Citation Nr: 19166321 Decision Date: 08/27/19 Archive Date: 08/27/19 DOCKET NO. 16-09 017 DATE: August 27, 2019 REMANDED Entitlement to service connection for a right deviated septum is remanded. REASONS FOR REMAND The Veteran served on active duty from May 2002 to September 2007. The Veteran received the Combat Action Ribbon, among other decorations. This matter is before the Board of Veterans’ Appeals on appeal from a May 2015 rating decision. In March 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ), and a transcript has been associated with the record. 1. Entitlement to service connection for a right deviated septum is remanded. The Veteran is claiming entitlement to service connection for a right deviated septum as he underwent surgery for this condition during active duty service. The Veteran was diagnosed with a deviated septum and underwent a procedure in July 2007. The Veteran’s medical records indicate that the Veteran has a had a chronic right nasal obstruction for many years and that he fractured his nose as a child. The Veteran’s fractured nose and deviated septum was not noted on his January 2002 entrance examination. When a condition is not noted on an entrance examination, the Veteran is presumed to be sound at entrance. The Veteran’s representative further argued that the Veteran’s deviated septum could have been caused by exposure to chemicals or other environmental toxins during service. When the Veteran is presumed sound at entrance, the burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran’s disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) in Horn v. Shinseki, explained that even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness. Rather, the burden is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. 25 Vet. App. 231, 235 (2012). Clear and unmistakable evidence means that the evidence “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The clear-and-unmistakable-evidence standard is an “onerous” one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993). Here, the Veteran underwent a VA examination in April 2015 for his deviated septum. While the VA examiner noted that the Veteran’s medical records indicate that he has “the residual of nasal septal surgery,” he did not opine whether the Veteran’s nasal septal surgery was related to a congenital defect, or whether there is clear and unmistakable evidence that the Veteran’s deviated septum preexisted service or whether the Veteran’s service did not cause any aggravation of the disability beyond its natural progression. Therefore, the April 2015 VA examiner’s opinion is insufficient, and a new VA examination is necessary. On remand, the RO should schedule the Veteran for a new VA examination and an opinion should be obtained to determine whether the Veteran’s deviated septum was a preexisting condition and if so whether it was aggravated beyond its natural progression by an in-service injury, event, or illness. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s right deviated septum. The examiner must opine: a) Does the Veteran have a right deviated septum? The examiner must address the statements from the Veteran regarding his claimed deviated septum disability and the prior medical records indicating the Veteran had a deviated septum. b) The VA examiner must opine whether there is clear and unmistakable evidence that the Veteran’s deviated septum existed prior to entry into active duty in May 2002? The examiner must discuss all lay statements. c) If the Veteran’s deviated septum clearly and unmistakably existed prior to service, was it “clearly and unmistakably” (obviously or manifestly) not aggravated by military service, to include exposure to chemicals or other environmental toxins during service? In this special context, “aggravation” has occurred where there is an increase in disability beyond the natural progress of the disability.   d) If the answer to either question above is no, then the examiner must opine whether it is “at least as likely as not” (50 percent or greater probability) that any current deviated septum disability was due to an inservice injury, event or disease, to include exposure to chemicals or other environmental toxins during service? H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Boal, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.