Citation Nr: 21061949 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 15-00 746 DATE: October 5, 2021 REMANDED Entitlement to service connection for a nasal disability is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1974 to August 1977. This matter came before the Board of Veterans Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran's Law Judge during an April 2018 hearing. The transcript of the hearing is of record. The issues on appeal were remanded in July 2018, September 2020, and April 2021 for further development. Evidence in the record suggests that the Veteran has been diagnosed with multiple nasal conditions; therefore the Board will broadly construe the issue of service connection for sinusitis as a claim for service connection for a nasal disability, to include rhinitis and a deviated septum. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (holding that the Board must consider any disability that "may reasonably be encompassed by" the description of the claim and symptoms and other submitted information). 1. Entitlement to service connection for a nasal disability. In response to the April 2021 BVA decision, the AOJ obtained an April 2021 VA examination to determine the nature and etiology of the Veteran's nasal disability. The examiner diagnosed the Veteran with allergic rhinitis and opined that he did not have sinusitis. The examiner based this opinion on the lay statements of both the Veteran and his wife, as well as the lack of signs or symptoms of chronic sinusitis in the medical record. He also found that the Veteran's rhinitis was less likely as not related to military service, citing the gap in treatment between the Veteran's service, which ended in 1977, and the record of treatment in 2012. The Board finds that the April 2021 VA examination is inadequate because it improperly disregards the Veteran's lay statements due to the lack of contemporaneous medical records. In his etiology finding, the examiner cited to the gap in treatment between the Veteran's service and the first recorded treatment for rhinitis in 2012, without discussion as to the Veteran's lay statements regarding the continuity of symptoms during and since service. Therefore, the April 2021 opinion is inadequate, and remand is required. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). The Board finds that the April 2021 VA examination is also incomplete. The examiner did not include in his diagnosis or discussion all the diagnosed nasal disabilities in the Veteran's medical record. The Veteran has had a diagnosis of a deviated septum since June 2012, and he underwent a septoplasty with resection of the turbinate bone in October 2012. The VA examination does not include any discussion about this condition or its relationship to the Veteran's rhinitis, which the examiner noted also dates to at least 2012. As discussed above, the VA is required to liberally construe all claims to include those that may be reasonably encompassed by the description of the claim, symptoms, and other submitted information. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). Sinusitis, rhinitis, and a deviated septum all relate to the same body system and therefore may reasonably be considered together. A remand for an opinion regarding the diagnoses of, etiologies of, and relationships between all nasal disabilities is required to properly assess their relation to service. The Veteran contends that his nasal disability began due to an in-service hand-to hand training injury and has continued since service. The Veteran's service treatment records are minimal and appear only to include his separation assessment, despite 3 years of active service. In February 2019, the service department indicated that it had responded to VA inquiries with the entirety of its available record, and there is no indication that other available outstanding military records exist. Three remands to obtain an etiology opinion have been made during the pendency of this appeal, and each has been found to be inadequate on the grounds that it cited the lack of service treatment records as evidence that there was no in-service injury or symptoms. At the April 2018 hearing, both the Veteran and his spouse testified to the in-service injury. The Veteran is competent to report injuries he experienced during service and his consistent lay testimony cannot be found to lack credibility due to the unavailability of contemporaneous medical records, particularly when those records are incomplete or missing through no fault of the Veteran. Id.; see also Marciniak v. Brown, 10 Vet. App. 198, 200 (1997), citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Here, the Veteran's testimony is corroborated by the competent lay statement of his spouse and is consistent with the evidence of his duties in his service personnel records. Moreover, the undersigned had the opportunity to observe the Veteran's demeanor at his April 2018 Board hearing and finds him to be credible. See Arneson v. Shinseki, 24 Vet. App. 379, 382-383 (2011); Caluza v. Brown, 7 Vet. App. at 511. The Board therefore concedes the in-service injury reported by the Veteran, based upon his competent and credible lay testimony, and the conceded in-service injury should be considered upon remand. 2. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that his obstructive sleep apnea is secondary to his nasal disability. As noted above, the Veteran has multiple possible nasal diagnoses which involve the respiratory system and may impact his sleep. In addition, during an April 2018 hearing, both the Veteran and his spouse endorsed snoring and poor sleep during and since service. An August 2019 VA examination diagnosed the Veteran with moderate obstructive sleep apnea, citing to a June 2012 sleep study which diagnosed the same. However, no etiology opinion was obtained regarding direct or secondary service connection. A remand for a new etiology opinion discussing all theories of entitlement, the lay statements made by the Veteran and his spouse, and the relationship of this condition to his other disabilities is necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination, to determine the etiology of any current nasal disability, to include sinusitis, rhinitis, and a deviated septum. The examiner should review the file and provide a complete rationale for all opinions expressed. The examiner should discuss the relationship between all nasal disabilities, including causation and aggravation. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran's active service. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. For the purposes of rendering a nexus opinion, the examiner should assume that the Veteran received a blow to the nose during in-service hand-to-hand training. 2. After the development in (1), schedule the Veteran for an appropriate VA examination, to determine the etiology of any current sleep apnea disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current sleep disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran's active service, to include whether it was caused or aggravated by any service-connected nasal disability. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. 3. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Bock 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.