Citation Nr: 21074497 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 14-41 362A DATE: December 15, 2021 REMANDED Entitlement to increases in the (10 percent prior to July 29, 2021 and 30 percent from that date) ratings assigned for chronic sinusitis is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from September 1981 to May 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision. In July 2018, the case was remanded for further development. A June 2020 Board decision, in part, denied entitlement to a rating in excess of 10 percent for chronic sinusitis. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (CAVC), resulting in a January 2021 Joint Motion for Remand (JMR) by the parties. A January 2021 CAVC Order vacated the Board decision and remanded the matter for compliance with JMR instructions. In June 2021 the case was remanded for further development. An interim ( August 2021 ) rating decision increased the rating for chronic sinusitis to 30 percent, effective July 29, 2021. [An August 2021 rating decision granted service connection for left eye lagophthalmos, rated 10 percent, and left dry eye syndrome, rated 0 percent, each effective May 28, 2014. Accordingly, those issues are no longer on appeal before the Board.] In the January 2021 CAVC JMR, the parties agree that vacatur and remand was necessary because the Board erred by not providing an adequate statement of reasons or bases for its decision, as required by 38 U.S.C. § 7104(d)(1). Specifically, in determining that the Veteran was not entitled to a rating in excess of 10 percent for chronic sinusitis, the Board did not address evidence that was favorable to him. For instance, the Board did not address receipts submitted by the Veteran that showed the non-prescription medications he purchased to treat his sinusitis, treatment records that showed he experienced sinus pressure, and a September 2018 private treatment record that notes a diagnosis of chronic maxillary sinusitis. In a June 2021 remand, the Board noted that a June 2020 decision did not fully address certain positive evidence of record, to include private treatment records submitted by the Veteran in August 2014 that showed he was put on bed rest due to a recurrent sinus disorder and included a list of his prescriptions used to treat his sinus disorder, and his testimony at the May 2015 Decision Review Officer (DRO) hearing, when he reported that he experienced more than 6 non-incapacitating episodes per year. The Board also noted that other favorable evidence, such as a September 2018 letter from the Veteran's treating physician, a September 2018 primary care initial evaluation note, a January 2019 eye clinic note, and a June 2019 non-prescription medication list, were not fully addressed and directed that on remand, the examiner should assess the nature and severity of the Veteran's service-connected sinusitis disorder and specifically contemplate the above evidence. On July 2021 VA sinusitis examination, the diagnoses were chronic maxillary sinusitis, ethmoid sinusitis, allergic rhinitis, chronic rhinitis, and recurrent sinus condition, and the provider opined that the Veteran's sinusitis was at least as likely as not related to his service. On examination, the Veteran reported current episodes of sinusitis with increased facial pain and pressure, sinus headache, and crusting/rhinorrhea. There was tenderness to palpation of the left ethmoid and maxillary sinus, crusting, and clear rhinorrhea. He reported worsening symptoms of facial pain/pressure, sinus headache, and crusting/rhinorrhea, but indicated that he had not had incapacitating episodes or required the use of antibiotics in 1.5 years. The examiner acknowledged reviewing such evidence as an August 2014 treatment record that notes that the Veteran reported symptoms of congestion, drainage, and left facial nerve weakness, a 2018 private treatment record that notes that he had chronic sinus problems related to seasonal allergies that were not related to an upper respiratory infection, and a 2019 paranasal sinuses X-ray that showed retained bullet fragments within the left facial soft tissue and clear paranasal sinuses. The Board finds the opinion to be inadequate because although the examiner acknowledged review of the records identified by the Board in the June 2021 remand, she essentially provided only an opinion for direct service connection. The focus was primarily on the current severity of the sinusitis, and the opinion did not adequately address the severity of the sinusitis during the remainder of the period on appeal. Therefore, remand for a fully adequate medical advisory opinion regarding the severity of the Veteran's chronic sinusitis prior to July 29, 2021 is necessary. The Board notes that the examiner was to also address whether the Veteran had a separate and distinct sinus disorder, to include chronic rhinitis, and if so, to opine whether or not it was as least as likely as not that the disability began in service. The initial, July 2021, opinion was unclear, so in August 2021 the Regional Office (RO) requested a clarifying opinion. In an October 2021 clarifying addendum opinion, the provider opined that the post service diagnoses of chronic rhinitis and allergic rhinitis, although separate and distinct sinus disorders, were nonetheless less likely than not caused by or otherwise related to the Veteran's service. The matter is REMANDED for the following: Arrange for the Veteran's record to be forwarded to an appropriate VA clinician (other than the July 2021 opinion-provider), for review and a retrospective addendum opinion regarding the severity of his chronic sinusitis prior to July 29, 2021. [If further examination of the Veteran is deemed necessary for an opinion sought, such should be arranged]. The consulting provider should: To the extent possible, (as allowed by the current record) provide a retrospective opinion regarding the severity of the chronic sinusitis since October 22, 2012 (a year prior to the date of filing of the increased rating claim) (if there was variance in the severity during the period). If the record reflects varying severity of the Veteran's chronic sinusitis, identify, to the extent possible, the parameters of each distinct period of varying levels of severity (the date of onset of the distinct period to the date the period ended due to further variance) (and whether such severity during each period may be deemed consistent with the below criteria.) [The consulting provider must be provided a copy of the criteria for rating chronic sinusitis under Code 6513, including the General Rating Formula for Sinusitis, and the findings noted should include the information needed to rate under all applicable criteria and all clinical findings should be reported in detail and should consider the criteria for the next higher (i.e., 30 percent) rating which include three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting.] All opinions must include a complete explanation of rationale. In addition to reviewing the Veteran's complete file, the prior remand, and this remand, the provider should specifically note a March 2014 private treatment record when the Veteran reported symptoms of facial weakness and numbness, intermittent dizziness, drying congestion, dry pharynx and larynx, an August 2014 private treatment record which noted symptoms of congestion, drainage, and left facial nerve weakness and included a list of medications prescribed to treat his symptoms, a September 2018 Primary Care Initial Evaluation Note, a September 2018 Letter from the Veteran's treating physician, a January 2019 Eye Clinic Note, a June 2019 non-prescription medication list, and a June 2019 medical treatment record. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bayles, 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.