Citation Nr: 20004239 Decision Date: 01/21/20 Archive Date: 01/17/20 DOCKET NO. 15-24 494 DATE: January 21, 2020 REMANDED Entitlement to service connection for a sinus condition, to include as secondary to service-connected postoperative residuals of a deviated nasal septum (deviated septum) and service-connected chronic left ear cholesteatoma, status post left tympanoplasty surgery with intact canal wall mastoidectomy with ossicular chain reconstruction (left ear disability), is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. (The issue of entitlement to an increased rating for postoperative residuals of a deviated nasal septum is addressed in a separate decision.) REASONS FOR REMAND The Veteran had active military service from October 1953 to October 1957. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In August 2010, the Veteran appeared before Veterans Law Judge (VLJ) Keith Allen and presented testimony addressing the issues of entitlement to service connection for a sinus condition and for a deviated septum as well as entitlement to a TDIU. A transcript of the hearing has been associated with the electronic claims file. In October 2010, the Board remanded the claims listed above, as well as the claim for service connection a deviated septum for the issuance of a statement of the case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999). In June 2015, the RO issued a rating decision granting service connection for a deviated septum, which constituted a full grant of the claim. The RO also issued an SOC for the issues listed above and in July 2015, the Veteran submitted a timely VA Form 9 to perfect his appeal. In July 2016, the Veteran perfected an appeal of the initial rating assigned in June 2015 for the deviated septum. In July 2017, the Veteran appeared before VLJ Lana Chu, nee Jeng, and provided testimony in support of each of the claims listed above. He also provided testimony in support of his claim for an increased rating for his deviated septum. A transcript of the hearing has been associated with the electronic claims file. A VLJ who conducts a hearing must participate in making the final determination of the claim involved. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. Appeals can be assigned only to an individual VLJ or to a panel of not less than three members. See 38 U.S.C. § 7102(a). Thus, when a veteran has had a personal hearing before two separate VLJs during the appeal and these hearings covered a common issue, as they have in this case, a third VLJ is assigned to the panel after the second Board hearing has been held. The United States Court of Appeals for Veterans Claims (Court) has interpreted 38 C.F.R. § 20.707 as requiring that a veteran must be provided the opportunity for a hearing before all three VLJs involved in a panel decision. Arneson v. Shinseki, 24 Vet. App. 379 (2011). Thus, in a November 2017 letter, the Veteran was offered the opportunity for a third hearing before a third VLJ. However, in a November 2017 response, the Veteran declined to appear at a third hearing. As such, VLJ S. B. Mays was assigned as the third VLJ for the panel decision. Regarding the claim for an increased rating for a deviated septum, the Veteran testified before VLJ Allen regarding the matter of service connection. When the RO granted service connection, that appeal was fully satisfied. The Veteran started a new appeal contesting the ratings assigned for the deviated septum and he testified about this issue only before VLJ Chu. As such, this issue is addressed in a separate Board decision. In January 2018, VLJs Chu, Allen, and Mays issued a panel decision that, in part, remanded the matters of entitlement to service connection for a sinus condition and entitlement to a TDIU for further development. Upon review of the claims file, the development ordered in January 2018 has not been substantially completed and as such, an additional remand is required. See Stegall v. West, 11 Vet. App. 268 (1998). Briefly, in the January 2018 Board panel decision, the Board also remanded the issue of entitlement to service connection for a left eardrum rupture, and in October 2019, the RO granted service connection. Accordingly, that appeal has been fully satisfied. 1. Service connection for a sinus condition is remanded. The Veteran seeks service connection for a sinus condition, to include as secondary to his service-connected deviated septum and service-connected left ear disability. The Board apologizes for the delay but finds that an additional remand is necessary before adjudicating the claim. In January 2018, the Board remanded this matter to obtain opinions addressing whether the Veteran’s service-connected deviated septum has either caused or aggravated a sinus condition. The Board specifically asked the examiner to identify all sinus conditions diagnosed during the pendency of the claim and to provide etiology opinions addressing each condition, to include chronic rhinitis and sinusitis. The Board further requested that the examiner consider the Veteran’s lay statements indicating symptoms present since service. In July 2019, the Veteran attended a compensation and pension examination. The examiner provided etiology opinions but did not provide