Citation Nr: 21011749 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-24 891 DATE: March 2, 2021 REMANDED Entitlement to service connection for sinusitis is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1994 to November 1994 and from November 1996 to November 2000.  This case has a long procedural history. Most recently this case was remanded by the Board in May 2020 for additional developments. There has not been substantial compliance with the remand directives and the claim must be remanded again.  Stegall v. West, 11 Vet. App. 268 (1998).  Entitlement to service connection for sinusitis is remanded. The claim must be remanded again to obtain a medical opinion that allows that Board to properly consider the presumption of soundness. The December 2020 VA opinion obtained after the most recent remand is inadequate. There were no defects noted on enlistment for the first period of active duty and the Veteran is presumed sound. The October 1996 enlistment examination at the start of the second period of service did not include a diagnosis of sinusitis or identify any related defect; however, on the contemporaneous Report of Medical History, the Veteran checked “yes” to sinusitis. The examiner addressed that answer and noted “takes Tylenol occasionally for nasal congestion (sinusitis?).” On a September 2000 Report of Medical History completed as part of his separation examination, the Veteran answered “yes” to colds and sinusitis. He explained that for the past six years he’s been getting more frequent cold and he has “always had problems with sinuses but now it’s frequent.” The opinion on remand must address whether the evidence shows that a sinus disability existed prior to the second period of service and, if so, whether it was aggravated during that period of service. The opinion must consider that on a September 2000 Report of Medical History completed as part of his separation examination, the Veteran answered “yes” to colds and sinusitis. He explained that for the past six years he’s been getting more frequent cold and he has “always had problems with sinuses but now it’s frequent.” The December 2020 VA opinion obtained on remand is inadequate regarding the Veteran’s first period of active duty service. The examiner provided a negative nexus opinion regarding his first period of service based on a rationale that the Veteran’s sinusitis had preexisted that period of service. However, as specifically noted by the Board in the prior May 2020 remand, the Veteran is presumed sound at entry to his first period of service, and there has been no finding that the sinusitis clearly and unmistakably preexisted his first period of active duty. The matters are REMANDED for the following action: Obtain a medical opinion from the December 2020 VA examiner (or from another appropriate examiner if the December 2020 VA examiner is unavailable) on the likely etiology of the sinusitis. Copies of all pertinent records must be made available to the examiner for review. Based on a review of the record, the examiner must address the following: (a) Did the Veteran’s sinusitis clearly and unmistakably (i.e., it is undebatable) exist prior to his second period of active duty from November 1996 to November 2000? The examiner should consider and discuss as necessary the October 1996 enlistment examination and related Report of Medical History. (b) If the answer to (a) is yes, does the evidence clearly and unmistakably show (i.e., it is undebatable) that the sinusitis was not aggravated by the second period of active service or that any increase in disability was due to the natural progression of the condition? Aggravation is defined as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms beyond its natural progression. The examiner must identify such evidence with specificity. (c) If the answer to either (a) or (b) is no, is it at least as likely as not that the Veteran’s hearing loss had its onset in service, in either the first (May 1994 to November 1994) or second (November 1996 to November 2000) period of service? The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Eric Struening 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.