Citation Nr: 21072952 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-01 335 DATE: December 7, 2021 REMANDED Entitlement to service connection for a deviated nasal septum is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1995 to August 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in November 2019. A transcript is of record. This matter was remanded by the Board in May 2020 for further development. 1. Entitlement to service connection for a deviated nasal septum is remanded. Unfortunately, another remand is warranted in this case. The Board sincerely regrets this delay, but further development is necessary in order to adequately adjudicate the Veteran's claims. In this regard, the Board notes that the Veteran was provided with a Supplemental Statement of the Case (SSOC) in February 2021. Since that time, additional records pertinent to his claims have been associated with his file, most recently VA medical records which relate to his claimed disabilities. However, he has not been provided with an updated SSOC. This must be accomplished on remand. See 38 C.F.R. § 19.31. The Veteran contends that he developed a deviated nasal septum as a result of an in-service boxing injury. See October 2015 Notice of Disagreement. Pursuant to the May 2020 Board remand, a medical opinion was obtained in December 2020, where the examiner found that the Veteran's deviated nasal septum was not related to service. The examiner based his negative opinion on the fact that there was no documentation in the Veteran's medical records that support an in-service diagnosis or treatment for traumatic deviated septum in service. The examiner went on to state that the Veteran's private treatment records show a diagnosis of deviated nasal septum in 2014, 19 years after discharge from service. The Board finds the December 2020 VA medical opinion inadequate, as the mere absence of medical records are not fatal to a service connection claim. Additionally, as the Board noted in its May 2020 remand, an October 2013 private medical record showed that the Veteran had mucosal edema and septal deviation; the December 2020 medical opinion incorrectly reported December 2014 as the first record of a deviated nasal septum. Indeed, a June 2021 VA medical treatment record notes that "At age 18, he had a boxing injury in the military involving facial/head trauma and injury to the nose resulting in a deviated septum." Additionally, the Veteran testified that he did not have medical insurance after service, therefore it is reasonable that medical records regarding his nasal disability did not exist immediately after service. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Finally, the Veteran asserted that the December 2020 VA medical opinion did not address all of the evidence of record and requested an examination. The Board notes that the Veteran has provided competent lay statements regarding his in-service injury and finds that an in-person examination would afford the Veteran an opportunity to describe to a trained medical professional his in-service injury, as well as provide details regarding any continuous and chronic symptoms following the in-service injury. Accordingly, a medical examination is warranted. 2. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran asserts that his obstructive sleep apnea is related to his service-connected disabilities, to include his service-connected posttraumatic stress disorder (PTSD) and headaches, both residuals of a traumatic brain injury, respectively. See October 2021 Appellate Brief. Additionally, he asserts that his obstructive sleep apnea is secondary to his claimed deviated nasal septum, discussed above. An October 2015 private medical treatment record notes that the Veteran has obstructive sleep apnea, and that his PTSD and possible post-concussion syndrome are likely contributing to his daytime sleepiness. The Veteran has submitted medical articles which link sleep apnea to PTSD. See March 2021 Correspondence On remand, the Veteran should be afforded a VA examination to determine whether his diagnosed obstructive sleep apnea is secondary to his service-connected PTSD, service-connected headaches, and/or, if service-connection is granted, to his claimed deviated nasal septum. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (reflecting that VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of his deviated nasal septum. The entire claims file and a copy of this REMAND must be made available to the examiner in conjunction with the examination. The examiner must opine as to whether it is at least as likely as not (50% or greater probability) that the Veteran's deviated nasal septum is traumatic in origin or otherwise had its onset during service or is related to any incident of service, to include his in-service boxing injury. The examiner must consider all evidence of record. The examiner should specifically discuss the Veteran's lay statements, as well as the June 2021 VA medical treatment record which notes that "At age 18, he had a boxing injury in the military involving facial/head trauma and injury to the nose resulting in a deviated septum." The examiner is advised that the mere absence of a recorded deviated nasal septum injury in the Veteran's service treatment records is not an adequate basis on which to find a negative nexus. The opinion must account for the Veteran's relevant medical history and be supported by a complete explanation. 2. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of his obstructive sleep apnea. The entire claims file and a copy of this REMAND must be made available to the examiner in conjunction with the examination. The examiner must opine as to whether it is at least as likely as not (50% or greater probability) that the Veteran's obstructive sleep apnea had its onset during service or is related to any incident of service, to include any injuries related to his in-service boxing injury. The examiner should discuss the undated private Disability Benefits Questionnaire, received on March 16, 2021, written by Dr. H. Yue, which states that the Veteran "developed snoring and unrefreshing sleep after boxing accident while active duty progressive symptoms over time." The examiner must opine as to whether it is at least as likely as not (50% or greater probability) that the Veteran's obstructive sleep apnea was either (i) caused by, or (ii) aggravated by, his service-connected PTSD, to include residuals of a traumatic brain injury and/or service-connected headaches associated with PTSD to include residuals of a traumatic brain injury. The examiner must specifically discuss the evidence of record, including the October 2015 private medical treatment record which notes that he has obstructive sleep apnea, and that his PTSD and possible post-concussion syndrome are likely contributing to his daytime sleepiness. The examiner should also discuss the numerous medical articles submitted by the Veteran which link sleep apnea to PTSD. See March 2021 Correspondence. If the Veteran's claimed deviated nasal septum is found to be related to service, the examiner must opine as to whether it is at least as likely as not (50% or greater probability) that the Veteran's obstructive sleep apnea was either (i) caused by, or (ii) aggravated by, his deviated nasal septum. The opinions must account for the Veteran's relevant medical history and be supported by a complete explanation. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Mohammad 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.