Citation Nr: 21024777 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 12-28 664 DATE: April 26, 2021 REMANDED Entitlement to a rating in excess of 10 percent for the service-connected allergic rhinitis with deviated septum is remanded. REASONS FOR REMAND The Veteran had active duty service in the United States Army from July 1969 to July 1970. This case is before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In September 2013, the Veteran testified at a video conference hearing before a Veterans Law Judge (VLJ). A transcript of the testimony is associated with the claims file. In April 2015 and April 2017, the Board remanded the case to the RO for further development. By the time the case was returned to the Board following the April 2017 Board remand, the Veterans Law Judge (VLJ) who presided over the September 2013 hearing was no longer employed by the Board. VA law requires that the Veterans Law Judge (VLJ) who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. Accordingly, in September 2018 correspondence, the Board notified the Veteran that his case was reassigned to another VLJ and afforded the Veteran an opportunity to request another Board hearing if he so chose. In October 2018 correspondence, the Veteran indicated that he did not wish to appear for another Board hearing. Thus, the Board will proceed with adjudicating the issues on appeal. The Board denied entitlement to a rating in excess of 10 percent for allergic rhinitis with deviated septum in November 2018 and the Veteran appealed the decision to the Court of Appeals for Veteran’s Claims (Court). In November 2020, the Court, pursuant to a Joint Motion for Partial Remand (JMPR), vacated the Board’s decision and remanded to the Board. The parties agreed that the Board erred in relying on a June 2017 VA examination that found the Veteran did not have any polyps. Furthermore, the parties agreed that the portion of the Board’s decision granting the claim for entitlement to a 50 percent disability rating for the service-connected sinusitis represents a favorable finding that cannot be disturbed. Entitlement to a rating in excess of 10 percent for service-connected allergic rhinitis with deviated septum is remanded. The Veteran contends that his allergic rhinitis is more severe than contemplated by the assigned disability rating. A June 2017 VA examination reflected a diagnosis for allergic rhinitis with deviated septum. The examiner found there was no evidence of obstruction of nasal passage greater than 50 percent on both sides due to rhinitis, complete obstruction on the left and right side due to rhinitis, nor nasal polyps; however, there was a finding for permanent hypertrophy. The examiner opined that “the allergic rhinitis disability is less than likely related to the manifested by polyps of the nasal passages however the allergic rhinitis is residuals of the septoplasty in 2009.” The examiner also indicated that the Veteran has permanent hypertrophy of the nasal turbinates without any bilateral nasal passage obstruction. The Board finds the June 2017 VA examination is inadequate for rating purposes. First, the examiner indicated that there was no evidence of nasal polyps; however, a May 2008 radiology report reflects a CT nasal scan demonstrating a 1cm nodule change in lateral inferior aspect of the right maxillary antrum, considered to be due to polyp or retention cyst. See January 2019 Medical Treatment Record. Second, as noted by the parties to the JMPR, based on the examiner’s conclusion that the allergic rhinitis disability is less than likely related to the manifestation by polyps of the nasal passages, it is unclear whether the examiner is implying that polyps are present or if they could be due to the allergic rhinitis. Accordingly, a remand is necessary to obtain a VA examination to determine whether the Veteran has polyps present in his nasal passages and whether such polyps are related to his allergic rhinitis. The matters are REMANDED for the following action: 1. Provide the Veteran with a VA examination to determine the current severity of the Veteran’s allergic rhinitis with deviated septum. The claims file must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. The examiner is asked to provide an opinion as to whether the Veteran currently has nasal polyps associated with his allergic rhinitis disability (or any other disorder that manifests similar symptoms). The examiner must consider the statements made by the June 2017 VA examiner regarding the allergic rhinitis disability being less likely related to or manifested by polyps of the nasal passages. The examiner must also consider the May 2008 radiology report reflecting a CT nasal scan demonstrating a 1cm nodule change in lateral inferior aspect of the right maxillary antrum considered to be due to polyp or retention cyst. A clear rationale for any opinion reached must be provided. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Asfaw, 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.