Citation Nr: 21006914 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 17-62 268 DATE: February 5, 2021 REMANDED Entitlement to service connection for sinusitis is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Air Force from October 1956 to October 1976. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In December 2019, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. This case was previously before the Board in March 2020, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. Although the Board sincerely regrets the additional delay, another remand is necessary to ensure substantial compliance with the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for sinusitis is remanded. In its March 2020 remand, the Board directed the AOJ to afford the Veteran an opportunity to identify and provide appropriate releases for any private care providers who might possess new or additional information relating to his claimed condition, to obtain copies of any updated VA treatment records, and to obtain an addendum medical opinion regarding the etiology of his sinusitis. In July 2020, the AOJ sent the Veteran a letter asking him to identify and provide appropriate releases for any treatment records from private providers. He did not respond to that request. Regarding the Board’s directive to obtain updated VA treatment records, it does not appear that the AOJ made any attempt to obtain and associate with the claims file any updated records of VA treatment. A remand is therefore required. See Stegall, supra. The Board also finds that the AOJ did not substantially comply with its remand directive pertaining to obtaining an addendum opinion regarding the etiology of the Veteran’s sinusitis. In its March 2020 remand, the Board noted that an April 2015 private treatment record and an April 2019 private computed tomography (CT) scan report showed that the Veteran had been diagnosed with sinusitis. The Board found that the Veteran was therefore considered to have a current sinusitis disability under VA law, and instructed the VA examiner to presume that the Veteran had a current sinusitis disability during the period on appeal. The Board also noted that the Veteran had been treated for sinusitis and/or sinus congestion during service in February 1966, October 1966, and February 1970, and that he also reported a history of sinusitis at his September 1976 separation examination. The AOJ obtained an addendum opinion in September 2020. The examiner offered a negative nexus opinion. She found that the Veteran did not have a current diagnosis of sinusitis, that he had only one documented episode of maxillary sinusitis during service in 1970, and that it was successfully treated with no complaints or diagnosis of sinusitis at the Veteran’s February 1976 separation examination. The Board finds the September 2020 addendum opinion inadequate for a few reasons. First, the examiner’s finding that the Veteran does not have a current diagnosis of sinusitis is in direct contradiction to the Board’s explicit remand directive to presume that the Veteran had a current sinusitis disability for VA purposes. As noted above and in the Board’s March 2020 remand, that finding is also inconsistent with private treatment records which demonstrate that the Veteran has had a diagnosed sinusitis disability during the period on appeal. Second, the examiner’s finding that the Veteran had only one documented episode of sinusitis in service is also inconsistent with STRs showing that he was treated for bouts of sinusitis on more than one occasion during service, to include in February 1966. Third, her finding that there were no complaints of sinusitis at the Veteran’s February 1976 separation examination appears to be at least facially inconsistent with his report of a history of sinusitis at that time. Under the circumstances, a new addendum opinion is warranted. See Stegall, supra. This matter is REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed to the extent possible, arrange to provide the record on appeal to an appropriate VA clinician to determine the etiology of the Veteran’s sinusitis. The examiner should review the record. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s current sinusitis had its onset in, or it otherwise attributable to, service, to include bouts of sinusitis noted in the Veteran’s STRs. In so doing, for analytical purposes, the examiner should presume that the Veteran has, or has had, a “current” sinusitis disability for VA purposes inasmuch as his treating providers have diagnosed him with sinusitis during the period on appeal. The examiner should also consider the February 1966 and February 1970 STRs showing complaints of and treatment for sinusitis, as well as the Veteran’s report of a history of sinusitis at his September 1976 separation examination. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner selected to offer the requested opinions. A complete medical rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, 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.