Citation Nr: 21012225 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-05 713A DATE: March 3, 2021 REMANDED Entitlement to service connection for chronic sinusitis is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for headaches is remanded. REASONS FOR REMAND The Veteran had active duty military service from March 2007 to September 2012, including service in Southwest Asia. This matter was previously before the Board in April 2020, when it was remanded for further development. The remand required that the Veteran be afforded additional VA examinations and opinions specifically addressing the question of pre-existing disabilities aggravated in service and the Veteran’s statements regarding her symptoms and medical history. Upon review, the Board finds that the examinations obtained in September 2020 failed to address these considerations as instructed. As such, the claims must be remanded for additional VA examinations and opinions which are in compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998).   Entitlement to service connection for chronic sinusitis The April 2020 Board remand noted that the Veteran had been treated for symptoms of possible sinusitis or rhinitis or similar medical condition prior to entering service. The Board also noted that the Veteran felt her sinusitis was linked to her exposure to noxious chemicals in service. The remand instructions specifically stated that the examiner must offer an opinion as to whether a sinus condition clearly and unmistakably pre-existed her service and, if so, whether it was aggravated in service. The examiner was also instructed to address whether the disability was directly incurred in service, to include as a result of exposure to environmental hazards and/or sandstorms. The examination obtained in September 2020 did not comply with the instructions of the April 2020 Board remand. Rather, the opinion provided stated only that the Veteran first had documented complaints of allergies after service and therefore there was no nexus established. This failure to offer the opinions requested or to address the evidence as instructed is a violation of Stegall and renders the opinion inadequate for adjudicative purposes. Entitlement to service connection for hypertension The April 2020 Board remand specifically noted that the Veteran had once been found to have hypertension prior to entering service, which she attributed to a medication she was prescribed and stated had resolved when the medication was discontinued. The initial VA examination did not include an opinion on whether the disability was related to service. The remand directed that the VA examination specifically address these contentions and offer an opinion as to whether hypertension clearly and unmistakably pre-existed her military service and whether it was aggravated therein. In addition, the examiner was required to address the question of direct service connection. The VA examination and opinion obtained in September 2020 did not follow the Board remand instructions to address the question of a pre-existing condition. In addition, the opinion offered on direct service connection was internally conflicted, stating that the Veteran’s hypertension was incurred in service but was not related to her military service because there was no documented continuity. The significance of the continuity or lack of continuity was not explained with respect to the opinion that the Veteran’s hypertension should not be attributed to her military service. The opinion provided is therefore inadequate for adjudicative purposes. Entitlement to service connection for headaches The April 2020 Board remand also noted the possibility that the Veteran entered service with a pre-existing headache disability. The remand instructions included a directive that the VA examination provide an opinion as to whether the claimed headache disability clearly and unmistakably pre-existed service and whether it was aggravated therein. Further, the remand directed the VA examiner to address the connection, if any, between the Veteran’s current headache disability and her military service, her exposure to environmental hazards and sandstorms in service, and her service-connected cervical spine disability. The VA examination and opinion stated that the first documentation of headaches was in 2014 (after service separation) and indicated that there was no medical evidence that she experienced headaches in service. Not only did the examiner fail to consider the Veteran’s lay statements regarding her symptoms and history, the opinion did not include any of the required discussion of secondary service connection or of the Veteran’s experiences in service. As such, the examination is inadequate for adjudicative purposes and in violation of Stegall. The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) must provide the Veteran with new VA examinations as discussed below, and those examinations must be conducted by a qualified medical provider other than the one who conducted the September 2020 VA examination. The examiner should be provided with copies of the remand instructions and specifications regarding the items which must be addressed in the opinions furnished. Once those examinations and opinions have been completed, the AOJ shall review them to verify that the Board’s instructions have been satisfied prior to returning any denied claims to the Board. 