opinions as requested by the Board. First, the examiner did not identify sinus conditions treated during the pendency of the claim. Second, the examiner provided negative nexus opinions addressing causation and aggravation; however, the examiner did not identify the diagnosis in question or support the opinions with adequate rationale. Finally, the examiner did not address the Veteran’s lay statements asserting that his symptoms have persisted since service. Accordingly, the July 2019 opinions are not adequate for rating purposes. In this case, VA and private treatment records show that the Veteran has had diagnoses of sinus infections, allergic rhinitis, chronic sinusitis, and rhinitis during the pendency of the claim. He has also consistently reported symptoms such as sinus drainage and post-nasal drip and that his symptoms have persisted since his in-service surgery for deviated septum. The Veteran has also indicated a relationship between his sinus condition and his recently service-connected left ear disability. On remand, opinions with complete rationale must be obtained that address whether the Veteran’s sinus conditions described or diagnosed during the pendency of the claim, to include sinus infections, allergic rhinitis, chronic sinusitis, and rhinitis, are due to or have been aggravated by his service-connected deviated septum and/or left ear disability. The Board notes that the Court recently held that causation and aggravation are independent concepts and should have separate findings and rationales. See Atencio v. O’Rourke, 30 Vet. App. 74 (2018). As such, the examiner must provide separate findings and rationales relating to causation and aggravation. Finally, the Board acknowledges that at the time of a January 2012 VA examination, the Veteran had a diagnosis of allergic rhinitis. The examiner provided an opinion addressing the relationship between that diagnosis and service. However, since that time, the Veteran has had additional diagnoses related to his sinuses. As such, the Board finds that opinions must also be obtained addressing whether any of the Veteran’s sinus conditions described or diagnosed during the pendency of the claim, to include sinus infections, allergic rhinitis, chronic sinusitis, and rhinitis, are directly related to service. 2. Entitlement to a TDIU is remanded. The Veteran seeks entitlement to a TDIU. Unfortunately, this issue is inextricably intertwined with the other issue remanded herein. Therefore, although the Board regrets the additional delay, the issue of entitlement to a TDIU must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that 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). The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file updated VA treatment records, if any, and any identified private treatment records. All efforts to obtain additional evidence must be documented in the electronic record. 2. Request opinions from a physician with appropriate expertise addressing the etiology of the Veteran’s sinus disability. The examiner must be provided access to the electronic claims file and he or she must indicate review of these items in the examination report. The examiner should clearly identify all sinus disabilities diagnosed since the beginning of the claim (June 2009), even if they have since resolved, and identify the date of diagnosis. For each current sinus disability (i.e., shown since the beginning of the claim), to include sinus infections, allergic rhinitis, chronic sinusitis, and rhinitis, opine whether it is at least as likely as not (50 percent or greater probability) that the disability is related to service. For each current sinus disability (i.e., shown since the beginning of the claim), to include sinus infections, allergic rhinitis, chronic sinusitis, and rhinitis, opine whether it is at least as likely as not (50 percent or greater probability) that the disability is due to or has been aggravated (permanently worsened) by postoperative residuals of a deviated nasal septum. The examiner must provide separate opinions addressing causation and aggravation. For each current sinus disability (i.e., shown since the beginning of the claim), to include sinus infections, allergic rhinitis, chronic sinusitis, and rhinitis, opine whether it is at least as likely as not (50 percent or greater probability) that the disability is due to or has been aggravated by the chronic left ear cholesteatoma. The examiner must provide separate opinions addressing causation and aggravation. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. In the rationale, the examiner should address the lay statements from the Veteran indicating symptoms present since service. (Continued on the next page)   3. Conduct any additional development necessary, to include any development necessary to adjudicate the TDIU claim. 4. Then, readjudicate the Veteran’s claims on appeal. If the benefits sought on appeal remain denied, provide the Veteran and his representative a supplemental statement of the case and allow an appropriate period for response. L. CHU Veterans Law Judge Board of Veterans’ Appeals KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda G. Alderman The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.