Citation Nr: 20056775 Decision Date: 08/27/20 Archive Date: 08/27/20 DOCKET NO. 16-01 425 DATE: August 27, 2020 REMANDED Entitlement to service connection for the residuals of nasal trauma is remanded. INTRODUCTION The Veteran served on active duty from July 1963 to June 1966. This case initially came before the Board of Veterans’ Appeals (Board) on appeal of an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction over the appeal was subsequently transferred to the RO in Waco, Texas. When this case was most recently before the Board in September 2018, the above-noted issue was remanded for a VA examination. The case has now been returned to the Board for further appellate review. REASONS FOR REMAND While further delay of this appeal is quite regrettable, the Board finds additional development is yet again required before the Veteran’s remaining claim can be decided. When the VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholas, 21 Vet. App. 303, 312 (2007). Further, a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, a medical examiner is not free to ignore a veteran’s statements related to lay observable evidence. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). In the September 2018 decision, the Veteran’s claim was remanded to determine whether any current nose disorders, to include deviated septum and hyposmia, were related to an in-service parachuting accident. In November 2019, the Veteran was given a VA examination that included a review of his deviated septum and the possible existence of hyposmia. As to the deviated septum, the record shows that the Veteran has multiple diagnoses of this disorder. Although the November 2019 VA medical examiner again diagnosed the Veteran with a deviated septum, the examiner did not opine on whether the deviated septum was at least as likely as not related to the in-service parachuting injury. As to hyposmia, the November 2019 VA examiner concluded that hyposmia was not diagnosed through his in-office smell tests and that it could not otherwise be diagnosed based on subjective evidence of loss of sense of smell alone. However, the Veteran has consistently reported that his loss of smell comes and goes ever since his active duty service. Thus, the fact that the Veteran was able to identify the tested smells at the examination is not necessarily inconsistent with competent lay statements about his symptoms. Additionally, the November 2019 examiner ignored the existence of the parachuting accident all together because there was a mismatch between the date listed in the in-service jump logs and the Veteran’s on-the-spot recollection 50 years later. At no point, though, did the Veteran give conflicting statements about whether the parachute accident actually happened. The probative value of the examiner’s opinion was undermined by ignoring the evidence that the parachute accident happened simply because the Veteran misremembered the exact date. Without an adequate VA opinion on whether the Veteran’s documented nose trauma from a parachute accident is etiologically related to his deviated septum, the Board cannot make a fully informed decision about service connection. Therefore, another VA examination is necessary. See Stegall, 11 Vet. App. at 271. VA treatment records were most recently updated in December 2019. To the extent there are any outstanding VA treatment records, these should be obtained. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s remaining claims, to include any more recent treatment records related to the claimed disability. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any residuals from his in-service nasal trauma. The examiner must opine whether any current nasal conditions, including but not limited to a (i) deviated septum and (ii) hyposmia, are at least as likely as not (50 percent probability or greater) related to an in-service injury, event, or disease, including nasal trauma incurred during a parachute jump in January 1965. In providing their opinion, the examiner should address the Veteran’s competent reports of loss of smell. Further, the examiner should address all relevant evidence, including the most recent June 2020 private medical record suggesting a possible link between the Veteran’s deviated septum and potential hyposmia. The examiner must provide a complete rationale for all proffered opinions. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rob Schwartz, 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.