Citation Nr: 22011941 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 19-36 331 DATE: March 2, 2022 ORDER The request to reopen the finally adjudicated claim for service connection of septoplasty and residuals is granted. REMANDED Entitlement to service connection for residuals of septoplasty is remanded. FINDING OF FACT 1. Rating decisions in October 2013 and April 2015 denied service connection for septoplasty. The Veteran did not appeal either decision. 2. New and material evidence received since the April 2015 decision raises a reasonable possibility of substantiating the issues, and therefore, is sufficient to reopen the claim. CONCLUSION OF LAW The criteria to reopen the finally adjudicated claim for service connection of septoplasty and residuals are met. 38 U.S.C. §§ 5103, 5108; 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES The Veteran served active duty in the United States Army from April 1995 to April 1999, April to May 2007, June 2009 to July 2010, and March 2015 to March 2016. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a July 2018 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). As an initial matter, a statement of the case was issued in October 2019 under the legacy system of appeals, and the Veteran filed a November 2019 request for Higher-Level Review. This could be an attempt to opt in to the modernized review system under the Appeals Modernization Act (AMA); however, during his June 2021 hearing before the Board, the Veteran expressed his desire to continue his appeal in the legacy system of review. A copy of the transcript of that hearing has been associated with the claims folder. New and Material Evidence The Veteran's December 2012 claim for service connection was denied in October 2013 and April 2015 rating decisions. The Veteran did not file a timely Notice of Disagreement within one year from the date of decision notice, therefore, the last adjudication of the issue became final. Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). Evidence received since the last final denial in April 2015 includes private treatment notes, VA examinations, and Veteran lay statements. These records were not part of the record at the time of the final adjudication, and are therefore, new evidence. The records are also material to the issue of service connection. As the claim was previously denied for lack of diagnosis, the VA examinations relate to that unestablished element requiring a current diagnosis. Of importance are the surgical notes related to the Veteran's septoplasty that were not previously before adjudicators. Those records contain additional evidence concerning the nature and reasons prompting the Veteran's nasal surgery, which raises the reasonable possibility of substantiating the claim the septoplasty is related to his military service. As such, the Board finds the new and material evidence has been received since the April 2015 decision. Accordingly, the request to reopen the finally adjudicated claim is granted. REMAND 1. Entitlement to service connection for residuals of septoplasty is remanded. The Veteran contends he is entitled to service connection for a 2010 septoplasty. He testified he began to experience shortness of breath and breathing problems while he was stationed in Iraq. He reports a medic gave him over-the-counter medicine believing dust, heat, sand, or irritants from burn pits may have caused the symptoms. He continued to use decongestants and nasal sprays with no relief. The Veteran sought treatment when he returned from deployment due to difficulty breathing in each nostril. Following private examination, significantly enlarged inferior turbinates were noted as well as a slight deviated septum to the left. Surgery was recommended and in August 2010 the Veteran underwent a septorhinoplasty wherein a portion of rib cartilage was used to repair his septum. He testified that, while consultation notes indicate some consideration of the shape of his nose, the surgery was not cosmetic in nature and was not performed to correct congenital deformities. The Veteran was provided VA examinations in February and June 2018; however, the examinations are not sufficient for the Board to adjudicate the claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The February 2018 examiner provided a nexus opinion as to the Veteran's difficulty breathing in relation to his allergic rhinitis and the issue of incurrence of allergies in-service. The examiner noted the absence of nasal scar but indicated a right nostril polyp was present. While the examiner opined as to the genetic nature of the Veteran's rhinitis, an opinion regarding the Veteran's contention of environmental irritants while serving in Iraq was not addressed. Similarly, the June 2018 VA examiner conducted an in-person examination but did not provide a nexus opinion. The examiner noted a scar of the chest in relation to the septoplasty and a right rib bone graft. She acknowledged August 2010 surgical notes indicating nasal obstruction and deformity but did not opine as to nature and etiology prompting the surgery nor respond to the Veteran's contentions regarding environmental irritants. The Veteran's military personnel record indicates his release from active duty in July 2010. He reports the onset of his difficulty breathing while in Iraq with symptoms of shortness of breath while running. He testified that he experienced at least three sandstorms and daily exposure to dust in the dry, desert environment, in addition to close proximity to burn pits and other irritants. Based on the above, the Board does not have sufficient medical evidence to adjudicate the claim as the Veteran's contention of in-service onset and environmental irritants has not been addressed. Further, clarification is needed regarding the Veteran's condition that prompted the nasal surgery. Medical records indicate the Veteran's surgery corrected a deviated septum or other physical condition of the nose. The condition has been described as non-traumatic deviated nasal septum, traumatic deviated septum, chronic nasal obstruction, valve collapse of the nose, and nasal deformity. The Veteran reported he was unaware of any traumatic injury of the nose or whether he may have injured it during his military trainings. Therefore, it is not clear whether the condition necessitating the septoplasty is due to an in-service injury or otherwise related to the Veteran's military experience. Accordingly, the Board finds a new opinion is required in order to adjudicate the claim. Clarification of the Veteran's condition and an opinion as to its nature and etiology, with specific attention to the Veteran's contention of environmental irritants, should be obtained following remand. The matters are REMANDED for the following action: 1. Obtain any outstanding VA or relevant private treatment records and associate them with the file. 2. Obtain an addendum opinion as to the nature and etiology of the Veteran's nasal condition. If an in-person examination of the Veteran is necessary, such should be arranged. Following review of all pertinent records associated with the claims file, the examiner is asked to provide the following: 3. A detailed clarification regarding the Veteran's nasal condition prompting his August 2010 septoplasty, with specific attention to a noted deviated septum. For any nasal condition observed, an opinion as to whether is it at least as likely as not (50 percent probability or more) the condition had its onset in service or is otherwise related to the Veteran's active-duty military service. The Veteran's contention of environmental irritants as the cause of an in-service onset must be considered and weighed in making the determination as to whether a nexus exists between the current disorder and service. The Board notes that a lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding, particularly as the period of duty at issue occurred during foreign service. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.N. Chapman 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.