Citation Nr: 1800189 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 12-07 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for an upper respiratory disability, to include sinusitis and rhinitis, to include as secondary to service-connected headaches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Mays, Associate Counsel INTRODUCTION The Veteran served in the U.S. Army from August 1990 to October 1997. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board remanded this case in April 2017 for additional development. As part of the development, the Board sought clarification from the Veteran as to whether he was seeking entitlement to service connection based on a theory of secondary service connection. See May 2010 Notice of Disagreement. The Veteran has not responded. Given such, construing the Veteran's statement in the most favorable light, the Board has included this issue, as styled on the front page. The Board is required to consider all theories of entitlement to VA benefits that are either raised by the claimant or reasonably raised by the record. See Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND While the Board regrets further delay, the Veteran's claim must be remanded to ensure that all due process requirements have been satisfied. The Veteran's claim was remanded in April 2017 to assess the nature and etiology of the Veteran's respiratory disorder. Specifically, the Board requested that the examiner provide an opinion as to whether any chronic respiratory disability, to include rhinitis, had its onset during active service or was caused or aggravated by an in-service disease or injury, as well as whether his disability was secondary to his service-connected headaches. The examiner was asked to review the Veteran's service treatment records (STRs) noting rhinitis or similar symptomatology. The examiner's attention was directed to a listing on the Veteran's Master Problem List of seasonal allergies, as well as the Veteran's Report of Medical History from May 1997, which noted that the Veteran had hay fever; and which referenced his seasonal allergies. The examination was accomplished in August 2017; however, it does not satisfy the Board's request, as it does not fully respond to the questions noted by the Board in order for the Board to make an informed decision on the Veteran's claim. First, the examiner, as requested by the Board remand, did not indicate whether the Veteran's allergic rhinitis or sinusitis were related to his seasonal allergies, which was reported on the Master Problem List and his Report of Medical History. The Board also notes that the Master Problem List also reports that the Veteran had maxillary sinusitis on two separate occasions in 1991, acute sinusitis on one occasion in February 1993, and sinusitis in April 1995. However, the examiner only refers to the April 1995 diagnosis of "acute sinusitis." Given that the examiner did not discuss all of the relevant diagnoses of sinusitis, it appears that the examiner did not consider all of the relevant medical evidence of record, which dictates remand for an examination that considers the Veteran's complete disability picture. Next, the examiner did not explain whether the Veteran's service-connected headaches aggravates his currently diagnosed sinusitis or allergic rhinitis, although a finding was made that there was no causation. A medical examination or opinion that fails to address whether a service-connected disability aggravated the claimed disability is inadequate to inform the Board on the issue of secondary service connection. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). As such, further development is required. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the record all of the Veteran's available VA treatment records since September 2017. All actions to obtain the requested records should be documented fully in the claims file. The Veteran should be notified if the AOJ is unable to obtain those records. 2. After any additional records are associated with the claims file, the previous examiner should prepare an addendum opinion. If that examiner is not available, an opinion should be provided by another appropriate medical professional. The claims file must be made available and reviewed by the reviewer, to include a copy of this remand. A note that it was reviewed should be included in the opinion. The examiner should provide an addendum to the August 2017 opinion addressing the following questions: a. Whether it is at least as likely as not that the Veteran's current chronic sinusitis and/or allergic rhinitis is related to the various indications of sinusitis (discussed above) and noted in his STRs (1991, 1993, and 1995). b. Whether it is as least as likely as not that the Veteran's current chronic sinusitis and/or allergic rhinitis condition is related to hay fever/ seasonal allergies as noted on the Veteran's April 1991 Master Problem List, if so c. Whether the Veteran's seasonal allergies at least as likely as not had its onset during service (a 50 percent or greater probability). d. Whether the Veteran's seasonal allergies (1) CLEARLY AND UNMISTAKABLY EXISTED prior to service and (2) whether it was CLEARLY AND UNMISTAKABLY AGGRAVATED BY SERVICE beyond the natural progress of the disease. e. Whether the Veteran's service-connected headaches aggravates his chronic sinusitis or allergic rhinitis. In doing so, the examiner should ALSO discuss the items noted in the previous Board remand. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against. Any opinions expressed by the examiner SHOULD BE ACCOMPANIED BY A COMPLETE RATIONALE. If medical literature is relied upon, the VA examiner should specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 3. Review the examination report to ensure that it is in complete compliance with the directives of this remand. Implement corrective procedures if necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (West 2012). _________________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2012), 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) (2017).