Citation Nr: 21010511 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-08 857A DATE: February 25, 2021 ISSUES 1. Entitlement to service connection for a deviated nasal septum (claimed as nasal problems). 2. Entitlement to service connection for a sinus disorder. REMANDED Entitlement to service connection for a deviated nasal septum (claimed as nasal problems) is remanded. Entitlement to service connection for a sinus disorder is remanded. REASONS FOR REMAND The Veteran served in the Army from May 1968 to January 1970. This matter is before the Board of Veteran’s Appeals (Board) on appeal from October 2009 and March 2013 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the Veteran’s claim for entitlement to service connection for a deviated nasal septum was originally denied in August 1970, while the sinus disorder claim was originally denied in September 2002. Both of those claims were not immediately appealed and became final. The Veteran then filed to reopen both of those previously denied claims. In a March 2013 rating decision, the RO reopened the claims, yet continued to deny each of them. The Veteran filed a Notice of Disagreement (NOD) in April 2013, and following the issuance of a statement of the case (SOC), the Veteran filed a VA Form 9 in March 2015, appealing both claims to the Board. In that VA Form 9, the Veteran requested a hearing. The Veteran’s claims were eventually certified to the Board. The Veteran then appeared before the undersigned Veterans Law Judge in a Travel Board hearing in August 2018 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran’s claims file. The Veteran’s claims were then before the Board, and in a March 2019 Decision, the Board determined that new and material evidence had been received to reopen the previously denied claims of entitlement to service connection for a deviated nasal septum, and service connection for a sinus disorder. 38 C.F.R. § 3.156(a), see Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), see further Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Following reopening of both claims, the Board remanded each claim for further development and adjudication. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Having said that, the Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. Entitlement to service connection for a deviated nasal septum (claimed as nasal problems), and service connection for a sinus disorder are remanded. The Veteran is claiming entitlement to service connection for a deviated nasal septum, as well as entitlement to service connection for sinus disorder. Specifically, the Veteran is claiming that his nasal condition pre-existed service but was aggravated by that military service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, 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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Board is reminded that it was determined in March 2019 that the Veteran is is a combat Veteran for purposes of 38 U.S.C. § 1154 (b). The Veteran testified at his Travel Board Hearing in August 2018, that during nasal surgery meant to reduce the Veterans snoring, the Army doctor “accidentally cut a nerve in [his] nose.” The Veteran also claimed that he had a football injury that pre-dated service, and that the pre-service injury was aggravated by the in-service surgery accident, which is why he still has those conditions today. The Veteran also contends that that aggravation to his pre-service injury is responsible for his current sinus disorder. The Veteran is competent and credible to report as to the existence of this pre-service injury. 38 U.S.C. § 1154(a). As a rule, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. §§ 1111; 38 C.F.R. § 3.304 (b). This is known as the presumption of soundness. Assuming the presumption of soundness has attached, the burden then shifts to the VA to rebut the presumption of soundness. To rebut the presumption of soundness, the VA must show that (1) the condition clearly and unmistakably existed prior to service; and (2) the condition clearly and unmistakably was not aggravated during service. Wagner v. Principi, 370 F.3d 1089, 1092 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that such increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Clear and unmistakable (obvious, manifest, and undebatable) evidence is required to rebut the presumption of aggravation. 38 C.F.R. § 3.306 (b). The evidence must show a lasting worsening of the condition, meaning an increase in severity that existed at the time of separation from service and still exists currently. Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). As noted in March 2019, the Veteran’s entrance examination is silent for any complaint of a nasal condition, and as such, the presumption of soundness has attached. The burden has therefore shifted to VA to rebut the presumption of soundness. As further noted in the March 2019 Board Decision, a VA examination from January 2015 was deemed inadequate, as it did not conduct a finding as to whether the Veteran’s condition had clearly and unmistakably existed prior to service. That examiner also relied solely on the Veteran’s separation exam, which showed no disability. Under 38 U.S.C. § 1154 (b), since the Veteran is a veteran of combat, he is accorded certain benefits, including the reporting of medical problems while in service. As a result, the Veteran’s claim was remanded for a VA examination, whereby the examiner was to opine whether or not (1) the condition clearly and unmistakably existed prior to service; and (2) the condition clearly and unmistakably was not aggravated during service. Wagner v. Principi, 370 F.3d 1089, 1092 (Fed. Cir. 2004) That VA examination occurred in December 2019. The Veteran was seen in person, and his claims file was reviewed. The examiner noted the lay statement from the Veteran, that “he fractured his nose which resulted in deviated nasal septum” in January 1967. Three opinions were provided. As it relates to the Veteran’s deviated nasal septum, the examiner opined that the deviated septum clearly and unmistakably existed prior to service, but that it was clearly and unmistakably not aggravated beyond its natural progression. They continued that the Veteran had clear and unmistakable evidence of the preexisting deviated septum. There is evidence to indicate the Veteran continued to suffer