Citation Nr: 21064009 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 06-21 111 DATE: October 18, 2021 REMANDED Entitlement to service connection for a nasal disability, to include sinusitis and rhinitis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from March 1986 to June 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision from a Department of Veterans Affairs (VA) Regional Office. In June 2009, the Veteran testified at a videoconference before a Veterans Law Judge who is no longer employed by the Board, and a transcript of the hearing has been associated with the claim file. By correspondence dated in January 2021, the Veteran was offered the opportunity to testify at another hearing; however, he did not respond within 30 days. Therefore, the Board will continue review of the appeal. The matter was most recently before the Board in March 2021 and was remanded for further development, as the April 2019 VA medical opinion was found inadequate. After accomplishing further action, the agency of original jurisdiction (AOJ) continued to deny the claims, as reflected in the April 2021 supplemental statement of the case (SSOC), and returned these matters to the Board for further appellate consideration. As an initial matter, the Board notes that the issue on appeal has been recharacterized to more broadly reflect that the Veteran seeks service-connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemmons v. Shinseki, 23 Vet. App. 1 (2009). Unfortunately, the Board finds that additional AOJ action in this appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted, the Board last remanded this claim for a VA etiological opinion, as the previous opinion was found inadequate for adjudication purposes. See March 2021 Board Decision. Notably, the VA examiner was again requested to offer an opinion on whether any diagnosed sinusitis and rhinitis had its onset in service or was otherwise related to service. In providing a rationale, the examiner was directed to consider and discuss the medical evidence of record and all lay assertions made by the Veteran. Id, at 10. Specifically, the examiner was asked to comment on the medical significance, if any, that an April 1987 service treatment record (STR) indicated an assessment of possible seasonal allergic rhinitis, and that the Veteran has been prescribed Fluticasone, beginning as early as 2005, for sinus and then nasal allergy. Id. In April 2021 the AOJ obtained a VA examination and medical opinion. The examiner diagnosed allergic rhinitis, and symptoms of congestion with mucus drainage were noted. No diagnosis of sinusitis was rendered. The April 2021 VA examiner concluded that a nexus had not been established, citing that the Veteran's STRs did not show allergic rhinitis or sinusitis during service, and he had no evidence of chronicity of care. However, as specifically noted in the March 2021 remand, an April 1987 STR indicated the provider contemplated a diagnosis for possible seasonal allergic rhinitis. Further, it does not appear the examiner reviewed the evidentiary record, as the prior remands and Board hearing transcript detail the Veteran's in-service and post-military complaints and treatment for sniffles, nasal congestion, and cough, as well as his assertions that the symptoms continued since service until diagnosis. See e.g., April 6, 1987 STR; June 2006 Substantive Appeal; June 2009 Board hearing transcript; and January 2010, July 2018, and March 2021 Board Decisions. The examiner simply stated that allergic rhinitis began in late 2000, long after the Veteran left military service, and did not address any of the relevant medical evidence of record as directed by the remand order. Therefore, the examiner's conclusion that a nexus had not been established is not probative, and there is still no adequate opinion of record addressing the etiology of the Veteran's nasal disability. Under these circumstances, the Board concludes there has not been substantial compliance with the March 2021 remand. See D'Aries v. Peake, 22 Vet. App. 97, 105-06 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Hence, a remand for another medical opinion is required. See Stegall, supra. The matters are REMANDED for the following action: 1. Obtain a medical opinion on the nature and etiology of the Veteran's nasal disability, to include sinusitis and rhinitis. The entire claims file, including a copy of this REMAND, must be made available to the examiner. The examiner must confirm the record review took place. If, and only if, the examiner deems necessary, the Veteran should be scheduled for examination; all evaluations, studies, and tests should be conducted. First, the examiner should identify all diagnosed nasal disabilities during the appeal period, beginning February 4, 2005. The examiner should clarify if a diagnosis of sinusitis and/or rhinitis is not found. Then, for any nasal disability, to include sinusitis and rhinitis, the examiner should opine whether it is at least as likely as not (probability of 50 percent or greater) that any such disability had its onset during active service or is etiologically related to the Veteran's active duty service. The examiner should specifically consider and address the Veteran's in service complaints and treatment for nasal congestion and related symptoms, to include the April 1987 STR that listed possible seasonal allergies as an assessment/diagnosis, as well as lay assertions of continued symptoms. See e.g., STRs dated, February 19, 1987; February 20, 1987; March 31, 1987; and April 6, 1967; June 2006 Substantive Appeal (VA Form 9); and June 2009 Board hearing transcript, at 21-22. The examiner is advised that the Veteran is competent to report his symptoms and history, and his reports must be considered in formulating the requested opinions. The examiner must provide supporting rationale for all opinions expressed. 2. To help avoid future remand, the AOJ should ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, supra. After the above actions, the AOJ must readjudicate the issues on appeal. If any benefit sought remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Gipson, Associate 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.