Citation Nr: 21031509 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-51 447 DATE: May 24, 2021 REMANDED Entitlement to service connection for a sinus disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1969 to July 1990. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In July 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In October 2019 and July 2020, the Board remanded the claim for further evidentiary development. Entitlement to service connection for a sinus disability. The Veteran contends that his sinus disability had its onset in service, including severe sinus headaches. See Hearing Transcript (July 2019). The Veteran's representative theorized that the Veteran's sinus disability stemmed from flying up in high altitudes in unpressurized AC-130 cabins. Id. Most recently, in July 2020, upon finding the February 2020 VA medical opinion inadequate, the Board remanded the Veteran's claim for an addendum medical opinion to determine the nature and etiology of any sinus disability. 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). Although a November 2020 VA examination, a February 2021 VA addendum and a March 2021 VA examination with a medical opinion were obtained, the Board finds that they are inadequate. First, the November 2020 VA examination, a February 2021 VA addendum and a March 2021 VA examination with a medical opinion show that Veteran did not have a diagnosis of a sinus disability. See C&P Exam (November 2020, February 2021 & March 2021). However, the Veteran's medical records show sinus disability diagnoses, including allergic rhinitis as indicated at the February 2020 VA examination. See C&P Exam (February 2020). The November 2020 VA examination, February 2021 VA addendum, and March 2021 VA examination with a medical opinion provided no explanation for the conclusion that there was no sinus diagnosis or as to whether the previously diagnosed allergic rhinitis had resolved. Importantly, service connection may be granted for a disability shown and resolved during the appeal period. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the "current disability" requirement is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim" and reversing Board's denial of service connection where disability resolved itself during pendency of appeal). Second, the March 2021 VA examination with a medical opinion presents with the exact inadequacies that the Board identified in its prior remand in July 2020. See Stegall, supra. The March 2021 VA examination with a medical opinion is inadequate because the essential rationale is not discernable. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). In this regard, although the opinion points to the lack of objective data, including absence of objective findings of any sinus disability at the time of the examination, the opinion does not reflect any consideration of the medical history or the Veteran's reports. It is noted that a medical opinion or "medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Furthermore, the opinion is inadequate, just as was the February 2020 VA examination, because it does not provide a reasoned explanation as to why resorting to speculation is indicated. See Stegall, supra. In this instance while the opinion notes the lack of definitive objective measures, it does not show a reasoned explanation that no opinion is possible without resort to mere speculation. See Jones v. Shinseki, 23 Vet. App. 382, 391 (2010). Lastly, the November 2020 VA examination, February 2021 VA addendum, and March 2021 VA examination/ opinion are inadequate because they again do not reflect a meaningful discussion of the Veteran's lay statements, despite the Board's specific instructions in July 2020 to do so. 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."); see Stegall, supra. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that it is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As the VA medical opinions are not adequate, remand is reqired. 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). Additionally, remand is necessary to obtain outstandign records. Tthe Board also notes a response to a Social Security Administration (SSA) inquiry, indicating that the Veteran receives SSA compensation. On remand, the Agency of Original Jurisdiction should obtain those records. 38 U.S.C. § 5103A(c)(3); Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). Also, the Veteran reported treatment with private providers. While the Veteran was previously notified that he should complete VA Form 21-4142 for all non-VA medical providers to enable VA to obtain these records or provide those records to VA himself, on remand, the Veteran should be given another opportunity to do so. See 38 U.S.C. § 5103A (b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016).The Veteran is reminded that VA's duty to assist is not a one-way street, but rather he is expected cooperate in the development of his claim, which includes completing requested forms. See Wood v. Derwinski, 1 Vet. App. 406 (1991). In remanding this matter, 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. The matters are REMANDED for the following action: 1. Obtain all SSA records, including a copy of the award letter. Any negative search results should be noted in the record. 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for symptoms of any sinus disorder to include sinus headache and allergic rhinitis since service discharge. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 3. Thereafter, obtain an addendum opinion from an appropriate clinician regarding the Veteran's sinus disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with any sinus disorder. The medical opinion should, at a minimum, reflect consideration of (i) the documented history; (ii) the lay contentions (e.g. sinus disability was caused by depressurized AC-130 cabins); and (iii) medical evidence of record. The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician should address the following: (a) Whether it is at least as likely as not that any sinus disability to include allergic rhinitis shown during this appeal (i.e. since January 2016) (1) had its onset in service or (2) is at least as likely as not related to an in-service injury, event, or disease to include unpressurized AC-130 cabins. Consider (i) the in-service complaints and treatment for upper respiratory infections, sinus drainage, and chest congestion, and (ii) his 2019 sworn testimony that he has had sinus headaches for the past 15 years off and on, which he believes are due to unpressurized AC-130 plane cabins and his that he had in service "some severe sinus headaches.". Explain. (b) Indicate whether there is any medical reason to accept or reject the proposition that the Veteran's reported sinus symptoms (i.e. sinus headaches) in service and thereafter represented the onset of any current sinus disorder, this should be noted. (c) If any of the Veteran's medical history as to symptoms, onset, and progression is rejected by the clinician, a full explanation is required. NOTE: An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis, treatment, diagnostic information, or documented complaints. 4. Ensure that the VA medical opinion obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions 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. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.