Citation Nr: 21024934 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 13-18 754A DATE: April 26, 2021 REMANDED Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for nasal cancer is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1963 to October 1965, from July 1977 to July 1980, and from June 1981 to June 1996. The Veteran provided testimony before a Veterans Law Judge (VLJ) in July 2017. A transcript of that hearing is in the claims file. The VLJ who held this hearing has since retired from the Board, the Veteran was offered the opportunity to appear at a new hearing before a different VLJ. He declined a new Board hearing in an April 2021 correspondence. As such, the Board will proceed with the appeal. See 38 U.S.C. § 7107 (c); 38 C.F.R. §§ 19.3 (b), 20.707. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for sinusitis is remanded. 2. Entitlement to service connection for nasal cancer is remanded. The Veteran seeks entitlement to service connection for sinusitis and nasal cancer. He contends that his current sinusitis disorder had an onset during his period of service, and he has continued to experience recurrent sinusitis episodes since his period of service. See Hearing Transcript (July 2017). He reports that he “suffered with sinusitis throughout [his] military career and was seen for symptoms at least once at most of the places [he] was assigned, if not all of them,” and after his separation from service, he did not seek treatment but simply “endured the symptoms.” See VA 21-4138 Statement In Support of Claim (November 2012). The Veteran asserts that his recurrent episodes of sinusitis during his period of service also mark the first manifestations of his current nasal cancer. In the alternative, the Veteran contends that his recurrent episodes of sinusitis have resulted in the development of his nasal cancer. See Form 9 (March 2017) and Hearing Transcript (July 2017). Service treatment records (STRs) document that the Veteran was treated for sinus-related issues on several occasions, which included being assessed with sinusitis in April 1993. (See, e.g., January 10, 1995; January 30, 1995; March 31, 1995; and April 30, 1995 STRs). See STR-Medical (May 2015). The post-service treatment records reflect the Veteran’s reported medical history of recurrent sinus-related problems since service, albeit he did not seek treatment for persistent sinus-related symptoms until July 2012. A March 1997 VA treatment record reflects that the Veteran presented with complaints of post-nasal drainage, throat irritation, and congestion, and he reported that “this happens every year around this time.” See CAPRI (June 2013). A July 2012 VA treatment record shows the Veteran reported a history of chronic sinusitis and with symptoms being worst when he was stationed in South Carolina, Texas, and Colorado. See CAPRI (October 2018). These VA treatment records are dated prior to the initiation of his service connection claims in August 2012. For reasons explained below, the Board finds that remand is necessary. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). As an initial matter, the Board notes that, in October 2017, the claim was remanded for, among other things, a VA medical opinion. The claim was again remanded in April 2020 for a supplemental VA medical opinion, and the examiner was specifically instructed to consider the Veteran’s lay statements that he experienced sinus-related issues, including diagnosed sinusitis, during and following his military service. In the December 2020 VA medical opinion report, the VA examiner concluded that the Veteran’s sinusitis and nasal cancer are less likely than not related to in-service injury or disease based on the lack of documented ongoing complaints in the 15 years following separation until 2012. However, the medical opinion does not reflect any meaningful consideration of lay statements indicating that the Veteran has been experiencing recurrent episodes of sinusitis since service. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) (“the VA examiner’s failure to consider [the Veteran’s] testimony when formulating her opinion renders that opinion inadequate.”). The December 2020 VA medical opinion provides no clear explanation as to why the lay statements of record are insufficient to establish recurrent episodes of sinusitis since service and whether, accepting such statements of recurrent episodes of sinusitis, demonstrates that any current sinus disability is at least as likely as not related to sinus issues in service. Given the above, the Board may not rely upon the December 2020 VA medical opinion in its present form and, therefore, finds the opinion is inadequate for adjudicative purposes. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, as the Board has a duty to ensure compliance with the terms of its remand, remand is again required. See Stegall, 11 Vet. App. 268. The Board additionally finds that remand is also necessary to ensure that VA has met its duty to assist the Veteran in procurement of his service treatment records. 38 U.S.C. § 5103A (c), 38 C.F.R. § 3.159 (c)(1). The record does not contain the Veteran’s STRs from his periods of service from October 1963 to October 1965 and from July 1977 to July 1980. While the record contains a July 2009 VA memorandum of a formal finding of unavailability of a complete set of the Veteran’s STRs, VA subsequently took additional steps to retrieve the missing STRs in May 2015. Only the STRs from the Veteran’s third period of service were successfully associated with the claims folder, and the record does not contain a formal finding as to the unavailability of the Veteran’s STRs from his first and second periods of service has not been issued following the additional development. Therefore, the Board finds that a remand is necessary for the issuance of a formal finding of unavailability of additional STRs and notification to the Veteran. 3. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. The Veteran seeks entitlement to a TDIU. He contends that he is no longer able to work due to his service-connected disabilities. The Veteran reports that he is no longer able to perform physical employment because of the severity of his back and bilateral lower extremity disabilities, and all his disabilities as well as his sinus disorders have impacted his ability to perform all types of employment. See Hearing Transcript (July 2017). There is medical evidence that the Veteran’s nasal cancer has impacted his ability to work. See VA Examination (May 2013). Since a decision on the remanded issues of entitlement to service connection for sinusitis and nasal cancer could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. A remand of the claim for TDIU is required. The matters are REMANDED for the following action: 1. If the Veteran’s additional STRs from his periods of service from October 1963 to October 1965 and July 1977 to July 1980 are unable to be located, then issue a formal finding of unavailability of the STRs and notify the Veteran pursuant to 38 C.F.R. § 3.159 (e). 2. Obtain a supplemental VA medical opinion on the etiology of the Veteran’s claimed sinusitis and nasal cancer. The claims file, including a complete copy of this remand, must be made available to the clinician for review. Then, the examiner must address the following: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s sinusitis was incurred in or is otherwise etiologically related to his military service, including his documented in-service sinus issues. (b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s nasal cancer was incurred in or is otherwise etiologically related to his military service, including his documented in-service sinus issues. In support of this opinion, the examiner is requested to address the Veteran’s service treatment records and post-service treatment records, as well as his lay statements, which all indicate that he experienced sinus related issues, including diagnosed sinusitis, during and following his military service. If there is any medial reason to accept or reject the proposition that the Veteran had recurrent sinus-related symptoms since service, this should be noted. The Board notes that the examiner may not use the lack of contemporaneous evidence in the Veteran’s medical records as the sole basis for a negative opinion. (c.) If the examiner opines that the Veteran’s sinusitis is at least as likely as not incurred in or is otherwise etiologically related to his service (i.e. service-connected), then is it at least as likely as not (50 percent probability or more) that the Veteran’s nasal cancer is proximately due to or aggravated by his [service-connected] sinusitis? The examiner should note that the term “aggravated by” refers to “any increase in severity” of a nonservice-connected disability that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the nonservice-connected disability. If the examiner opines that the Veteran’s sinusitis has aggravated his nasal cancer, then the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. 3. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Murray 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.