Citation Nr: 19125353 Decision Date: 04/04/19 Archive Date: 04/04/19 DOCKET NO. 15-39 826 DATE: April 4, 2019 REMANDED Entitlement to service connection for back pain is remanded. Entitlement to service connection for residuals of an eye injury is remanded. Entitlement to service connection for a sinus condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from February 2008 to March 2009, including service in Iraq. He also had a period of active duty for training (ACDUTRA) from August to November 2007 and additional service in the Army National Guard. The Board notes that the Veteran initiated appeals of entitlement to service connection for post-traumatic stress disorder (PTSD) and hypertension. However, the Veteran did not perfect these appeals; rather, in an October 2015 substantive appeal (VA Form 9), he specifically limited the appeal to exclude these issues. As such, the claims for service connection for PTSD and hypertension are not before the Board. 1. Entitlement to service connection for back pain is remanded. In a November 2014 VA back examination, the Veteran reported that he saw a chiropractor weekly, which the examiner noted were not in the claims file. Remand is therefore necessary to obtain any outstanding relevant treatment records. 2. Entitlement to service connection for residuals of an eye injury is remanded. The Veteran asserts that shrapnel from an IED injured his eye. See the March 2013 application for disability compensation benefits, October 2015 VA Form 9. An April 2013 VA optometry record indicates that the Veteran’s left eye was hit with shrapnel above the cornea in 2009, which had caused an ulcer. Although the treatment record notes that there were no lasting problems, the Board nevertheless finds that the statements and evidence of record support the need for a VA examination to obtain a medical opinion on the issue of service connection for residuals of an eye injury. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), 38 U.S.C. § 5103A(d). 3. Entitlement to service connection for sinusitis is remanded. The Veteran had a VA examination in November 2014. He reported that while in Iraq, he developed dryness in the nasal passage, nosebleeds, and congestion. He was currently on Cipro for a sinus infection and had been taking cetirizine daily for the past year. He had nosebleeds 4-5 times per week and sores in the nose. On examination the Veteran was noted to have frontal sinusitis with symptoms of near constant sinusitis, headaches, tenderness of affected sinus, purulent discharge, crusting, and tender nose. The Veteran had seven or more non-incapacitating episodes of sinusitis in the past 12 months. The examiner diagnosed intermittent acute sinusitis, which was less likely than not incurred in or caused by the claimed in-service injury, event, or illness because she was unable to establish a chronicity of a sinus condition. The Board finds that the examiner’s opinion is not a sufficient basis on which to determine whether any diagnosed sinus condition is related to the Veteran’s active service, as the examiner based her opinion solely on the lack of contemporaneous treatment records. The mere fact that medical records do not establish chronicity is not, in and of itself, a sufficient basis on which to rest a medical conclusion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009), quoting Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.”). The examiner did not consider the lay reports of continued sinus problems since service. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran’s report of in-service injury but relied on the service medical records to provide a negative opinion). In addition, the examiner did not adequately explain the rationale for the diagnosis of intermittent acute sinusitis and the seemingly contradictory symptoms of “near constant sinusitis” and at least seven episodes of sinusitis in the last 12 months. The Board therefore finds that a medical opinion addendum is necessary. 38 U.S.C. § 5103A(d). The matters are REMANDED for the following action: 1. Contact the Veteran and request that he provide sufficient information, and if necessary authorization, to enable the AOJ to obtain any relevant outstanding non-VA treatment records, to include records from his chiropractor. The AOJ should make an attempt to obtain any treatment records identified by the Veteran that are not currently associated with the claims file. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and likely etiology of any current eye condition. The entire claims file, including a copy of this REMAND, must be reviewed by the examiner in conjunction with the examination. All indicated studies, tests, and evaluations deemed necessary should be performed. All relevant diagnoses should be noted. For each diagnosis, the examiner(s) should provide medical opinions on whether it is as likely as not (50 percent or greater probability) that the diagnosis is related to service, to include the claimed in-service shrapnel injury. A thorough rationale should be provided for all opinions expressed. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. 3. Contact the VA examiner who conducted the November 2014 VA sinus examination (or if he or she is no longer available, a suitable replacement) and ask the examiner to review the record and prepare an addendum to the medical opinion. The examiner should opine on whether it is at least as likely as not (50 percent probability or greater) that any current sinus condition had causal origins in active service. The examiner should specifically address the Veteran’s contentions that his sinus condition began in service and has continued since then. The examiner should also discuss the symptoms (“near constant sinusitis” and at least seven episodes of sinusitis in the last 12 months) that seemingly contradict the diagnosis of intermittent acute sinusitis. If the VA examiner determines that further examination is necessary in order to render the requested medical opinion, the Veteran should be scheduled for such an examination. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Nelson, Counsel