Citation Nr: 21021561 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 15-07 331 DATE: April 13, 2021 REMANDED Entitlement to service connection for a sinus condition, to include as secondary to service-connected traumatic deviated nasal septum status post septoplasty, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from April 1981 to July 1991. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of this hearing is of record. The Board previously remanded this matter in July 2018 and September 2020 for additional development. Unfortunately, as discussed below, the Board is not satisfied that there has been substantial compliance with the most recent remand instructions; therefore, the matter must be remanded once again.  See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for a sinus condition, to include as secondary to service-connected traumatic deviated nasal septum status post septoplasty, is remanded. The Veteran seeks entitlement to service connection for a sinus condition, which he contends first developed following an in-service traumatic nasal injury, which resulted in a deviated septum. The Veteran testified at his April 2018 Board hearing that after this injury, his sinuses became clogged and it became difficult to breathe through his nose. After undergoing a septoplasty in 1990, the Veteran asserts that he was told he had chronic nasal obstruction. Since his surgery, the Veteran states that he has had continuous sinus problems, including a runny and bleeding nose and nasal congestion. As an initial matter, the Board notes that when the Veteran filed his claim for service connection in October 2010 he characterized his claimed disability as “sinus problems.” Thereafter, the RO adjudicated the Veteran’s claim for service connection for sinusitis based on the medical evidence submitted at that time, which showed a diagnosis of chronic sinusitis. However, throughout the duration of the appeal, the Veteran has been diagnosed with various sinus conditions, to include chronic maxillary sinusitis with intermittent epistaxis, bilateral maxillary sinus polyps, chronic allergic sinusitis, and allergic rhinitis. The medical and lay evidence of record documents that the Veteran has consistently reported experiencing chronic nasal obstruction, as well as intermittent nasal bleeding, headache, and pain in the sinus area. In light of the foregoing, the Board has decided to recharacterize the Veteran’s claim to encompass all currently-diagnosed sinus conditions, to include sinusitis and allergic rhinitis. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that the scope of a claimant’s claim includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). In the September 2020 remand, the Board found that the evidence of record does not contain an adequate medical opinion addressing the Veteran’s claim, to include whether he is entitled to secondary service connection. As such, on remand, the Board directed the RO to obtain a supplemental medical opinion from a VA examiner that adequately addresses the nature and etiology of the Veteran’s sinusitis. A medical opinion was obtained in December 2020. However, upon review of the Veteran’s medical history, the VA examiner concluded that there is insufficient evidence to warrant or confirm a current diagnosis of acute sinusitis with residuals or chronic sinusitis. Based on his review of a 1994 x-ray report and a 1995 CT scan, the VA examiner concluded that the Veteran’s earlier diagnosis of sinusitis was an acute event and instead attributed his current symptoms to sinus polyps and allergic rhinitis. The examiner declined to provide a medical opinion with regard to sinusitis, but stated that the Veteran’s allergic rhinitis is less likely than not caused by, related to, or aggravated beyond its natural progression by military service or a service-connected condition. The examiner did not provide a rationale for this conclusion. The Board finds the December 2020 VA medical opinion to be inadequate. First, the VA examiner’s opinion that the Veteran does not have a current diagnosis of sinusitis was based on outdated imaging reports and ignored more recent VA examinations, in February 2012 and October 2019, in which a diagnosis of sinusitis was rendered by VA examiners. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Moreover, the examiner failed to support his negative nexus opinion for allergic rhinitis with a medical rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). In light of the above, the Board finds that the record still does not contain a medical opinion that is sufficient to fairly decide the Veteran’s service connection claim. As such, the claim must be remanded once again because the RO did not comply with the Board’s prior remand directives to obtain an adequate medical opinion on the Veteran’s behalf. See Stegall, 11 Vet. App. at 268. On remand, a medical opinion must be obtained, if possible, from a VA otolaryngologist, that is adequate for the Board to make an informed decision on the Veteran’s claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). Finally, the evidence of record indicates that the Veteran has received treatment for his sinus condition from a private physician, Dr. J.H., since February 2010. However, the Board notes that these relevant medical records have not been requested or associated with the Veteran’s claims file. As this evidence may be pertinent to the Veteran’s service connection claim, on remand, the RO must take appropriate steps to obtain these records. Accordingly, the matter is REMANDED for the following actions: 1. Contact the Veteran and request that he provide information as to any outstanding private treatment records relevant to his appeal, to include records from Dr. J.H. at OccMed Solutions, LLC from February 2010 to the present. After obtaining the necessary authorization from the Veteran, the RO must make reasonable efforts to obtain any identified records. 2. Then, obtain an addendum opinion from a VA physician of appropriate expertise (i.e. an otolaryngologist) discussing the nature and etiology of the Veteran’s sinus conditions(s), to include, but not limited to, sinusitis and allergic rhinitis. An in-person examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety, to include a copy of this REMAND, and the review should be noted in the examination report. Thereafter, the VA examiner is asked to provide a fully-articulated medical opinion addressing the following: (a) Identify all currently-diagnosed sinus conditions. If the examiner determines that the Veteran does not have a current diagnosis of acute sinusitis with residuals or chronic sinusitis, this finding must be supported by a fully-articulated medical rationale. (b) For any currently-diagnosed sinus condition, is it at least as likely as not (50 percent or greater probability) that the condition was incurred in or caused by any in-service disease, event, or injury? (c) For any currently-diagnosed sinus condition, is it at least as likely as not (50 percent or greater probability) that the condition is caused by the Veteran’s service-connected traumatic deviated nasal septum status post septoplasty? (d) For any currently-diagnosed sinus condition, is it at least as likely as not (50 percent or greater probability) that the condition is aggravated by (increased in severity beyond its natural progression) his service-connected traumatic deviated nasal septum status post septoplasty? The examiner is reminded that the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. In providing the requested opinion, the examiner must specifically consider and address: (i) the Veteran’s lay assertions as to the in-service onset and continuity of sinus symptoms; (ii) the April 2018 medical opinion provided by Dr. J.H.; and (iii) the May 2018 sinusitis disability benefits questionnaire (DBQ) completed by Dr. J.H. The examiner is advised that the Veteran is competent to report his medical history, including the onset of symptoms, and such reports must be acknowledged and considered in formulating any opinion. The Veteran’s lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the claimed disability and military service. The examiner must provide a complete rationale for any opinion offered, citing to the examiner’s own expertise, medical principals, and/or evidence in the Veteran’s claims file, when necessary, to support the conclusion reached.  If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).   The examiner is reminded that failure to comply with the directives outlined herein will render the opinion inadequate and will result in further remand of the Veteran’s claim. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Melissa Barbee, 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.