Citation Nr: 21012796 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 16-42 395 DATE: March 5, 2021 REMANDED Entitlement to service connection for a respiratory disorder, to include a nasal disability, is remanded. REASONS FOR REMAND The Veteran had active service from September 1963 to September 1967. In February 2019, the Board issued a decision denying service connection for a respiratory disorder, to include a nasal disability, finding that there was clear and unmistakable evidence both that the Veteran injured his nose prior to active service and that this preexisting condition was not aggravated during active service. Thereafter, the Veteran appealed the February 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In July 2020, the Court issued a Memorandum Decision setting aside the February 2019 Board decision and remanding the matter back to the Board for readjudication. The Board’s discussion below will address the deficiencies discussed within the July 2020 Memorandum Decision and address why further development is warranted. Entitlement to service connection for a respiratory disorder, to include a nasal disability is remanded. In the July 2020 Memorandum Decision, the Court discussed how the Veteran asserted that the Board erred in its February 2019 decision when it determined that the presumption of soundness had been rebutted. Moreover, the Court noted that VA agreed that the Board did not show by clear and unmistakable evidence that the Veteran had a nose deformity or respiratory disability that preexisted service, and conceded that the Board’s statement of reasons or bases was inadequate. The Court concluded that remand of the appeal was warranted for the Board to provide an adequate statement of reasons or bases for its determination that the presumption of soundness was rebutted. The Court further emphasized that it was remanding the matter so that the Board could properly adjudicate the claim in consideration of the evidence already developed and to support its determination that the presumption of soundness was rebutted by clear and unmistakable evidence with adequate reasons or bases. The Court noted that if the current record was inadequate for VA to meet its burden with respect to the presumption of soundness, it may not seek to supplement the record. In light of the above, and based upon a review of the record, the Board concedes that the evidence of record already developed is inadequate for VA to meet its burden with respect to the presumption of soundness. The Board is mindful that the Court cautioned that the Board may not seek to supplement the record “to meet [its] burden with respect to the presumption of soundness;” however, the Board reasonably interprets the Court’s order in that regard as a prohibition against developing further evidence to attempt to rebut the presumption of soundness. However, the Board finds that it would be unreasonable to interpret the Court’s order as a blanket prohibition against further development of the record, which would essentially undermine the Board’s ability to develop evidence in order to adequately fulfill its duty to assist. Therefore, for the reasons discussed below, the Board finds that remand is warranted for additional development in order to address the Veteran’s service connection claim on a service-incurrence basis. The record contains an August 2010 VA examination wherein a VA examiner concluded that the Veteran’s nasal airway obstruction complaints were most likely due to rhinitis and that it was less likely than not that the Veteran’s nasal airway obstruction was permanently worsened beyond natural progress while in the military. Notably, just as the February 2020 Memorandum Decision found that the August 2010 VA opinion did not utilize the correct statutory standard of “clear and unmistakable evidence” required to rebut the presumption of soundness, that opinion likewise is inadequate with respect to the correct legal standard for direct service connection, as the examiner opined whether the Veteran’s claimed condition was permanently worsened beyond natural progress during active service, rather than whether the claimed condition had an onset during active service or was otherwise related to active service. Therefore, based upon a review of the record, the Board finds that remand of this matter is warranted in order to obtain an adequate medical opinion as to whether the Veteran’s claimed condition had onset during active service or is otherwise related to active service. The matter is REMANDED for the following action: Refer the claims file to a qualified VA examiner for an expert medical opinion regarding the Veteran’s claim of entitlement to service connection for a respiratory disorder, to include a nasal disability. The claims file and should be made available to and reviewed by the examiner in conjunction with the opinion. If the examiner believes that an in-person examination is warranted, then schedule the Veteran for a full VA examination. