Citation Nr: 21024285 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 10-98 939A DATE: April 22, 2021 REMANDED Entitlement to service connection for sinus condition, including as secondary to service-connected residuals of traumatic brain injury, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1952 to September 1965. The Veteran died in November 2016 and the Appellant is his surviving spouse. The Appellant is the substituted claimant for this appeal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2008 rating decision. In September 2020 and January 2021, the Board remanded this matter for further development. Unfortunately, additional remand is necessary to ensure compliance with the Board’s directives. 1. Entitlement to service connection for sinus condition, including as secondary to service-connected residuals of traumatic brain injury, is remanded. In January 2021, the Board remanded this matter to obtain additional VA medical opinion regarding whether the Veteran’s sinus conditions were related to service or secondary to his service-connected traumatic brain injury residuals. The Board explained that the November 2020 VA examiner’s opinion regarding direct service connection lacked an adequate rationale. The Board explained that the June 2020 VA examiner’s opinion that the Veteran’s rhinitis condition was less likely than not caused by his traumatic brain injury did not address the issue of aggravation. The Board also noted that the opinion was insufficient because it failed to consider the Veteran’s prior medical history of additional sinus conditions, including a January 1997 diagnosis of sinusitis. In a March 2021 opinion, the November 2020 VA examiner opined that it is less likely than not that the Veteran’s sinus conditions were caused by or aggravated by his service-connected traumatic brain injury. The VA examiner noted the May 2015 diagnosis of vasomotor rhinitis and explained that there was no clinical diagnosis of sinusitis based on the May 2015 treatment record. The VA examiner explained that there was no evidence that the Veteran was diagnosed with or ever met the diagnostic criteria for chronic sinusitis. The VA examiner explained that chronic rhinosinusitis may begin abruptly as acute sinusitis that fails to resolve or develop slowly and insidiously over months or years. The VA examiner explained that while the Veteran may have had episodes of acute sinusitis that resolved with treatment and occasional rhinorrhea, there was no evidence that TBI caused or permanently aggravated sinusitis beyond its normal progression. However, secondary service connection is available for any incremental increase in disability in non-service-connected disabilities resulting from service-connected disabilities regardless of its permanence. See Ward v. Wilkie, 31 Vet. App. 233, 240-41 (2019). The VA examiner failed to address aggravation under the proper standard. In addition, the VA examiner explained that there was no evidence the Veteran was ever diagnosed with or met the diagnostic criteria for chronic sinusitis but did not address his own November 2020 statement that review of the Veteran’s medical record shows the Veteran was diagnosed with chronic sinusitis many years after service nor the Veteran’s 1997 diagnosis of sinusitis. The VA examiner also failed to provide an opinion as to whether the Veteran’s sinus conditions had an onset in service or were otherwise related to service. For the above reasons, remand is necessary to obtain additional VA medical opinion regarding whether the Veteran’s sinus conditions were related to service or secondary to his service-connected traumatic brain injury. See Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Ask the appropriate examiner to review the Veteran’s file. The examiner should identify all sinus-related disability the Veteran experienced during the claims period, even if resolved before his death. For each disability, the examiner should opine regarding whether it is at least as likely as not (a 50 percent or greater probability) that the disability: (a) had an onset in service or is otherwise related to service; or (b) is caused by or aggravated by his service-connected traumatic brain injury residuals. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected condition. The examiner should consider all medical and lay evidence of record. The examiner should specifically address the Veteran’s diagnoses of sinusitis as shown in his private treatment records in the 1990s and 2000s, the November 2020 VA examiner’s statement that the Veteran was diagnosed with chronic sinusitis, and the Veteran’s report of a frequent runny nose since his craniotomy. If the Veteran’s reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). The examiner is asked to explain the reasons behind any opinions expressed. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 2. 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 A. Purcell 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.