07-32 047
07-32 047
| Board of Vet. App. | Sep 30, 2016Background
- Veteran served on active duty Apr 1959–Apr 1962; underwent in-service submucous resection (septectomy) in Aug 1959 for deviated septum after childhood nasal fracture.
- Entry exam (Apr 1959) noted no nose/sinus defect; separation exam (Feb 1962) noted no nasal defect.
- Post-service treatment includes ENT visits and a 2007 acute nose fracture; private ENT (Dr. D.M.) began treating in 2007 and diagnosed nasoseptal deformity with nasoseptal perforation as residuals of the in-service surgery.
- April 2007 VA examiner suggested the septal abnormality likely arose post-separation but said it was possible the in-service surgery contributed; the VA opinion was internally inconsistent.
- Board granted service connection for residuals of postoperative deviated nasal septum (diagnosed as nasoseptal deformity with perforation) based on the weight of evidence and Dr. D.M.’s opinion; the issue of service connection for deviated nasal septum itself was remanded for further development and a new VA ENT exam.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for residuals of postoperative deviated nasal septum (nasoseptal deformity with perforation) | Disability is residual of in‑service septectomy; treating surgeon opines causal link | RO/VA exam equivocal; suggested abnormality may have arisen after service | Granted — Board found competent, probative evidence (private surgeon opinion + service op report) supports nexus |
| Service connection for deviated nasal septum itself | Deviated septum is related to service or aggravated by in‑service surgery; veteran reports persistent obstruction after surgery | Service records and VA exam suggest septum may have pre‑existed service or arose later; VA opinion internally inconsistent | REMANDED — unclear medical questions; new VA ENT exam and records development ordered |
| Applicability of presumption of sound condition at entry | Veteran’s entry exam showed no defect, so presumption of soundness applies for postoperative residuals claim | VA noted some records suggest preexisting deviated septum but entry exam controls absent clear and unmistakable evidence otherwise | Applied for purpose of residuals claim — presumption of soundness applied; not overcome by CUE |
| Adequacy of prior medical opinions | Plaintiff relies on treating surgeon’s detailed, rationale opinion based on records and surgical findings | VA examiner’s opinion was internally inconsistent and lacked probative clarity | Board credited the private surgeon’s opinion over the VA examiner’s and found it more probative |
Key Cases Cited
- Tyrues v. Shinseki, 631 F.3d 1380 (Fed. Cir. 2011) (procedural standards for deciding claims when some issues can be adjudicated while others require remand)
- Tyrues v. Shinseki, 732 F.3d 1351 (Fed. Cir. 2013) (affirming aspects of prior decision)
- Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004) (elements required to establish service connection)
- McLendon v. Nicholson, 20 Vet. App. 79 (Vet. App. 2006) (VA must provide a medical examination when necessary to decide the claim)
- Kutscherousky v. West, 12 Vet. App. 369 (Vet. App. 1999) (claimant’s right to submit additional evidence following remand)