Citation Nr: 1315043 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 06-21 255 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a sinus condition, to include sinusitis. REPRESENTATION Appellant represented by: Patrick J. Kenny, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran had honorable active service from September 29, 1975 to December 17, 1983. By a December 2004 administrative decision, VA determined that the Veteran's discharge for the period of service from December 18, 1983 to July 5, 1988 was under dishonorable conditions, and is therefore a bar to the award of VA compensation benefits. This matter comes to the Board on appeal from a February 2005 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Chicago, Illinois, which denied the Veteran's claim. In June 2007, the Veteran testified during a Board video conference hearing before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of the hearing has been associated with the Veteran's claims folder. The Board has previously considered this claim. In December 2007, the Veteran's claim was remanded pending his application to reopen a previous claim regarding his character of discharge based on new and material evidence. In July 2011, the claim was remanded in order to afford the Veteran the opportunity to submit additional evidence in support of his claim, as well as a VA examination to determine whether his current sinus condition was related to his period of honorable active duty service. Thereafter, in an August 2011 Supplemental Statement of the Case ("SSOC"), the VA Appeals Management Center ("AMC") in Washington, DC, continued to deny the claim. The claim was then returned to the Board for further appellate proceedings. In a November 2011 decision, the Board denied the Veteran's claim. The appellant subsequently appealed the decision to the United States Court of Appeals for Veterans Claims ("Court"). Thereafter, while the case was pending before the Court, the VA Office of General Counsel and the appellant's attorney (hereinafter known as "the parties") filed a Joint Motion for Remand ("Joint Motion"), requesting that the Court vacate the decision. By an Order dated November 2012, the Court granted the parties' Joint Motion, vacated the decision, and remanded the claim to the Board for compliance with the directives specified by the Court. The claims folder has been returned to the Board for further appellate proceedings. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required on his part. REMAND If a VA compensation and pension examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2, 19.9(a) (2012); Bierman v. Brown, 6 Vet. App. 125, 129 (1994). The Court has held that once VA provides an examination, it must be adequate or VA must notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding that an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). In the aforementioned Joint Motion, the parties agreed that the Board erred by relying upon an August 2011 VA examination report, in which the parties deemed the opinion of the examiner to be conclusory. Specifically, the parties found that the examiner, who opined that the Veteran's current sinus condition was less likely than not related to service prior to December 8, 1983, did not explain or provide further rationale as to why she believed the Veteran's in-service "symptoms documented between 1975 and 1983 were acute events of upper respiratory infections treated and resolved." In this respect, the Court has held that medical opinions must be supported by clinical findings in the record, and bare conclusions, even those made by medical professionals, which are not accompanied by a factual predicate in the record, are not probative medical opinions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (citing Stefl v. Nicholson, 21 Vet. App. 120, 124-125 (2007)). Accordingly, the Board finds that a remand is necessary to obtain an updated opinion addressing whether the Veteran's sinus disorder may be associated with his period of service. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (if the medical evidence of record is insufficient, VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions). In addition, the Veteran has claimed, by means of an April 2013 letter from his attorney, that a December 2004 RO Administrative Decision, which determined that that the character of the appellant's period of service from December 18, 1983 to July 5, 1988 was under dishonorable conditions, and is therefore a bar to the award of VA compensation benefits, should be revised or reversed on the grounds of clear and unmistakable error ("CUE"). Although the Board recognizes that this claim has not yet been adjudicated by the RO, and is thus not before the Board, the claim is inextricably intertwined with the issue of whether the Veteran's current sinus condition is related to his symptomatology in service, as it appears that he was treated on at least one occasion during this period. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Accordingly, this claim must first be adjudicated prior to obtaining a new VA opinion. Accordingly, the case is REMANDED for the following action: 1. The RO must first adjudicate the issue of whether a December 2004 RO Administrative Decision, which determined that that the character of the appellant's period of service from December 18, 1983 to July 5, 1988 was under dishonorable conditions, and is therefore a bar to the award of VA compensation benefits, should be revised or reversed on the grounds of CUE. The Veteran should then be notified of the decision and, if it is denied, his appellate rights. 2. Thereafter, return the claims folder to the examiner who performed the August 2011 VA examination (if at all possible). If the Veteran's claim of CUE as outlined in numbered paragraph 1 above is denied, request that the examiner provide an explanation for her conclusion that the Veteran's in-service upper respiratory symptoms documented between 1975 and 1983 were acute events of upper respiratory infections treated and resolved. However, if the Veteran's claim of CUE as outlined in numbered paragraph 1 above is granted and the December 2004 Administrative Decision is revised, the examiner must be instructed to consider all of the Veteran's service treatment records from all periods of qualifying active duty service and provide an opinion as to whether it is at least as likely as not (i.e., whether there is at least a 50 percent probability) that the Veteran's current sinus disorder is the result of any incident of active duty service or is otherwise related thereto. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. If the examiner who performed the August 2011 examination is unavailable, schedule the Veteran for an appropriate VA examination with an individual with the appropriate expertise in respiratory disorders to determine the nature and probable etiology of any current sinus condition. The claims file must be made available to the examiner for review in conjunction with the examination, and the examiner should specifically note that the file has been reviewed. If the Veteran's claim of CUE as outlined in numbered paragraph 1 above is denied, the examiner should be instructed to review and consider only the Veteran's in-service nasal/sinus/upper respiratory related complaints for the period prior to December 8, 1983, and should determine whether these in-service symptoms represent the onset of any current sinus disability; or whether they were acute and transitory events. (a) If the RO determines there was no CUE in the December 2004 Administrative Decision and thus maintains that the Veteran's character of service for the period December 18, 1983 to July 5, 1988 was under dishonorable conditions, the examiner should be specifically advised that there has been a determination that this period of service has been deemed dishonorable and should be instructed to review and consider only the Veteran's in-service nasal/sinus/upper respiratory related complaints for the period prior to December 8, 1983, and should determine whether these in-service symptoms represent the onset of any current sinus disability; or whether they were acute and transitory events. (b) However, if the RO determines that there was CUE in the December 2004 Administrative Decision, the examiner should be instructed to review and consider all of the Veteran's in-service nasal/sinus/upper respiratory related complaints for his entire period of service beginning September 1975 through the date indicated by any revised Administrative Decision regarding the character of the Veteran's discharge and should determine whether these in-service symptoms represent the onset of any current sinus disability; or whether they were acute and transitory events. It would be helpful if the examiner would use the following language, as appropriate: "more likely than not," (meaning likelihood greater than 50%); "at least as likely as not," (meaning likelihood of at least 50%); or "less likely than not" or "unlikely" (meaning there is less than 50% likelihood). The clinician is also advised that the term "at least as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship; "less likely" weighs against the claim. If, for any reason, the clinician is unable to offer an opinion without resorting to speculation, it should be so stated. In such case, the examiner must specifically support that conclusion with a detailed medical explanation that takes into consideration all of the pertinent evidence of record (including the Veteran's self-reported history, and addresses such matters as whether: a.) there is inadequate factual information upon which to base an opinion (e.g., the lack of service treatment records); b.) the question falls outside of the limits of current medical knowledge or scientific development; c.) the condition manifested in an unusual way, such that its cause or origin is unknowable; or d.) there are other non-service related factors for developing the condition. 4. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed and readjudicate the Veteran's claim. If the benefit sought on appeal is not granted, the Veteran and his attorney should be provided with a Supplemental Statement of the Case and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).