Citation Nr: A21017385 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 210827-183492 DATE: October 27, 2021 REMANDED Entitlement to service connection for nasal disability, to include deviated septum, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to nasal disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1965 to March 1969. In the August 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. In March 2021, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a February 2021 decision. In May 2021, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior February 20, 2021 decision. Therefore, the Board may consider the evidence of record at the time of the February 20, 2021 decision. 1. Entitlement to service connection for nasal disability, to include deviated septum, is remanded. Upon review of the evidence of record, the Board finds remand is warranted for additional medical opinions. The Veteran attended a VA examination in December 2020 for this claim. A review of the examination report reveals internal inconsistencies regarding whether the Veteran has a deviated septum. The examiner concluded, "No chronic diagnosis is made for Deviated septum. Objective exam is normal. Symptoms are subjective only." See February 2021 opinion report, page 2; see also February 2021 examination report, page 11 ("No confirmed diagnoses.") (emphasis added). However, the examiner also checked boxes on the examination report indicating that the Veteran has a deviated septum, and that it is traumatic. See February 2021 examination report, pages 3 and 7. Moreover, as noted by the examiner, a January 2021 x-ray revealed no "significant septal deviation". This raises the possibility there is a deviation, but that it was not "significant". Furthermore, January 2021 x-rays revealed the Veteran's nasal bone was consistent with a healing or healed fracture. See January 21, 2021 records, part of February 2021 examination report (nasal bones x-ray impression notes "healing" fracture; sinuses x-ray impression notes "healed" nasal bone fracture. This may be consistent with the Veteran's contention that he broke his nose in service. In light of the inconsistencies found in the reports, the Board finds the Agency of Original Jurisdiction committed a pre-decisional duty to assist error in not obtaining an addendum opinion. Therefore, remand is warranted to obtain additional medical opinions. Also, the Agency of Original Jurisdiction appeared to attempt to limit the examiner to an opinion on whether a deviated septum is related to rhinorrhea and pharyngitis noted in service. See February 2021 opinion report, page, 1, Section II. However, the Veteran is not expected to know his exact disability. Here, the Veteran believes he has residuals or a disability due to an alleged in-service nasal injury. Therefore, the Board has widened the scope of the claim and will seek broader opinions. The Veteran contends he broke his nose on a plane in service, during "a very rough landing" in which he smashed his face on the radio console. See September 1, 2020 statement in support of claim. He indicated he was in a combat zone, but did not specify if the injury occurred while the plane he was on was receiving enemy fire. On remand, the Veteran will have the opportunity to provide more details on his injury, and subsequent history, as such details may affect the adjudication of his claim. See 38 U.S.C. § 1154(b). Likewise, the Veteran will have the opportunity to address an argument made by his representative regarding his separation examination that does not indicate a nose injury. The Veteran's representative argued "it would not be surprising if the separation exam, which appears to have been conducted 'in country' . . . in February 1969 at a base that was the subject of almost nightly fire from rockets and mortars, was cursory at best." See September 2021 appellate brief (emphasis). It is not clear from this statement that the Veteran himself has alleged such a cursory examination. Finally, the Veteran's representative contends service records may support the Veteran's contention of a nose injury, due to the possibility the "very rough landing" resulted in damage to the aircraft, which would likely be documented in the unit records. Service records related to the alleged plane incident have not been obtained. Accordingly, on remand, service records will be sought. 2. Entitlement to service connection for sleep apnea, to include as secondary to nasal disability, is remanded. As sleep apnea may be a residual of the Veteran's alleged in-service nose injury, remand is warranted for the reasons above. Additionally, remand is warranted to obtain have private medical records added to the Veteran's claims file. The Veteran's VA medical records indicate the Veteran was seen by non-VA provider regarding his sleep apnea, before seeking additional help from VA. These VA treatment records indicate the Veteran was going to provide medical records from the private provider to VA, and at the very least provided a copy of the private sleep study to VA. See VA treatment records from December 12, 2016, January 27, 2017 and March 28, 2017 (sleep study received). However, the Veteran's claims filed does not contain this sleep study or any other private records related to the Veteran's sleep apnea. The evidence of record indicates private treatment records are in VA's custody. Therefore, VA has an increased obligation to obtain them and add them to the Veteran's claims file. See 38 C.F.R. § 3.159(c)(2). The matters are REMANDED for the following action: 1. Obtain the Veteran's complete VA treatment records, including private treatment records in VA's custody. See March 28, 2017 VA treatment record. 2. Ask the Veteran to complete a VA Form 21-4142 for private providers of treatment. Make two requests for the authorized records from, unless it is clear after the first request that a second request would be futile. 3. Attempt to corroborate the Veteran's in-service report of an in-service plane incident, including a very rough landing that may have resulted in damage. If more details are needed, including whether the Veteran plane was receiving fire at the time, contact the Veteran to request the information. In doing so, obtain relevant records from JSRRC and/or the Air Force Historical Research Agency. 4. Obtain addendum an addendum opinion from the December 2020 VA examiner, or other appropriate professional, regarding possible nasal disabilities. The examiner must review the claims file. 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 opinions below. The examiner is asked to provide a response to the following: Identify all current nasal and sinus disabilities. For each disability identified, is the disability at least as likely as not related to service, including the alleged nose injury that occurred on a plane in service. Provide a rationale to support the opinion(s). If the examiner determines an additional examination would be beneficial in providing the requested responses, schedule an examination. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gregory T. Shannon, 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.