Citation Nr: 21002139 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-01 164 DATE: January 12, 2021 REMANDED Entitlement to service connection for a deviated nasal septum is remanded. Entitlement to service connection for sinusitis due to a deviated nasal septum is remanded. Entitlement to service connection for breathing problems (including rhinitis), claimed as secondary to a deviated nasal septum is remanded. Entitlement to service connection for nosebleeds, claimed as secondary to a deviated nasal septum is remanded. Entitlement to service connection for headaches, claimed as secondary to a deviated nasal septum is remanded. Entitlement to service connection for a sleep disorder, claimed as secondary to a deviated nasal septum is remanded. REASONS FOR REMAND The Veteran had active duty for training (ADT) from May 16, 1989 to August 13, 1989, and periods of active service from October 2, 2001 to May 31, 2002, and September 14, 2005 to October 27, 2005, with additional periods of service in the Air National Guard (ANG). This case comes to the Board of Veterans’ Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) decision dated in October 2012. The Veteran testified before the undersigned Veterans Law Judge at a December 2018 hearing; a transcript of the hearing is of record. This case was previously remanded to the AOJ in May 2019, for additional development, and was subsequently returned to the Board. 1. Service connection for a deviated nasal septum is remanded. 2. Service connection for sinusitis is remanded. 3. Service connection for breathing problems (including rhinitis) is remanded. 4. Service connection for recurrent nosebleeds is remanded. 5. Service connection for headaches is remanded. 6. Service connection for a sleep disorder is remanded. While further delay is regrettable, the Board finds that remand is required as there was inadequate compliance with the Board's prior remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran contends that he incurred a deviated nasal septum during active duty after being hit in the face and nose in November 2001, and that he has current sinusitis, breathing problems (due to nasal congestion or obstruction), a sleep disorder, nosebleeds and headaches secondary to the deviated septum. See Veteran’s September 2011 and December 2011 statements, January 2016 substantive appeal, and December 2018 Board hearing. At his December 2018 Board hearing, the Veteran testified that he was hit in the nose and face in an altercation in November 2001, suffering a split upper lip up to his nose, as well as chipped teeth. He said that he was first treated for this injury at a VA Medical Center, where he was given stitches, and about a week later, at the end of November 2001, he was treated for this injury at a military facility, where he was diagnosed with a deviated nasal septum. He stated that he subsequently had a stuffy nose, headaches, sinusitis, chronic nosebleeds, and sleepless nights, and did not have these conditions prior to that incident. He clarified that by “breathing problems” he meant nasal congestion and/or obstruction, and said one side of his nose is always clogged up. See hearing transcript at page 26. The Board previously remanded this appeal to obtain a copy of November 2001 VA treatment records relating to the Veteran's documented facial trauma during a period of active duty. These records have not been obtained, and are not associated with the claims file. Instead, the AOJ has obtained an appointment summary of a VA emergency room note dated November 24, 2001, which reflects that the Veteran was seen for multiple open wound(s) of unspecified sites, without mention of complication, from an unarmed fight or brawl. The AOJ has not indicated that VA treatment records of this incident do not exist or are unavailable. The appeal must be remanded to obtain the VA treatment records from this incident. See 38 C.F.R. § 3.159(c)(2); Stegall, supra. The Board notes that the Veteran has only achieved “veteran” status with regard to the periods from October 2, 2001 to May 31, 2002, and September 14, 2005 to October 27, 2005. He has no other periods of active duty service and is not currently service connected for any disabilities incurred or aggravated in the line of duty for active duty for training (ADT) or inactive duty training (IDT). Because the Veteran’s National Guard training duty was only occasional, the onset of his claimed conditions must be related to a specific period of active service or training duty. To have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed “full-time duty” under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. See 38 U.S.C. §§ 101 (21), (22)(C). Service treatment records reflect that the Veteran received two facial injuries, one on May 2, 2001, and one during active duty in November 2001. Service personnel records show that he was not in service on May 2, 2001, the date of the injury, and he was on IDT from May 3 to 4, 2001. Service treatment records reflect that on May 3, 2001, the Veteran was treated for facial discomfort and swelling after being hit in the face with a softball the previous night (i.e., May 2, 2001), and private medical records dated on May 2, 2001 reflect treatment for a facial contusion. The Board also remanded the Veteran’s claims to obtain a medical opinion as to whether his claimed disabilities were incurred in or caused by service. A November 2019 VA examination was conducted, and the examiner provided a negative nexus opinion based on a finding that the Veteran's deviated nasal septum was “resolved.” However, the requirement that a Veteran have a current disability before service connection may be awarded is satisfied if the Veteran has a disability at the time the claim for disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A deviated nasal septum was diagnosed on VA examination in September 2012, during the pendency of the appeal, and therefore the November 2019 VA medical opinion is inadequate, and remand is required for a supplemental medical opinion. A supplemental opinion should also be obtained with regard to the other claimed conditions, which the Veteran contends are secondary to a deviated nasal septum. The Board notes that the November 2019 VA examiner diagnosed allergic rhinitis and sinusitis, and the September 2012 VA examiner opined that the breathing difficulty (partly caused by a condition of mucosal crusting), sleep disorder (occasional nocturnal arousal), and mild pressure head discomfort are at least as likely as not proximately due to or a result of the deviated nasal septum. A deviated nasal septum can be a congenital or developmental defect for which service connection would be precluded by 38 C.F.R. § 3.303 (c), although it may be acquired due to trauma. VA’s Rating Schedule (38 C.F.R. Part 4), authorizes compensation only for a deviated septum resulting from trauma. See 38 C.F.R. § 4.97, Diagnostic Code 6502. The matters are REMANDED for the following action: 1. Obtain a copy of any VA medical records of treatment for a facial injury dated in November 2001, including in the emergency room, and associate them with the claims file. If the records are unavailable or do not exist, the file should be annotated to reflect this, and the Veteran and his representative should be notified. 2. After the above VA treatment records are associated with the file, or if they are unavailable, obtain a supplemental VA medical opinion for the claimed deviated nasal septum, sinusitis, breathing difficulty (to include rhinitis), headaches, nosebleeds, and a sleep disorder. The examiner must review the claims file. An examination need only be performed if deemed necessary by the examiner. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (a) Did a deviated nasal septum clearly and unmistakably (undebatable) preexist the Veteran’s active duty service from October 2, 2001 to May 31, 2002? (b) Is the Veteran’s deviated nasal septum a congenital or developmental defect or a congenital or hereditary disease? For VA purposes, a “defect” is defined as a structural or inherent abnormality or condition that is more or less stationary in nature and is generally incapable of improvement or deterioration. In contrast, a “disease” is capable of improvement or deterioration. The physician must offer the opinion in the terms as listed above. (c) If the deviated septum is a congenital or developmental defect, was it subject to, or aggravated by, a superimposed disease or injury, to include the facial trauma in November 2001 that resulted in additional disability? Please identify the additional disability. (d) If the examiner finds that a deviated nasal septum did clearly and unmistakably preexist service, was it clearly and unmistakably not aggravated by service? If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to service, including the documented facial injury in November 2001. (e) Are any of the claimed disabilities of sinusitis, breathing difficulty (to include rhinitis), headaches, nosebleeds, and a sleep disorder at least as likely as not related to service, including the documented facial injury in November 2001? (f) Are any of the claimed disabilities of sinusitis, breathing difficulty (to include rhinitis), headaches, nosebleeds, and/or a sleep disorder at least as likely as not proximately due to or aggravated by a deviated nasal septum? (g) Is it at least as likely as not that chronic headaches (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support the opinion(s). In providing the requested opinions, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. L. Wasser, 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.