Citation Nr: 21067374 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-33 377 DATE: November 4, 2021 ORDER Entitlement to service connection for residuals of a nasal fracture, to include a deviated septum and chronic sinusitis, is granted. REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to residuals from a nasal fracture, is remanded. FINDING OF FACT The Veteran's residuals of a nasal fracture, to include a deviated septum and chronic sinusitis, are at least as likely as not incurred during service. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of a nasal fracture, to include a deviated septum and chronic sinusitis, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Army from November 1981 to March 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). This matter was previously before the Board August 2019 and January 2021, at which point it was remanded for development. Pursuant to the most recent remand, an addendum VA opinion was obtained in August 2021. While the Board finds that this opinion is inadequate, remand of the Veteran's service connection claim for residuals of a nasal fracture is not necessary in light of the grant of service connection. See Stegall v. West, 11 Vet. App. 268 (1998). However, for the reasons discussed below, remand is warranted for the Veteran's service connection claim of obstructive sleep apnea. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he or she served, his or her medical records, and all pertinent medical and lay evidence. See 38 C.F.R. § 3.303 (a); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau, 492 F.3d at 1377; and Buchanan, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). 1. Entitlement to service connection for residuals of a nasal fracture, to include a deviated septum and chronic sinusitis The Veteran has maintained throughout the course of his appeal that residual symptoms of his nasal fracture have been present since service. The Board agrees and finds that the elements of entitlement to service connection have been met. With respect to current disability, a December 2019 VA examiner concluded that the Veteran has a current diagnosis of chronic sinusitis and deviated septum. At this time, the examiner noted that the Veteran presented with active signs of chronic parasinusitis. The examiner elaborated that the Veteran had two non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the past 12 months. This examiner also noted the presence of a traumatic deviated nasal septum without complete obstruction. Consistent with this finding, VA treating records document care for sinusitis with nasal bleeding in September 2019. Additionally, a deviated septum was noted on x-ray in December 2014 and on physical examination in January and February 2016. X-rays from December 2019 also revealed the presence of a gentle levoconvex curvature of the nasal septum with a degree of deviation that was noted to be commonly constitutional. Although an October 2020 VA examiner concluded that the Veteran does not have a deviated septum that causes deformity, a January 2021 VA examiner clarified that a minor deviated septum is probably present on most examinations. From this evidence, the Board finds that the first element of service connection, a current disability, has been satisfied. With respect to in-service incurrence, service treatment records (STRs) reveal that the Veteran was treated for a possible broken nose in August 1984. Additionally, the Veteran's January 1985 separation examination noted a history of an old nasal fracture that healed without complications. Despite this finding, the Veteran reported during the December 2019 VA examination that he began to have issues clearing the nose and sinus problems, after the nose was manually realigned in 1985. The Board notes that the Veteran is competent to report symptoms and observable events within the realm of his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470-471 (1994); Jandreau, 492 F.3d at 1377. Furthermore, the Board finds no reason to doubt the credibility of these statements, as they are consistent with those he made during the course of treatment. For example, the Veteran reported during a VA treatment visit in September 2017 that he feels his nose never healed right since injuring it during active duty. He also reported during a VA treatment visit in May 2021 that he has had sinus issues since he injured his nose during service. Accordingly, the Board finds that the Veteran's competent and credible lay statements sufficiently establish the in-service incurrence element of this claim. The remaining question is whether there is a nexus between the Veteran's in-service incurrence and his current nasal disability. The record contains numerous VA opinions addressing this question. In December 2014, a VA examiner offered a positive nexus opinion, noting that that the Veteran's nose was fractured during service when he was punched in the face. The examiner noted the nasal fracture diagnosis from 1983, but he did not identify any residual symptoms from this fracture. Specifically, the examiner concluded that the Veteran does not have sinusitis, rhinitis, deviated septum, a larynx or pharynx disorder, tumor, or neoplasm. The examiner further concluded that x-rays performed in 2014 were negative. Contrary to this finding, x-rays from private treatment records in December 2014 show that the Veteran had a minimally deviated septum that was likely chronic. Additionally, a December 2019 VA examiner provided current diagnoses of chronic sinusitis, deviated septum, and nasal fracture, all with an onset of 1983. The examiner noted that the Veteran reported that he fractured his nose around 1983 and had a manual realignment performed afterward. The examiner further noted that the Veteran reported problems clearing the nose and sinus problems with frequent sinus infections since the realignment. Based on this evidence, the Board finds that the December 2014 VA opinion is inadequate and has no probative value. The December 2019 VA examiner also offered a positive nexus opinion. The examiner concluded that the Veteran's claimed diagnosis residuals from a nasal fracture is at least as likely as not incurred in or caused by the Veteran's nose injury during service. However, his rationale supports the opposite conclusion. Specifically, he noted that there is no evidence in the STRs that the Veteran was treated for a broken nose in service and current x-rays of the sinuses and nasal bones show normal sinuses and no evidence of a fracture or significant deviated septum. Due to internal inconsistency, this opinion is