Citation Nr: 21062294 Decision Date: 10/07/21 Archive Date: 10/06/21 DOCKET NO. 14-29 030 DATE: October 7, 2021 REMANDED Entitlement to service connection for transient ischemic attack to include as secondary to service-connected disability is remanded. Entitlement to a disability rating in excess of 10 percent from September 27, 2012 to August 7, 2014 and in excess of 50 percent as August 8, 2014 for service-connected chronic rhinosinusitis is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected sinusitis prior to February 29, 2020 is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1986 to January 1989. This case is before the Board of Veterans' Appeals (Board) on appeal from Regional Office (RO) rating decisions dated in November 2013 and September 2017. In the November 2013 rating decision, the RO denied a disability rating in excess of 10 percent for service-connected rhinosinusitis. The Veteran's notice of disagreement (NOD) was received in January 2014. The RO issued a statement of the case (SOC) in April 2014. The Veteran's VA Form 9, substantive appeal to the Board, was received in July 2014. In July 2016, the Veteran testified at a travel Board hearing before a Veterans Law Judge. A transcript of the testimony is associated with the claims file. In February 2018, the Board remanded the case to the RO for further development and adjudicative action. In the September 2017 rating decision, the RO denied service connection for transient ischemic attack (claimed as stroke). The Veteran's notice of disagreement (NOD) was received in March 2018. The RO issued a statement of the case (SOC) in April 2018. The Veteran's VA Form 9, substantive appeal to the Board, was received in May 2018. In a February 2020 rating decision, the RO increased the Veteran's disability rating from 10 percent to 50 percent, effective August 8, 2014, for service-connected rhinosinusitis. By the time the appeal regarding entitlement to an increased disability rating in for service-connected rhinosinusitis was returned to the Board following the February 2018 Board remand, the Veterans Law Judge (VLJ) who presided over the September 2013 hearing was no longer employed by the Board. VA law requires that the Veterans Law Judge (VLJ) who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. Accordingly, in January 2021 correspondence, the Board notified the Veteran that his case was reassigned to another VLJ, and afforded the Veteran an opportunity to request another Board hearing if he so chose. The Veteran responded in January 2021 that he did not wish to appear at another Board hearing and to consider his case on the evidence of record. Despite the Veteran's clear intent to not have another hearing, the Veteran was scheduled for another hearing in July 2021, and he testified at a virtual Board before the undersigned Acting Veterans Law Judge. A transcript of the testimony is associated with the claims file. Regarding characterization of the appeal, the issue of whether the Veteran is unable to obtain or maintain employment due to his service-connected chronic rhinosinusitis has been reasonably raised by the record. Thus, the Board has now expanded the appeal to include the matter of entitlement to a TDIU due to his service-connected chronic rhinosinusitis. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Transient Ischemic Attack The Veteran contends that his transient ischemic attack was caused by or related to the physicality of his military occupation specialty during active service. The Veteran explained that jumping out of airplanes with full gear including M60 machine guns onto battles fields, trees, and deserts, as well as injuries from jumping as a paratrooper contributed to the deterioration of his body and led to his transient ischemic attack. In the alternative, the Veteran contends that his transient ischemic attack was caused by or aggravated by his service-connected obstructive sleep apnea, sinusitis, and/or medications to include gabapentin prescribed to treat his service-connected lumbosacral strain and cervical strain. The Veteran was provided with a VA examination regarding his service connection claim for transient ischemic attack in September 2017. The VA examiner provided an opinion on whether the Veteran's transient ischemic attack is at least as likely as not proximately due to or the result of his sleep apnea with rhinosinusitis. However, the examiner did not address whether the Veteran's service-connected sleep apnea and/or rhinosinusitis aggravated the Veteran's transient ischemic attack. Furthermore, the examiner did not provide an opinion on whether the Veteran's transient ischemic attack was directly related to service or secondary to service-connected lumbosacral strain and cervical strain to include any medications to treat such disabilities. Thus, a remand is necessary to obtain a new VA medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Increased Evaluation for Rhinosinusitis and TDIU Additional relevant VA treatment records and a September 2020 VA examination for sinusitis/rhinitis were added to the claims file since the last Supplemental Statement of the Case (SSOC) as to this appeal was issued in February 2020. VA regulations require that such evidence be submitted for consideration by the Agency of Original Jurisdiction (AOJ), unless the right to consideration by the AOJ is waived. 38 C.F.R. § 19.37, 20.1305(c). Thus, in a March 2021 letter, the Board asked the Veteran if he wished to waive AOJ review of the additional pertinent VA-generated evidence associated with the record. The waiver request letter specifically notified the Veteran if she did not respond within 45 days from the date of the letter, the Board would remand the appeal to the AOJ for initial consideration of the additional evidence. In April 2021 correspondence, the Veteran requested the Board to remand (send back) his case to the AOJ for review of the additional evidence that was submitted in his appeal. Thus, the Board must remand these issues for AOJ review of the additional evidence associated with the claims file after the February 2020 SSOC. See 38 C.F.R. § 20.1305(c). The matters are REMANDED for the following action: 1. Obtain a VA medical opinion with respect to the Veteran's service connection claim for transient ischemic attack. Only provide an examination if one is deemed necessary by the medical specialist. The contents of the entire, electronic claims file to include a complete copy of this REMAND, must be made available to the examiner, and the examination report should reflect full consideration of the Veteran's documented medical history and lay assertions. 1) The medical specialist is asked to provide an opinion on whether the Veteran's transient ischemic attack and any residuals thereof documented in the medical record at any point pertinent to the current appeal (even if now asymptomatic or resolved) is at least as likely as not (i.e., a fifty percent or greater probability) in part caused by or related to the Veteran's active military service to include the physicality of his military occupation specialty during active service, such as parachuting out of airplanes with full gear onto battles fields, trees, and deserts. 2) If the transient ischemic attack is deemed not directly related to active military service, then the medical specialist should provide an opinion as to whether it is as likely as not that the Veteran's i transient ischemic attack (a) was caused; OR (b) is or has been aggravated (i.e., worsened) by the Veteran's service-connected disabilities, particularly obstructive sleep apnea, rhinosinusitis, lumbosacral strain and/or cervical strain, to include any medication (including gabapentin) used to treat such disabilities. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. A complete, clearly-stated rationale for the conclusions reached-to include identification of evidence and medical authority relied upon-must be provided. 2. Review the additional evidence added to the record since the September 2020 SSOC pertaining to the issues of entitlement to a disability rating in excess of 10 percent from September 27, 2012 to August 7, 2014 and in excess of 50 percent as August 8, 2014 for service-connected chronic rhinosinusitis and entitlement to a TDIU due to service-connected sinusitis prior to February 29, 2020, complete any development deemed necessary in light of the new evidence, and readjudicate the claims. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Berry, 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.