Citation Nr: 21027943
Decision Date: 05/07/21	Archive Date: 05/07/21

DOCKET NO. 16-49 334
DATE: May 7, 2021

REMANDED

Service connection for chronic sinusitis is remanded.

REASONS FOR REMAND

The Veteran had active duty in the Army from July 1988 to December 1988, February 2006 to June 2007, and May 2010 to July 2011.  

In August 2019, the Veteran testified before the undersigned.  A copy of the transcript is associated with the claims file.  

The Board of Veterans' Appeals (Board) denied the claim in a November 2019 decision.  The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court).  In December 2020, the Court issued a Joint Motion for Remand (JMR) for the reasons detailed below.

1. Service connection for chronic sinusitis is remanded.

In the December 2020 JMR, the Court found the Board had erred in its November 2019 denial of service connection for chronic sinusitis because it had not provided an adequate statement of reasons or bases for the finding that the Veteran's chronic sinusitis clearly and unmistakably preexisted service and was not aggravated by service.  In this regard, the Board had failed to distinguish between the current diagnosis of chronic sinusitis and the bouts of acute sinusitis noted in the Veteran's pre-service records.  

Additionally, the Board erred when it relied on a May 2014 and an October 2014 VA addendum opinion which stated that the entries of sinusitis in the Veteran's service treatment records did not represent aggravation beyond natural progression but rather, was expected of a chronic condition; and then did not discuss the Veteran's testimony that he began taking medication for his chronic sinusitis.

It must be determined whether the presumption of soundness is rebutted by clear and unmistakable evidence.  A remand is necessary for an opinion as to whether it is clear and unmistakable that the Veteran had acute or chronic sinusitis which pre-existed service and whether it is clear and unmistakable that any such disorder was not aggravated or that any increase was due to natural progression.  See 38 U.S.C. § 1111; Horn v. Shinseki, 25 Vet. App. 231, 234 (2012).

The Board notes to rebut the presumption of sound condition for conditions not noted at entrance into service, VA must show by clear and unmistakable evidence both (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service.  VAOPGCPREC 3-03 (July 16, 2003), 70 Fed. Reg. 23027 (May 4, 2005).

The matters are REMANDED for the following action:

1. Obtain an addendum opinion from an examiner with suitable expertise.  The Veteran's claims folder, including a copy of this REMAND, must be provided to the examiner.  The examiner is requested to address the following:

(a) Whether the Veteran suffered from acute sinusitis or chronic sinusitis prior to his active duty periods.

(b) Whether it is clear and unmistakable (obvious, manifest, and undebatable) that the pre-existing chronic or acute sinusitis WERE NOT aggravated (i.e. permanently worsened) during service or whether it is clear and unmistakable (i.e. obvious, manifest, and undebatable) that any increase in service was due to natural progress.

(c) If not, the examiner must opine as to whether the Veteran's acute or chronic sinusitis is at least as likely as not (i.e. 50 percent or greater) began in or related to active duty.

All opinions submitted must contain sufficient rationale.

2. Readjudicate the appeal.

 

 

L. M. BARNARD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Lee

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.