Citation Nr: 21068426 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-04 732 DATE: November 10, 2021 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to an initial compensable rating for chronic rhinitis is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2000 to June 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a hearing conducted by the undersigned Veterans Law Judge. In May 2021, the Board remanded the Veteran's claim for additional development. The case is once again before the Board. 1. Entitlement to service connection for a back disability is remanded. In July 2021, the Veteran underwent a back conditions examination. There, the examiner diagnosed him with degenerative arthritis, intervertebral disc syndrome, and spinal stenosis but found them unrelated to his military service because there was "no evidence of chronicity of care." She acknowledged that the Veteran complained of low back pain during service. But she emphasized that it was only once and that he didn't start complaining of it again until a work-related injury six years after exit. Regrettably, the opinion is inadequate because it is based upon an inaccurate factual premisetwo, in fact. Reonal v. Brown, 5 Vet. App. 458, 463 (1993). During service, the Veteran reported back pain more than once. The examiner correctly noted he complained of "occasional [back] pain after being hoisted by his harness" in April 2005. But he also reported back pain in January 2005 on an Abbreviated Aeromedical Examination and in March 2005 on a medical history report. And contrary to the examiner's six-year gap finding, diagnostic imaging from September 2005 shows that the Veteran presented with "pain in the lower back" just three months after exit. Remand is further warranted to consider newly added medical evidence. After the examination, the Veteran submitted an April 2008 medical record showing that his healthcare provider diagnosed him with low back pain and recommended he treat it with a nonsteroidal anti-inflammatory drug (NSAID) and physical therapy, among other things. Because VA received this evidence after the examiner rendered her opinion, she could not have considered it. And it potentially undercuts her no-chronicity-of-care rationale. As such, remand is also warranted to obtain an addendum medical opinion that considers the relevant and potentially favorable medical evidence of record. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) ("An opinion is adequate where it is based upon consideration of the veteran's prior medical history."). 2. Entitlement to an initial compensable rating for chronic rhinitis is remanded. The Veteran's chronic rhinitis is rated under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6522. This DC provides for a 30 percent disability rating for allergic or vasomotor rhinitis "[w]ith polyps." If there is no evidence of polyps, a 10 percent disability rating is warranted "with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side." Otherwise, the Veteran's disability is rated noncompensable. 38 C.F.R. § 4.31. In July 2021, the Veteran underwent a rhinitis examination. There, the Veteran complained of constant stuffiness in both nostrils that is worse in the morning and at night. Despite this, the examiner found no evidence of nasal polyps, complete obstruction of either nasal passage, or greater than 50 percent obstruction of both sides. After the examination, the Veteran submitted new medical evidence, including the results of a June 2021 anterior rhinoscopy. The Veteran's private doctor, an ear, nose, and throat (ENT) specialist, found his left nasal passage about 90 percent obstructed and his right nasal passage 80 to 85 percent obstructed. This suggests that a 10 percent rating might be appropriate. However, it's unclear from the medical record whether either obstruction is from the Veteran's service-connected chronic rhinitis or not. At the visit, the doctor assessed nonservice-connected recurrent acute sinusitis and nasal airway obstruction, secondary to a deviated septum, bilateral inferior turbinate hypertrophy, and external nasal valve collapse. As such, remand is warranted to obtain an addendum medical opinion that considers the relevant and potentially favorable medical evidence of record. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) ("An opinion is adequate where it is based upon consideration of the veteran's prior medical history."). As noted above, the Veteran complained of constant stuffiness in both nostrils that is worse (i.e., flare-ups) in the morning and at night at the last examination. When an examination is not conducted during a flare-up, the examiner must ask the Veteran about the "severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares." Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017); see also Ardison v. Brown, 6 Vet. App. 405, 407-409 (1994). The examiner must then offer a flare opinion based on evidence from relevant sources, including the veteran's lay statements. Sharp, 29 Vet. App. at 34-35. Because no examiner has opined on the severity of the Veteran's symptoms during a flare-up, the Board cannot make a fully informed decision on whether an initial compensable rating is warranted and must remand for an addendum medical opinion. Finally, as the case is being remanded for additional development, any outstanding VA treatment records should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (per curiam). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the claims file. 2. Then, arrange for an appropriate healthcare provider to review the Veteran's claims file and provide an opinion on whether it is at least as likely as not (50 percent probability or greater) that the Veteran's back disability had its clinical onset during service or within one year after service or is due to an event or incident of the Veteran's period of active service. In the opinion, the examiner must address the September 2005 Back X-Ray (received by VA in April 2020) and the April 2008 medical record (received by VA in August 2021). If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. 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. 3. Arrange for the last medical examiner to review the July 2021 sinus computed tomography (CT) scan and the June 2021 private ENT medical record and address whether the Veteran's service-connected chronic rhinitis results in polyps, greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. In addition, the examiner should address the Veteran's chronic rhinitis flare-ups, and their severity, frequency, duration, precipitating and alleviating factors and extent of functional impairment. If feasible, the examiner should provide an opinion on whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sinus symptoms during a flare would result in (1) polyps, (2) greater than 50 percent obstruction of the nasal passage on both sides, or (3) complete obstruction on one side. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). If the last medical examiner is unavailable, arrange for an appropriate healthcare provider to review the claims file and provide an addendum medical opinion. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. 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. 4. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Canedy, 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.