Citation Nr: 21074883 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-49 423 DATE: December 16, 2021 ORDER Entitlement to a compensable initial rating for a service-connected deviated septum is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for degenerative arthritis of the lumbar spine (claimed as arthritis of the back) is remanded. FINDING OF FACT The Veteran's service-connected deviated septum is not manifested by at least 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side. CONCLUSION OF LAW The criteria for a compensable initial rating for deviated septum have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.97, Diagnostic Code 6502. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1984 to February 1988. This matter comes to the Board of Veterans' Appeals (Board) from April 2016 and October 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. Entitlement to a compensable initial rating for a service-connected deviated septum. The Veteran contends that he is entitled to a higher rating because of more severe symptoms of his deviated septum. The Veteran's deviated septum is rated pursuant to 38 C.F.R. § 4.114, Diagnostic Code (DC) 6502, deviated septum. Under DC 6502 a rating of 10 percent is warranted for traumatic deviation of the nasal septum with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. A 10 percent rating is the highest rating under diagnostic code 6502. The Veteran is currently in receipt of a noncompensable rating under DC 6502 for a nasal fracture. Notwithstanding the Veteran's contentions, the preponderance of the probative evidence of record does not establish entitlement to a compensable rating for residuals of nasal fracture. The Veteran underwent a VA examination for deviated septum in August 2016. The examination clarifies that the deviated septum manifests without at least 50 percent obstruction of the nasal passage on both sides, complete obstruction on either side, or any other signs, symptoms, or scars. The examiner concluded that there was no functional impact associated with the Veteran's deviated septum. The Veteran's treatment records include references to his deviated septum, but only in the context of the prior surgery to correct the issue. The Board has considered the Veteran's lay statements regarding his deviated septum, but there is no indication in any statement that the service-connected disability is symptomatic to the level required for a compensable initial rating. Ultimately, the preponderance of the evidence of record does not establish entitlement to a compensable rating for a deviated septum. A compensable rating under diagnostic code 6502 requires evidence of a traumatic deviated septum with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. As there is no evidence documenting these symptoms, or anything approximating such symptoms, entitlement to a compensable rating for deviated septum is denied. REASONS FOR REMAND 1. Service connection for obstructive sleep apnea is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for sleep apnea because no VA examiner has opined whether the condition is caused or aggravated by the Veteran's service-connected deviated septum. The Veteran has clarified, through correspondence, that it is his contention that his sleep apnea is secondary to his service-connected deviated septum. Therefore, an opinion is necessary to address this theory. 2. Service connection for right hip condition is remanded. The Veteran underwent a VA hip examination in March 2016, but the accompanying medical opinion is inadequate. The examiner concluded that the Veteran had no diagnosed right hip disability; however, the examiner specifically noted pain during range of motion testing that resulted in functional loss. Pain alone may constitute disability, even without an identifiable underlying pathology. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Thus, a new VA opinion is warranted to address this issue. 3. Service connection for degenerative arthritis of the lumbar spine (claimed as arthritis of the back) is remanded. The Veteran underwent a VA spine examination in April 2016, but the accompanying medical opinion is inadequate. The examiner opined that the Veteran's current lumbar spine disability is less likely than not related to active duty service. As rationale in support of this opinion the examiner appears to describe the history of the Veteran's back symptoms. The examiner notes the "chronic back pain" documented on the exit physical and treatment during service, a 2002 "diskectomy," 2015 treatment for "upper back pain," and current imaging "suggestive of degenerative arthritis in lower back." There is no attempt to address this evidence in the context of the Veteran's claim; or, explain why the Veteran's current lumbar spine condition is not related to the back treatment during service or "chronic back pain" noted at separation. Thus, a new VA opinion is warranted. The matters are REMANDED for the following action: 1. The AOJ must request that the Veteran be scheduled for appropriate VA examinations to determine the nature and etiology of his sleep apnea, claimed right hip disability, and low back disability. All necessary tests must be completed. After a review of the file, the VA clinician is asked to address the following: a. Identify all low back disabilities present since February 2016. b. For each disability identified in part (a), provide an opinion addressing whether such is at least as likely as not proximately due to or the result of any incident of service. *In addressing part (b), the examiner is encouraged to discuss the probability that the Veteran's in-service and post-service complaints of low back pain represent manifestations of the same disability, even if such was diagnosed following the Veteran's service separation. c. Identify all right hip disabilities present since February 2016. d. For each disability identified in part (c), provide an opinion addressing whether such is at least as likely as not proximately due to or the result of any incident of service. e. If no right hip disability is identified in part (c), the examiner must state whether the Veteran's right hip pain results in functional impairment of earning capacity *In addressing part (e), the examiner is asked to discuss the impact on the Veteran's right hip pain on his ability to stand, sit, walk, run, bend, stoop, and maintain balance. f. If the Veteran's right hip pain is found to result in functional impairment of earning capacity, the examiner must opine whether such is at least as likely as not proximately due to or the result of any incident of service. g. Provide an opinion addressing whether the Veteran's sleep apnea caused by his service-connected deviated septum and/or residuals of such? h. Provide an opinion addressing whether Is the Veteran's sleep apnea aggravated by his service-connected deviated septum and/or residuals of such? Each opinion rendered must be accompanied by a complete rational citing to evidence within the file, to include the Veteran's treatment records and lay statements. If any requested opinion cannot be provided with resort to mere speculation, the reasons for this conclusion must be fully discussed. 2. Thereafter, the AOJ must confirm that the VA medical opinion provided comports with this remand. If any opinion is inadequate, corrective measures must be taken. 3. Thereafter, the AOJ must readjudicate the Veteran's appealed issues in light of the totality of evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his representative with a copy of the readjudication and afford them an appropriate period to respond. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. McLeod 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.