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: • The Veteran had active duty from September 1963 to September 1967. • The Veteran is claiming that he has a respiratory disorder, to include a nasal disability, that had its onset during service. • A September 1963 Report of Medical Examination at service entrance shows the Veteran had a normal clinical evaluation of the nose. See VBMS entry with document type, “STR - Medical,” receipt date 06/23/2010, on page 5 (item 19). • A December 1964 clinical record shows the Veteran was being referred to plastic surgery. The referring examiner wrote: “Patient desires some tip surgery on nose. No airway problem. Had broken nose before he came in service.” See VBMS entry with document type, “STR - Medical,” receipt date 06/23/2010, on page 39. • In that same document, a January 1965 consultation report shows that the examiner wrote that the Veteran had a large bulbous tip deviated to the left, which “may be improved.” Pictures were taken (the pictures are not in the file). He was scheduled for surgery, which date appears to have been initially scheduled for April 1965 but changed to July 1965 and then changed to December 1965. See VBMS entry with document type, “STR - Medical,” receipt date 06/23/2010, on page 39. • A July 1965 record of the U.S. Naval Hospital in Portsmouth, Virginia documents that the Veteran was diagnosed with deformity of nose, which the examiner wrote was not due to his own misconduct, and did not exist prior to enlistment. The examiner documented that the Veteran reported that he was struck in the nose 3 years ago, which resulted in the present deformity of the large hump and difficulty with breathing. The examiner described the physical examination as being within normal limits “except for the deformed nose.” See VBMS entry with document type, “STR - Medical,” receipt date 06/23/2010, on page 31. • A December 1965 service treatment record shows the examiner wrote that the Veteran had entered the hospital because of an “unsightly nose.” The examiner added, “The patient sustained trauma to the nose five years prior to admission[,] which resulted in a fracture. The fracture was left untreated and deformity ensued.” The examiner also wrote that the Veteran complained of trouble breathing through his nose during the winter time. A physical examination was unremarkable “except that the patient had a large nose and the mid portion of the nose was deviated to the left.” Later that month, a nasoplasty was performed under local anesthesia, with an uneventful postoperative course, after which the Veteran was discharged to duty. See VBMS entry with document type, “STR - Medical,” receipt date 06/23/2010, on page 3. • A September 1967 Report of Medical Examination at service discharge shows the Veteran had a normal clinical evaluation of the nose. See VBMS entry with document type, “STR - Medical,” receipt date 06/23/2010, on page 15 (item 19). • A March 2010 private treatment record documents that the Veteran complained of nasal congestion that began “several years ago,” with a history of multiple nasal injuries and previous nasal surgery 40 years ago. Upon physical examination, his nasal cavity was normal, with a severe left septal deviation, the caudal septum was deviated to the left, moderate right septal deviation, and nasal passages that were 75 percent obstructed bilaterally. See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 05/03/2010. • In a May 2010 statement, the Veteran reported that he suffered nasal injuries before and during his tour of duty. He noted that after his in-service nasal surgery, he had to breathe through his mouth but was told by his Navy doctor that this would be temporary and that it would get better. He wrote that after service, he reported to a local doctor that the Navy doctor had used a chisel and hammer to chip at his nose bone, and the doctor said that he could not repair the Veteran’s nasal condition. The Veteran reported that he used hot water to clear his nasal passages and that he would avoid physically strenuous activity because his mouth and throat would become uncomfortably dry. See VBMS entry with document type, “Correspondence,” receipt date 05/03/2010. • An August 2010 VA examination report shows that the Veteran complained of trouble breathing through both sides of the nose and experienced bilateral nasal crusting with some bleeding since he had surgery while in the Navy. He denied any trouble with the nose or sinuses as a child and recalled that he was hit with a gun turret while in the military. The VA examiner diagnosed nasal deformity, nasal airway obstruction by history, mild septal deviation, and rhinitis. The examiner noted that there was evidence in the file that the Veteran had nasal airway obstruction prior to his military service, and since his nasal airway obstruction