptoms of several conditions that were troubling him and not responding to other treatments. As part of this procedure, he was warned that one of the potential risks of this surgical procedure would be numbness to his upper lip. The Veteran has subsequently complained of numbness to his upper lip and the tip of his nose. The August 2016 VA examiner diagnosed this condition as a superficial nerve injury and opined that the Veteran’s superficial nerve injury is at least as likely as not related to the in-service surgical procedure previously described. The rationale was that the area involved in the Veteran’s subjective numbness to the tip of his nose and the under the nose coincided with the surgical scar beneath the Veteran’s nose from that surgical procedure. The Board notes that there is conflicting evidence as to whether the Veteran is diagnosed with this condition. Another VA examiner, in January 2017, stated the Veteran did not have this condition and supported this conclusion by stating that there was “no supporting evidence in the [V]eteran’s medical records supporting numbness on tip of his nose.” However, the Board assigns little probative value to this opinion because the examiner appears to have reached this conclusion without considering or at least without explaining why the examiner discounted the diagnosis made in August 2016. Consequently, the Board finds that the preponderance of the evidence is in favor of granting service connection. REASONS FOR REMAND 1. Entitlement to service connection for OSA is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for OSA because the record is not clear as to whether the Veteran is properly diagnosed with this condition, or another sleeping condition, and whether this condition, if it exists, is related to the Veteran’s in-service surgical procedure. The Veteran originally asserted entitlement to service connection for OSA because, he claims, it was diagnosed in-service. However, a sleep study performed in May 2012 belies that assertion. A December 2013 sleep study appears to have diagnosed “minimal obstructive sleep apnea” and recommended control of sleep disordered breathing using a CPAP machine even though no obstructive apneas were observed during the study. The Board requires a medical opinion explaining whether this result consitutes a diagnosis of sleep apnea. Additionally, in his testimony, the Veteran also raised the possibility that this condition was related to his surgical procedure or otherwise related to the conditions that he was treated for in-service. Consequently, the Board requires an opinion as to whether it is at least as likely as not that this is case. 2. Entitlement to service connection for hypertension is remanded. The Veteran was originally diagnosed with hypertension in May 2011, prior to his return to service. He was subsequently placed on a daily blood pressure medication. However, it does not appear that this was done until after his second period of service had concluded, and treatment records from May 2012 indicate that the Veteran was instructed to obtain an outside evaluation for the management of his blood pressure that was not at that time managed with medication after a medical examination conducted by the medical personnel associated with his second period of service. Under these circumstances, an opinion as to whether his hypertension was aggravated by his second period of service is required. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from January 2018 to the Present. 2. Obtain an opinion from an appropriate clinician regarding whether the Veteran’s OSA or sleep disordered breathing documented in the December 2013 sleep study is at least as likely as not related to the Veteran’s in-service nasal surgery or the conditions that the nasal surgery was intended to treat. If the clinician determines that this cannot be determined without an additional examination, the Veteran should be scheduled for an appropriate examination. (Continued on the next page)   3. Obtain an opinion from an appropriate clinician regarding whether the Veteran’s hypertension is at least as likely as aggravated beyond its natural progression by the Veteran’s second period of service in 2012. If the clinician determines that this cannot be determined without an additional examination, the Veteran should be scheduled for an appropriate examination. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steven H. Johnston, Associate Counsel