inadequate. However, the examiner's conclusion that the Veteran's current diagnoses of chronic sinusitis, deviated septum, and nasal fracture all had an onset of 1983 has some probative value, as it is consistent with the Veteran's reports. An addendum opinion was sought and offered in October 2020. At this time, a VA examiner offered a negative nexus opinion. The examiner concluded that it is less likely as not that the Veteran has a diagnosis of deviated septum or other residuals from a nasal fracture caused by an in-service injury, event, or disease. In support of this conclusion, the examiner noted that STRs document treatment in August 1984 for the nose deviated to the right and manipulation into proper alignment. The examiner further noted that the January 1985 separation examination documented a history of an old nose fracture with no residual complications or deformity. Additionally, the examiner noted that x-rays performed in December 2019 showed no significant posttraumatic abnormality, but only a gentle levoconvex curvature of the nasal septum with a degree of deviation that is commonly constitutional. From this evidence, the examiner concluded that the Veteran does not have a deviated septum causing deformity. In reaching this conclusion, the examiner failed to address the Veteran's lay statements that he has had residual symptoms from the nasal fracture since service. Because the opinion is based on an inaccurate factual premise, it is inadequate and has no probative value. See Reonal v. Brown, 5 Vet. App. 548 (1993). Another addendum opinion was offered in August 2021. At this time, a VA examiner provided a negative nexus opinion, concluding that there is no evidence that the nasal fracture reduced during service is causing any of the Veteran's current problems. The examiner reasoned that the fracture sustained during service was mild and there was no treatment for residual symptoms after a reduction was performed. The examiner also concluded that a minor deviated septum is probably present on most examinations, but he concluded that a mild deviated septum does not cause sinusitis. This examiner also failed to address the Veteran's lay statements that he has had residual symptoms from the nasal fracture since service. Because the opinion is based on an inaccurate factual premise, it is inadequate and has no probative value. See Reonal v. Brown, 5 Vet. App. 548 (1993). Given that there is no adequate negative opinion, the competent and credible statements made by the Veteran are highly probative in establishing a nexus. See 38 C.F.R. § 3.303(a) (service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence); see also Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). Moreover, December 2019 VA examiner's conclusion that the Veteran's current diagnoses of chronic sinusitis, deviated septum, and nasal fracture all had an onset of 1983 has some probative value with respect to establishing a nexus. Accordingly, the Board finds that the most probative evidence of establishes a nexus between the service and his current diagnoses of chronic sinusitis and deviated septum. In sum, the weight of the evidence supports finding that residuals of a nasal fracture, to include chronic sinusitis and deviated septum, was incurred during the Veteran's active service, and service connection is granted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 3.303(a), (d). REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to residuals from a nasal fracture is remanded. The Veteran has been diagnosed with obstructive sleep apnea and maintains that this condition is directly related to service, or in the alternative, is secondary to the residual symptoms of his in-service nasal fracture. There are numerous VA opinions addressing this issue. In December 2019, a VA examiner concluded that the Veteran's current obstructive sleep apnea is less likely than not incurred in or caused by service. The examiner noted that the Veteran was treated in the hospital for excessive daytime somnolence and narcolepsy during service. He elaborated that the Veteran reported falling asleep while eating, standing up, operating equipment, and during sex. He noted that the Veteran also reported that he sleeps soundly but does not feel refreshed and his barracks mates reported snoring but not that the Veteran stops breathing while sleeping. The examiner concluded that these complaints during service and the Veteran's current obstructive sleep apnea are two different diagnoses and are not related. The examiner further concluded that the Veteran's obstructive sleep apnea is less likely than not secondary to the residuals of his nasal fracture. In support of this conclusion, the examiner noted that the Veteran's separation examination indicated that the nasal fracture healed without complication. The examiner also noted that a recent x-ray of the nose was normal without any fracture. This opinion is based on a finding that the Veteran has not had any residual symptoms from his nose fracture. However, as determined herein, the Board has concluded that the Veteran has indeed experiences residuals from the nasal fracture, to include sinusitis and a deviated septum, which are directly related to service. VA examiner in October 2020 and January 2021 also offered negative nexus opinions as to service connection on a direct basis. However, neither examiner offered an opinion as to whether the Veteran's obstructive sleep apnea was caused by or aggravated by his service-connected residuals of a nasal fracture. Accordingly, remand is warranted to obtain an addendum opinion addressing this question. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file any outstanding VA treatment records. 2. Obtain an addendum opinion from an appropriate VA examination to assess the nature and etiology of the Veteran's obstructive sleep apnea. The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. The examiner should then address the following. A thorough rationale is required for all conclusions: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's obstructive sleep apnea was caused by the Veteran's service-connected residuals from a nasal fracture, to include deviated septum and chronic sinusitis. (b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea was aggravated by the Veteran's service-connected residuals from a nasal fracture, to include deviated septum and chronic sinusitis. 3. After ensuring that the opinions comply with the terms of this remand, the AOJ should re-adjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Beech, 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.