complaints improved with humidity and saline (as noted in December 1965) and therefore most likely due to rhinitis, it is less likely than not that the Veteran’s nasal airway obstruction was permanently worsened beyond natural progress while in the military. See VBMS entry with document type, “VA Examination,” receipt date 08/18/2010. • In an October 2010 statement, the Veteran wrote that his claimed conditions, including breathing difficulties, did not exist before active service. Rather, he stated that his breathing difficulties started after his nose surgery in the military hospital in Norfolk, Virginia, after which he had to breathe through his mouth. See VBMS entry with document type, “NOD,” receipt date 10/22/2010. • In a July 2011 statement, the Veteran reported that frequent bloody and blocked nasal passages and dry mouth were common occurrences that required him to inhale hot water through his nose in order to breathe better through the nose and minimize dry mouth. He again stated that this condition did not exist before active service, when he had nasal surgery. See VBMS entry with document type, “Correspondence,” receipt date 01/19/2011. • A December 2012 private treatment record documents that the Veteran complained of nasal congestion for years. He reported a history of nasal surgery many years ago in the Navy after nasal injury. See VBMS entry with document type, “Medical Treatment Record - Government Facility,” receipt date 09/17/2013, on page 1. • In an August 2013 statement (the statement is dated at the top as June 2013 but signed in August 2013), the Veteran wrote that he did not have obstructed nasal passages, dry mouth, and a throat condition before entering the U.S. Navy. Additionally, he reported that during service, while sitting on top of a step ladder awaiting repair parts, a gun turret was rotating, and, as he turned his head to see why everyone was looking to their left, the gun turret smacked him in the face, giving him a bloody nose. He stated that he did not think that the injury was severe enough to go to sick bay, and although the bleeding stopped, the pain and sensitivity to his nose did not. He noted that his nose changed in appearance and after several months, he realized that breathing through his nose was different, so he went to a Navy hospital, and the surgeon determined that he needed surgery to correct the condition. He stated that the surgeon took what looked to be like a small chisel and an odd-looking hammer and chipped away on the inside of the nose. He stated that the doctor told him that he would be able to breathe normally, but his difficulty breathing through the nose did not improve. See VBMS entry with document type, “Medical Treatment Record - Government Facility,” receipt date 09/17/2013, on page 3. • An August 2013 Private Disability Benefits Questionnaire (DBQ) completed by Ramesh Patel, M.D., documents the Veteran’s diagnoses of chronic sinusitis, deviated nasal septum (3/17/2010), and nasal deformity (3/17/2010). The Veteran reported that he was in the Navy and in approximately 1965, he was hit in the nose with a gun turret. The Veteran further reported that he had been suffering with these problems of his nose for more than 45 years. See VBMS entry with document type, “Medical Treatment Record - Government Facility,” receipt date 09/17/2013, on page 4. • The examiner is informed that the Board finds as fact that the Veteran sustained an injury prior to service that fractured his nose. The statements he made while in service in December 1964, July 1965, and December 1965 show affirmatively that he sustained an injury before he entered service, which he described as his nose being “broken” and a “fracture.” • While the Veteran has claimed he sustained another injury while in service, the Board does not find such statement credible, as he did not report a recent injury when seen in December 1964, July 1965, and December 1965 for his nose, which the Board believes would have been reported if a recent injury had occurred. Rather, he consistently reported that his nose was injured, broken, and/or fractured prior to service entrance. • As such, the examiner is informed that the Board finds that the credible evidence of record documents that the only in-service disease or injury of record is the Veteran’s December 1965 nasoplasty surgery. • The examiner’s review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. Following a review of the claims file, including the relevant evidence discussed above, the VA examiner is asked to render an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the December 1965 nasoplasty surgery that the Veteran underwent during service caused the claimed respiratory disorder, to include a nasal disability. Upon what facts and medical principles do you base the opinion? A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Chad Johnson, 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.