from the disorder during service, which is typical of the condition. However, the progression is not beyond normal progression for this disorder. No evidence of permanent aggravation beyond normal progression identified. As it relates to the Veteran’s sinus disorder (allergic rhinitis), the examiner opined that the allergic rhinitis clearly and unmistakably existed prior to service, but that it was clearly and unmistakably not aggravated beyond its natural progression. The examiner noted that the allergic rhinitis was diagnosed in January 2014, while the “nasal obstruction” occurred during service in May 1969. They then wrote that The diagnosis of allergic rhinitis is a separate unrelated condition. A nexus between the in-service nasal obstruction condition and his current allergic rhinitis cannot be established due to the time interval between the in-service condition and the current condition. The examiner then provided a third opinion, that stated that the fractured nose, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression by the in-service injury. The following opinion was provided: Veteran reported fractured nose in [January 1967] on his entrance exam. Records dated [May 29, 1969] showed patient was treated for nasal obstruction with a submucosal resection with complete resolution and no residuals. As such, the examiner opined that the Veteran’s deviated nasal septum and his sinus disorder (allergic rhinitis) both clearly and unmistakably pre-existed service, however neither was aggravated by the Veteran’s in-service nasal obstruction surgery. The examiner also noted a separate diagnosis of “fractured nose,” and then wrote that this was aggravated beyond its natural progression by the in-service surgery. Importantly, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). Without making a determination as to the adequacy of the December 2019 VA examiner’s report, the Board finds that more clarity is needed before the Veteran’s claims of entitlement to service connection can be adjudicated. The opinions provided are internally inconsistent, as it is unclear how the pre-existing fractured nose is different than the pre-existing deviated nasal septum. These diagnoses must be clarified. If the Board were to assume that the deviated nasal septum is the same disorder from the football injury whereby the Veteran fractured his nose, then the examiner provided opinions indicating that this pre-existing injury both was and was not aggravated by the in-service injury. No further explanation was provided. Furthermore, the Board seeks clarity on the sinus disorder/allergic rhinitis. The examiner indicated that the allergic rhinitis pre-existed the Veteran’s service, but also noted that the diagnosis came in January 2014, over four decades following the Veteran’s separation from service. To be sure, the Veteran has not argued that his allergic rhinitis pre-existed his service, but that the deviated nasal septum (the fractured nose) pre-existed service, which was then aggravated by his in-service nasal surgery, and then that aggravated disability caused his current sinus disorder of allergic rhinitis. Because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The RO is to return the Veteran’s claims file to the same examiner who provided the December 2019 report for an addendum opinion, which clarifies the discrepancies identified above. The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any further private or VA medical records identified and authorized for release by the Veteran. 2. Forward the Veteran’s claims file and a copy of this remand to the VA examiner who conducted the December 2019 VA examination for an addendum opinion in regard to his claims of entitlement to service connection for the nasal conditions, to include his deviated nasal septum and his sinus disorder. The claims file should be made available for the clinician to review, and the report should reflect that such review was accomplished. The clinician should consider the entire claims file. The examiner is asked to provide an addendum opinion which addresses the following: (a.) Clarify the Veteran’s diagnoses, including, but not limited to the deviated nasal septum, the sinus disorder (allergic rhinitis), and/or any other identified nasal disability. The examiner is asked to further clarify whether the “fractured nose” diagnosis, as identified in the December 2019 VA examination, is separate and distinct from the deviated nasal septum. The examiner is also reminded that the Veteran has not argued that the sinus disorder (allergic rhinitis) pre-existed service, but that it has been aggravated by the pre-existing nasal fracture/deviated nasal septum. Following that: (b.) Opine as to whether it is clear and unmistakable (obvious, manifest, and undebatable) that the Veteran had fractured his nose (and/or deviated his nasal septum), which pre-existed active service. Please provide a complete explanation for the opinion. (c.) If so, the examiner must state whether it is clear and unmistakable (obvious, manifest, and undebatable) that a pre-existing nasal disorder (to include residuals of a deviated nasal septum) WAS NOT aggravated (i.e., permanently worsened) during service; or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in severity was due to the natural progress of the disorder. Any opinion should include a complete rationale. In this regard, the examiner is asked to pay special attention to the Veterans lay testimony, which claims that he suffered a pre-service football injury, which, coupled with the in-service surgery, now causes and/or aggravates both the deviated nasal septum and the nasal disorder (allergic rhinitis). The examiner is reminded that the Veteran has provided lay statements to this, and that the broken nose is therefore indicated within the record. The examiner is also reminded of the provisions of 38 U.S.C. § 1154 (b) and that the Veteran is a Vietnam combat Veteran. The examiner should properly address the Veteran’s lay contentions with respect to his deviated nasal septum and sinus disorder, to include his pre-service injury and his in-service surgery. A detailed rationale supporting the examiner’s opinion should be provided. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). 3. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his Representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.