Citation Nr: 1319979 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 09-00 991 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a sinus disorder, to include sinusitis and allergic rhinitis. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from May 2000 to May 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. During the pendency of this appeal, the Veteran's claims file was transferred to the RO in Winston-Salem, North Carolina. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND In January 2012 and December 2012, the Board remanded the Veteran's claim of entitlement to service connection for a sinus disorder, to include sinusitis and allergic rhinitis, to obtain a supplemental opinion from a June 2011 VA examiner. In pertinent part, the Board directed the examiner to render an opinion as to whether any current sinus disorder was related to the Veteran's reported in-service symptoms and/or in-service exposure to vehicle exhaust, smoke from burning trash or feces, solvents, and paints. In so doing, the Board emphasized that the examiner "must incorporate the Veteran's lay report of symptoms in service and his continuous post-service symptoms." In February 2013, the Veteran was afforded a new VA examination as the June 2011 examiner was no longer available to provide the requested addendum opinion. The February 2013 examiner examined the Veteran and reviewed the Veteran's relevant service and post-service treatment reports. Based upon this review, the examiner provided a diagnosis of allergic rhinitis and nonallergic rhinitis. The examiner then found that the Veteran did not have a current sinus disorder that was etiologically related to the Veteran's active duty service, to include in-service exposure to vehicle exhaust and/or smoke from burning trash, feces, solvents, and pains. The examiner also found that the Veteran's allergic rhinitis was not etiologically related to or due to the Veteran's active duty service, to include in-service exposure to vehicle exhaust and/or smoke from burning trash, feces, solvents, and pains. The examiner also opined that the Veteran's allergic rhinitis was not permanently aggravated by active duty, to include in-service exposure to vehicle exhaust and/or smoke from burning trash, feces, solvents, and pains. In support of this conclusion, the examiner provided the following rationale: 3. "Allergic rhinitis" was not diagnosed or treated during the military service. 4. "Allergic rhinitis" was initially diagnosed in Phoenix, AZ on [May 22, 2008]. 5. During the C&P examination[, the V]eteran states that he noticed difficulty in breathing through his nose while in Iraq in 2003, however; he was not treated or diagnosed as having "Allergic Rhinitis" while in [Southwest Asia]. 6. [The] Veteran stated that following his release from the service he started attending the VA clinic at Phoenix, AZ where he was diahnosed [sic] as "Allergic Rhinitis". He has now moved to [North Carolina] and being treated for "Allergic Rhinitis" at [the] VA [Medical Center in] Salisbury, [North Carolina]. 7. Review of the post-deployment health assessment dated [May 10, 2003] by the [V]eteran showed [the] following documentation: (A) Location of operation: [Southwest Asia]: Kuwait and Iraq. (B) While deployed exposed to: Smoke from burning trash or feces, solvents, paints: Some time. (C) While deployed exposed to: Vehicle or truck exhaust fumes, Jp8[,] or other fumes: Often. (D) Symptoms as recorded by the [V]eteran: Runny nose: No Fever: No Headaches: No Difficulty breathing: No 8. Review of the above post-deployment health assessment is evident that [the V]eteran was ASYMPTOMATIC following his return from the [sic] [Southwest Asia]. 9. Review of the medical records from the VA [Medical Center in] Phoenix, AZ showed [the] following documentation: (A) Date [May 22, 2008]: Diagnosis of "Allergic Rhinitis" and [prescription]... 10. Veteran had lab. tests done at the VA [Medical Center in] Salisbury, [North Carolina]... 11. [The] Veteran's eosinophil count was found to be within normal range. 12. [The c]linical examination done on [June, 10, 2011] showed no abnormal Ear Nose Throat (ENT) findings. Respiratory system examination was normal. 13. [O]n [February 19, 2013], Medical Examination performed is normal respiratory examination. 14. X-ray of the paraspinal sinuses done on [June 10, 2011] showed no abnormal findings of the nasal septum. As mentioned above, the Board specifically directed the examiner to consider the Veteran's report of in-service symptoms and his report of experiencing symptoms continuously after his active service discharge. The Veteran's report of in-service and post-service symptoms is competent evidence as to the presence of observable symptoms such as difficulty breathing, and, thus, must be addressed as such. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). The February 2013 opinion is in essence duplicative of the April 2012 addendum opinion, which the Board found inadequate for rating purposes in December 2012. Both opinions rest entirely on the Veteran's service and post-service treatment reports and the 4-year "gap" between the Veteran's service discharge and the first post-service diagnosis of record. However, "[s]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (1997), citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Based on the above, the Board finds that the February 2013 opinion is not adequate for purposes of determining entitlement to service connection for a sinus disorder. "[O]nce the [VA] undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, [VA] must provide an adequate one." Barr, 21 Vet. App. at 311. Consequently, a remand is required to obtain a supplemental opinion or to afford the Veteran another VA examination. Additionally, because the RO did not ensure that the February 2013 supplemental opinion fully addressed the December 2012 remand directives, the Board finds that the RO did not substantially comply with the December 2012 remand. RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Consequently, the Board finds that a remand for corrective action is required. Accordingly, the case is remanded for the following action: 1. The RO must forward the evidence of record to the February 2013 VA examiner in order to obtain a supplemental opinion. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Specifically, the examiner must provide an opinion as to whether any current sinus disorder, to include any sinus disorder diagnosed during the appeal period, is related to the Veteran's reported in-service symptoms, as well as his exposure to vehicle exhaust and/or smoke from burning trash or feces, solvents, and paints while in service. When rendering the supplemental opinion, the examiner MUST specifically incorporate and discuss the Veteran's lay report of symptoms in service AND his continuous post-service symptoms. The examiner must address whether the Veteran's lay report of symptoms in service constitute the onset of the allergic rhinitis. A complete rationale for all opinions must be provided. A mere recitation of the evidence or recitation of the rationale/evidence stated in prior examination reports does not constitute an adequate opinion. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 2. If the February 2013 VA examiner is not available, the Veteran must be afforded another VA examination to determine the nature and etiology of any current sinus disorder. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All necessary and appropriate tests must be performed and their results documented. The examiner must fully describe all manifestations of any sinus disorder found. After examining the Veteran, and reviewing the evidence of record, the examiner must opine as to whether any current sinus disorder, to include any diagnosed sinus disorder during the appeal period, is etiologically related to the Veteran's active duty service, to include in-service exposure to vehicle exhaust and/or smoke from burning trash or feces, solvents, and paints. When rendering the opinion, the examiner MUST specifically incorporate and discuss the Veteran's lay report of symptoms in service AND his continuous post-service symptoms. The examiner must address whether the Veteran's lay report of symptoms in service constitute the onset of the allergic rhinitis. A complete rationale for all opinions must be provided. A mere recitation of the evidence or recitation of the rationale/evidence stated in prior examination reports does not constitute an adequate opinion. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. If a new examination is required, the RO must notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of his claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 , 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained and associated with his claims file that shows that notice scheduling the examination was sent to the last known address. Documentation must also be obtained and associated with his claims file indicated whether any notice that was sent was returned as undeliverable. 4. The RO must review the resulting examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 5. Once the above actions have been completed, the RO must re-adjudicate the Veteran's claim on appeal. If the benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, the Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).