Citation Nr: A21019459 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 200420-83406 DATE: December 7, 2021 ORDER Entitlement to service connection for maxillary sinus retention is granted. REMANDED Entitlement to service connection for vertigo is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his maxillary sinus retention condition is at least as likely as not related to his service. CONCLUSION OF LAW The criteria for service connection for maxillary sinus retention are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1968 to August 1972. The issues are on appeal under the Appeals Modernization Act (AMA) from a rating decision issued in February 2020. The Veteran submitted a notice of disagreement in April 2020 electing the hearing lane. The Veteran testified at a Board hearing in July 2021. A transcript of that hearing has been associated with the claims file. Entitlement to service connection for maxillary sinus retention is granted. The Veteran contends that he has a current diagnosis of maxillary sinus retention which is causally related to his in-service sinus related problems, including colds and sinus infections. See July 2021 hearing transcript. The Board concludes that the Veteran has a current disability that is related to in-service stressors. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Veteran was diagnosed with maxillary sinus retention by his private provider in November 2016. See medical treatment record, non-government facility, received December 2019. The Veteran testified that his sinus condition began as sinus infections during active service. He testified that he suffered sinus infections every 3-4 months during service and that they continued with similar regularity after service. The Veteran's service treatment record (STR) shows treatment for cough and chest pain in January 1969, with a throat culture taken. The Veteran's March 1969 STR also shows treatment for chills, fever, and cough. The Veteran's October 1969 shows reported headaches, soreness of right nostril, and congestion. The Veteran's private provider provided a nexus statement in September 2021 noting that the Veteran's current diagnosis was related to his sinus condition which began in service. The provider noted the review of the Veteran's in-service sick calls. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current maxillary sinus retention is causally related to in-service sinus problems. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for maxillary sinus retention is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for vertigo is remanded. The Board must remand AMA appeals to the Agency of Original Jurisdiction to correct pre-decisional duty to assist errors. 38 C.F.R. § 20.802 (a). Once the VA undertakes to provide a veteran with an examination, it has a duty to ensure it is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In secondary service connection claims, a medical opinion is inadequate if it does not address both causation and aggravation of the nonservice-connected condition. El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013). The Veteran contends that he has a current diagnosis of vertigo which is secondary to his service-connected tension headaches or, in the alternative, secondary to his service-connected bilateral hearing loss and/or tinnitus. See July 2021 hearing transcript. The issue of entitlement to service connection for vertigo, to include as secondary to a service-connected headache, bilateral hearing loss, and/or tinnitus, is remanded to correct a duty to assist error that occurred prior to the February 2020 rating decision on appeal. The Board cannot make a fully informed decision on the issue of entitlement to service connection for vertigo, as secondary to already service-connected headaches, bilateral hearing loss, and/or tinnitus, because no VA examiner has opined whether the vertigo was proximately due to, or aggravated beyond its natural progression by, the aforementioned service-connected disabilities. The Veteran was afforded a VA examination in February 2020, prior to the rating decision on appeal. However, this medical opinion does not provide an adequate rationale or opinion regarding whether the Veteran's vertigo is caused or aggravated by his service-connected headaches, bilateral hearing loss, and/or tinnitus. The Veteran submitted a March 2019 private treatment record which suggested a link between the Veteran's vertigo and hearing loss; however, without rationale or discussion. The Veteran also submitted private November 2019 disability benefits questionnaire (DBQ) which indicated that the Veteran's vertigo was related to headaches; however, without rationale or discussion. The examiner did not address secondary service connection despite these indications. The February 2020 VA examination is therefore inadequate. Thus, a pre-decisional duty to assist error was committed and the Board must remand for further consideration of the Veteran's claim. The matter is REMANDED for the following action: A medical professional is requested to provide the following opinion: (a.) Is the Veteran's vertigo at least as likely as not (i.e., 50 percent or greater probability) proximately due to or aggravated beyond its natural progression by service-connected tension headaches? (b.) Is the Veteran's vertigo at least as likely as not (i.e., 50 percent or greater probability) proximately due to or aggravated beyond its natural progression by service-connected bilateral hearing loss? (c.) Is the Veteran's vertigo at least as likely as not (i.e., 50 percent or greater probability) proximately due to or aggravated beyond its natural progression by service-connected tinnitus? A complete rationale must be provided for all opinions offered. If any opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence would potentially allow for a more definitive opinion. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mookim, Hope P. 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.