Citation Nr: 21009857 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 10-43 233 DATE: February 23, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent prior to March 3, 2017, and in excess of 30 percent thereafter for chronic maxillary sinusitis, to include nosebleeds is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from August 1987 to December 1987 and from January 1991 to May 1991. This case comes before the Board of Veteran’s Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in a November 2017 decision, the Board denied the entitlement to a rating in excess of 10 percent prior to March 03, 2017, and in excess of 30 percent thereafter, for chronic maxillary sinusitis, to include nosebleeds. The Veteran subsequently appealed the Board’s November 2017 decision to the U.S. Court of Appeals for Veterans Claims (CAVC) and, in a July 2019 Memorandum Decision, CAVC vacated and remanded the Board’s November 2017 decision finding the Board failed to provide an adequate statement of reasons or bases for its denial and erred in finding the duty to assist fulfilled with regard to outstanding medical records. The claim returned to the Board in December 2019 where, at that time, the matter was remanded to comply with the terms of the July 2019 CAVC Memorandum Decision. The case has since returned to the Board for appellate consideration. Entitlement to a disability rating in excess of 10 percent prior to March 3, 2017, and in excess of 30 percent thereafter for chronic maxillary sinusitis, to include nosebleeds is remanded. Unfortunately, the Board finds additional remand is necessary to ensure compliance with the Court’s direction within the July 2019 CAVC Memorandum Decision and the Board’s prior December 2019 remand. The Board previously remanded the Veteran’s claim in December 2019 for the RO to acquire private medical records, including those from Dr. W. and the facility at which nasal surgery was performed. Afterwards, the Veteran was to be afforded a new VA examination to determine the current nature and severity of his chronic maxillary sinusitis without consideration of any relief provided by medication (since those effects are not specifically contemplated by the rating criteria). See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). On remand, the Veteran was afforded a VA examination in March 2020, but the opinion rendered is inadequate. In particular, the March 2020 VA examiner noted, in the Veteran’s medical history, that he underwent nasal surgery sometime in 2017. Later in his report, the examiner noted the Veteran had not undergone sinus surgery. The ambiguity is not explained or reconciled and, indeed, the Veteran did in fact undergo nasal surgery in 2016, which is documented by surgery center notes from Dr. W dated in August 2016, which state the Veteran underwent “septoplasty with SMR turbinates” due to “nasal airway obstruction”. The Board notes, the March 2020 examiner did provide an addendum medical opinion in August 2020. However, this specific ambiguity was not reconciled, and the Veteran’s August 2016 nasal surgery was never addressed. Thus, it is entirely unclear whether the examiner relied on accurate facts in rendering the medical opinion in this case and for these reasons, the Board finds the examination and addendum opinion inadequate to base a decision. See Reonal v. Brown, 5 Vet.App. 458, 460-61 (1993) (medical opinion based on inaccurate factual premise may properly be rejected as non-probative). Thus, a new VA examination that adequately considers all medical evidence of record, to include any nasal surgery, should be obtained and considered given the prior Board and CAVC directives, as detailed below. The matters are REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any outstanding private or VA treatment records relevant to his claimed disabilities. After obtaining necessary authorization from the Veteran, all outstanding records should be obtained, to include all updated VA medical treatment records. 2. After obtaining any outstanding records, request an addendum VA medical opinion for the Veteran’s chronic maxillary sinusitis to ascertain the current nature and severity of his service-connected condition without consideration of any relief, if any, provided by medication. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner is also asked to consider and address all medical evidence in the claims file including: (a.) The August 2016 surgical note for nasal surgery from Dr. W. (b.) All reported lay descriptions of the Veteran’s symptoms, to include nosebleeds and headaches. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.