2. On the question of entitlement to service connection for sinusitis, the Veteran shall be provided with a new examination and opinion conducted by a provider different from the one who conducted the September 2020 VA examination. The examiner shall explicitly address and provide opinions on the following questions: (a.) Did the Veteran have a condition or symptoms which are consistent with chronic sinusitis which clearly and unmistakably pre-existed her military service? If so, was there aggravation of the condition during her military service? The examiner should state whether the evidence shows that the condition was not aggravated or worsened beyond its normal course and scope on a clear and unmistakable evidence basis. (b.) IF the condition did not clearly and unmistakably exist prior to service and/or was not clearly and unmistakably worsened in service, was the condition at least as likely as not (probability 50 percent or greater) caused or incurred in service, to include as a result of exposure to noxious chemicals and/or sandstorms? (c.) IF the responses to both of the preceding questions are against the claim of service connection, the examiner shall offer an opinion as to whether the Veteran has chronic sinusitis that was at least as likely as not (probability 50 percent or greater) caused or aggravated by any service connected disability, particularly allergic rhinitis. In addressing this question, the examiner should differentiate to the extent possible the symptoms and signs of allergic rhinitis vs. chronic sinusitis. IF the examiner concludes that the Veteran’s chronic sinusitis was aggravated by a service-connected disability, the examiner must include an assessment of the baseline level of disability prior to such aggravation. Further, in providing this opinion, the examiner shall explicitly address the Veteran’s lay statements and history regarding her complaints and symptoms, including those related to exposure to noxious chemicals and sandstorms. The lack of in-service treatment records alone may not be used as a basis for rejecting the Veteran’s reports of symptoms. Also, the examiner should cite to any relevant documents in the claims file and any relevant medical literature that informs the opinions offered. 3. On the question of service connection for hypertension, the Veteran shall be provided with a new examination and opinion conducted by a provider different from the one who conducted the September 2020 VA examination. The examiner shall explicitly address and provide opinions on the following questions: (a.) Did the Veteran have a condition or symptoms consistent with hypertension which clearly and unmistakably pre-existed her military service? If so, was there aggravation of the condition during her military service? The examiner should state whether the evidence shows that the condition was not aggravated or worsened beyond its normal course and scope on a clear and unmistakable evidence basis. In addressing this question, the examiner must include a discussion of the Veteran’s statements regarding her elevated blood pressure while taking Ephedra and her reported resolution of symptoms when she ceased the medication. (b.) IF hypertension did not clearly and unmistakably exist prior to service and/or was not clearly and unmistakably worsened in service, was it at least as likely as not (probability 50 percent or greater) caused or incurred in service? (c.) IF the responses to the preceding questions are against service connection, the examiner should provide an opinion as to whether it is at least as likely as not (probability 50 percent or greater) that her hypertension was caused or aggravated by any service-connected disability, to include PTSD, chronic pain from any of her orthopedic and neurological disabilities, or as a side effect of any of the medication taken for any service-connected disability. IF the examiner concludes that the Veteran’s hypertension was aggravated by a service-connected disability, the examiner must include an assessment of the baseline level of disability prior to such aggravation. Further, in providing this opinion, the examiner shall explicitly address the Veteran’s lay statements and history regarding her complaints and symptoms. The lack of in-service treatment records alone may not be used as a basis for rejecting the Veteran’s reports of symptoms. To the extent possible, the examiner should address the conflicting statements within the opinion of the September 2020 VA examination regarding hypertension being incurred in service but not related to service based on lack of continuity. Also, the examiner should cite to any relevant documents in the claims file and any relevant medical literature that informs the opinions offered. 4. On the question of service connection for a headache disability, the Veteran shall be provided with a new examination and opinion conducted by a provider different from the one who conducted the September 2020 VA examination. The examiner shall explicitly address and provide opinions on the following questions: (a.) Did the Veteran have a condition or symptoms consistent with a headache disability which clearly and unmistakably pre-existed her military service? If so, was there aggravation of the condition during her military service? The examiner should state whether the evidence shows that the condition was not aggravated or worsened beyond its normal course and scope on a clear and unmistakable evidence basis. (b.) IF the condition did not clearly and unmistakably exist prior to service and/or was not clearly and unmistakably worsened in service, was the condition at least as likely as not (probability 50 percent or greater) caused or incurred in service? (c.) IF the responses to the preceding question are against service connection, the examiner should provide an opinion as to whether it is at least as likely as not (probability 50 percent or greater) that her headache disability was caused or aggravated by any service-connected disability, to include her cervical spine disability, her PTSD, and/or her chronic pain from any of her orthopedic and neurological disabilities, or as a side effect of any of the medication taken for any service-connected disability. IF the examiner concludes that the Veteran’s headache disability was aggravated by a service-connected disability, the examiner must include an assessment of the baseline level of disability prior to such aggravation. (Continued on the next page)   Further, in providing this opinion, the examiner shall explicitly address the Veteran’s lay statements and history regarding her complaints and symptoms. The lack of in-service treatment records alone may not be used as a basis for rejecting the Veteran’s reports of symptoms. Also, the examiner should cite to any relevant documents in the claims file and any relevant medical literature that informs the opinions offered. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Cheryl E. Handy 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.