Citation Nr: 21027274 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 11-33 228 DATE: May 5, 2021 REMANDED Entitlement to service connection for a respiratory disability, to include asthma, and to include as secondary to a sinus disability, is remanded. Entitlement to service connection for a bronchial disability, to include bronchitis, and to include as secondary to a sinus disability, is remanded. Entitlement to service connection for migraine headaches, to include as secondary to a sinus disability, is remanded. Entitlement to service connection for a throat disability, to include tonsillitis or pharyngitis, and to include as secondary to a sinus disability, is remanded. REASONS FOR REMAND The Veteran had active service from January 1981 to January 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). This case was initially before the Board in October 2014. In October 2014, the Board, in pertinent part, reopened the claims for migraine headaches, a throat disorder, a bronchial disorder, and a respiratory disorder and remanded these claims on the merits for further development. In December 2015, October 2016, and November 2017, the Board, in part, again remanded these matters for further development. In November 2019, the Board, in part, denied service connection for a bronchial disability and respiratory disability and remanded service connection for a throat disability and a migraine disability. The Veteran appealed the Board's November 2019 denials as to the issues of service connection for a bronchial disability and respiratory disability to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in December 2020, the Court granted a November 2020 Joint Motion for Partial Remand (JMPR) of the parties (the Secretary of VA and the Veteran), and vacated the Board's decision with respect to these issues, and remanded the case to the Board for re-adjudication consistent with the JMPR. These issues, as well as the issues of service connection for a throat disability and a respiratory disability, have now returned to the Board for further review. VA correspondence dated December 16, 2020 was issued to the Veteran and her representative, informing the Veteran that she may submit any additional argument or evidence within 90 days of the date of the letter or waive the 90 day period if she would like the Board to proceed to immediate adjudication of the appeal for the issues vacated by the Court. No response received by VA from either the Veteran or her representative within the 90 day period. Thus, the Board may proceed with appellate review. Also, additional relevant evidence, both developed by VA and submitted by the Veteran, was received subsequent to the May 2019 supplemental statement of the case issued, in pertinent part, for the Veteran's claims for service connection for a bronchial disability and respiratory disability. As a final initial matter, in November 2012, the Veteran presented testimony at a Board hearing before a Veterans Law Judge (VLJ) who has now been appointed as the Board's Chairman. A transcript of the hearing is of record. The law prohibits the Chairman from participating in a proceeding as an individual member, but she may participate in a proceeding assigned to a panel. The law also provides a veteran the option of additional hearing(s) before the additional two VLJs assigned to the panel. Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). In July 2019, the Veteran was offered another hearing before the other Veterans Law Judges assigned to decide her appeal, which she declined in August 2019. Thus, the Board may proceed with appellate review. 1. Entitlement to service connection for a respiratory disability, to include asthma, and to include as secondary to a sinus disability, is remanded. 2. Entitlement to service connection for a bronchial disability, to include bronchitis, and to include as secondary to a sinus disability, is remanded. The November 2020 JMPR found remand was warranted for the Board to specifically assess whether the VA examination opinions of record, dated in March 2016 and January 2018, adequately addressed whether the Veteran's sinus disability caused or aggravated her bronchial disability or respiratory disability. Specifically, the November 2020 JMPR explained the Board relied on the March 2016 VA opinion, which determined that Veteran did not suffer from a sinus disability yet granted service connection for a sinus disability, but did not account for this discrepancy. The November 2020 JMPR also explained the Board's consideration of secondary service connection for a bronchial and a respiratory disability based on a sinus disability failed to reconcile its prior finding that VA was unable to obtain an adequate medical opinion addressing the Veteran's sinus disability etiology. Further, the November 2020 JMPR also found the Board did not address a January 2018 VA medical opinion, which reported, in part, that the Veteran's bronchitis/respiratory disorders may be associated with sinusitis episodes and an allergic respiratory condition. Thus, as the March 2016 VA examiner relied upon a finding the Veteran did not have sinus disability as part of the rationale when addressing these claims on a secondary basis, and as the December 2015 and January 2018 VA examiner generally indicated a relationship may exist between bronchitis or respiratory disorders and sinusitis episodes and an allergic respiratory condition, a remand is warranted for addendum opinions addressing these claims as secondary to service-connected sinusitis and/or service-connected allergic rhinitis. 3. Entitlement to service connection for migraine headaches, to include as secondary to a sinus disability, is remanded. 4. Entitlement to service connection for a throat disability, to include tonsillitis or pharyngitis, and to include as secondary to a sinus disability, is remanded. The November 2019 Board remand directed, in part, as to the Veteran's claims for migraine headaches and a throat disability, VA examinations be obtained with corresponding opinions that addressed these claims on a direct incurrence basis and as secondary to a sinus disability. However, the resulting November 2019 VA opinions addressing the etiology of the Veteran's migraine headaches and a throat disability did not address the claims as secondary to service-connected allergic rhinitis. Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the November 2019 VA examiner noted the Veteran was diagnosed with pharyngitis in 1981, tonsillitis, allergic rhinitis, bronchitis and pneumonitis in 1982, but found these were less likely than not related to or aggravated by sinusitis as the Veteran had not been diagnosed with a chronic sinus disability and that her throat diagnoses preceded the diagnosis of sinusitis. However, the Veteran has also been awarded service connection for allergic rhinitis and this rationale does not address the March 2015 VA examiner's finding that the Veteran was diagnosed with allergic rhinitis in 1981 or 1982. Accordingly, an addendum opinion addressing these claims on a secondary basis is warranted. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate clinician addressing the nature and etiology of the Veteran's respiratory disability, bronchial disability, migraine headaches, and throat disability. The clinician is asked to provide a response to the following: (a.) Is it at least as likely as not that the Veteran's respiratory disability, to include asthma, was proximately due to service-connected sinusitis and/or service-connected allergic rhinitis? (b.) Is it at least as likely as not that the Veteran's respiratory disability, to include asthma was aggravated, i.e., any increase in disability, by service-connected sinusitis and/or service- connected allergic rhinitis? (c.) Is it at least as likely as not that the Veteran's bronchial disability, to include bronchitis, was proximately due to service-connected sinusitis and/or service-connected allergic rhinitis? (d.) Is it at least as likely as not that the Veteran's bronchial disability, to include bronchitis, was aggravated, i.e., any increase in disability, by service-connected sinusitis and/or service connected allergic rhinitis? (e.) Is it possible to separate the effects of the Veteran's service-connected sinus headaches from her migraine disorder? If so, please identify the signs and symptoms attributable to each disorder. (f.) Is it at least as likely as not that the Veteran's migraine headaches were proximately due to service-connected sinusitis and/or service connected allergic rhinitis? (g.) Is it at least as likely as not that the Veteran's migraine headaches were aggravated, i.e., any increase in disability, by service-connected sinusitis and/or service connected allergic rhinitis? (Continued on the next page) (h.) Is it at least as likely as not that the Veteran's throat disability, to include tonsillitis or pharyngitis, was proximately due to service-connected sinusitis and/or service connected allergic rhinitis? (i.) Is it at least as likely as not the Veteran's throat disability, to include tonsillitis or pharyngitis, was aggravated, i.e., any increase in disability, by service-connected sinusitis and/or service connected allergic rhinitis? M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals CHERYL L. MASON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Espinoza, 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.