Citation Nr: 21061298 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 15-07 331 DATE: October 1, 2021 REMANDED Entitlement to service connection for a sinus condition, to include as secondary to service-connected traumatic deviated nasal septum status post septoplasty, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from April 1981 to July 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of this hearing is of record. The Board previously remanded this matter in July 2018, September 2020, and April 2021 for additional development. Unfortunately, as discussed below, the Board is not satisfied that there has been substantial compliance with the most recent remand instructions; therefore, the matter must be remanded once again. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for a sinus condition, to include as secondary to service-connected traumatic deviated nasal septum status post septoplasty, is remanded. The Veteran seeks entitlement to service connection for a sinus condition, which he contends first developed following an in-service traumatic nasal injury, which resulted in a deviated septum. The Veteran testified at his April 2018 Board hearing that after this injury, his sinuses became clogged and it became difficult to breathe through his nose. After undergoing a septoplasty in 1990, the Veteran asserts that he was told he had chronic nasal obstruction. Since his surgery, the Veteran states that he has had continuous sinus problems, including a runny and bleeding nose and nasal congestion. As noted in the April 2021 remand, the Board has expanded the service connection claim to encompasses all currently-diagnosed sinus conditions. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that the scope of a claimant's claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.) In this regard, during the pendency of the appeal, the Veteran has been diagnosed with various sinus conditions, to include chronic maxillary sinusitis with intermittent epistaxis, bilateral maxillary sinus polyps, chronic allergic sinusitis, and allergic rhinitis. The medical and lay evidence of record documents that the Veteran has consistently reported experiencing chronic nasal obstruction, as well as intermittent nasal bleeding, headache, and pain in the sinus area. In the most recent remand, the Board found that the record does not contain an adequate medical opinion addressing the Veteran's claim, to include whether he is entitled to secondary service connection. As such, on remand, the Board directed the RO to obtain an addendum medical opinion from a VA physician with expertise in otolaryngology, that adequately addresses the nature and etiology of all currently-diagnosed sinus conditions. In August 2021, an addendum medical opinion was obtained from a VA physician who specializes in obstetrics and gynecology. Notably, the VA examiner only provided one opinion to address both direct and secondary service connection. Upon review of the Veteran's claims file, the VA examiner opined that the Veteran's sinusitis is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner remarked that there is no evidence of sinusitis during service. The examiner further stated that the Veteran was diagnosed with chronic sinusitis in 1994, but that x-rays in January 2004 were negative for chronic sinusitis and, therefore, the condition diagnosed in 1994 likely represented episodic, acute sinusitis. Chronic sinusitis was not confirmed by x-rays until 2012. Accordingly, the examiner determined there is no nexus established to service or proximate thereto. With regard to secondary service connection, the examiner stated only that "a deviated septum is unlikely to cause sinusitis, though an uncorrected deviation may cause worsening of sinus symptoms. As the Veteran's septum is documented as having been corrected with no evidence of recurrence, this is moot. Furthermore, there is no evidence of aggravation of the Veteran's chronic sinusitis beyond its natural course due to any cause." The Board finds the August 2021 medical opinion to be inadequate for several reasons. First, the VA examiner only provided an opinion as to the Veteran's diagnosis of sinusitis; he did not address all currently-diagnosed sinus conditions, to include allergic rhinitis, as specifically requested by the Board in its remand directives. Next, the examiner did not consider or discuss the Veteran's competent and credible lay statements as to the in-service onset and continuity of sinus symptoms ever since undergoing a septoplasty in 1990. An opinion that is based on an incomplete or inaccurate review of the record and does not consider the Veteran's competent lay statements is inadequate. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993); Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Smith v. Derwinski, 2 Vet. App. 137, 140 (1992). With regard to secondary service connection, the examiner's statements that "a deviated septum is unlikely to cause sinusitis" and that "there is no evidence of aggravation of the Veteran's chronic sinusitis beyond its natural course due to any cause" are conclusory and not supported by any medical rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, and sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (a mere conclusory opinion is insufficient to allow the Board to make an informed decision as to the weight to assign to a medical opinion). Finally, the examiner did not separately address the matters of causation and aggravation pursuant to El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). In light of the above, the Board finds that the record still does not contain a medical opinion that is sufficient to fairly decide the Veteran's service connection claim. As such, the claim must be remanded once again because the RO did not comply with the Board's prior remand directives to obtain an adequate medical opinion on the Veteran's behalf. See Stegall, 11 Vet. App. at 268. On remand, an addendum medical opinion must be obtained, from a VA otolaryngologist if possible, that is adequate for the Board to make an informed decision on the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). The matter is REMANDED for the following action: Obtain an addendum opinion from a VA physician of appropriate expertise (i.e. an otolaryngologist) discussing the nature and etiology of the Veteran's sinus conditions, to include, but not limited to, sinusitis and allergic rhinitis. An in-person examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety, to include a copy of this REMAND, and the review should be noted in the examination report. Thereafter, the VA examiner is asked to provide a fully-articulated medical opinion addressing the following: (a) Identify all currently-diagnosed sinus conditions. If the examiner determines that the Veteran does not have a current diagnosis of acute sinusitis with residuals or chronic sinusitis, this finding must be supported by a fully-articulated medical rationale. (b) For any currently-diagnosed sinus condition, is it at least as likely as not (50 percent or greater probability) that the condition was incurred in or caused by any in-service disease, event, or injury? (c) For any currently-diagnosed sinus condition, is it at least as likely as not (50 percent or greater probability) that the condition is caused by the Veteran's service-connected traumatic deviated nasal septum status post septoplasty? (d) For any currently-diagnosed sinus condition, is it at least as likely as not (50 percent or greater probability) that the condition is aggravated by (increased in severity beyond its natural progression) his service-connected traumatic deviated nasal septum status post septoplasty? The examiner must provide separate opinions for questions (c) and (d). In addressing the matter of aggravation, the examiner should note that it is not required that the claimed disabilities are shown to be aggravated beyond natural progression "predominantly" by the service-connected disability, but rather, whether there is any contributing degree of aggravation beyond natural progression by the service-connected disability. Additionally, a recent Court of Appeals for Veterans Claims decision held that aggravation under 38 C.F.R. § 3.310(b) does not require that there be "permanent" worsening of the nonservice-connected disability. Any increase in disability is sufficient. Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). In providing the requested opinions, the examiner must specifically consider and address: (i) the Veteran's lay assertions as to the in-service onset and continuity of sinus symptoms following septoplasty in 1990; (ii) the April 2018 medical opinion provided by Dr. J.H., who stated that the Veteran's chronic nasal congestion is due to his left nasal septum deviation; and (iii) the May 2018 sinusitis disability benefits questionnaire (DBQ) completed by Dr. J.H. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner is advised that the Veteran is competent to report his medical history, including the onset of symptoms, and such reports must be acknowledged and considered in formulating any opinion. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the claimed disability and military service. The examiner must provide a complete rationale for any opinion offered, citing to the examiner's own expertise, medical principals, and/or evidence in the Veteran's claims file, when necessary, to support the conclusion reached. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examiner (and RO) is reminded that failure to comply with the directives outlined herein will render the opinion inadequate and will result in further remand of the Veteran's claim. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Melissa Barbee, Counsel 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.