Citation Nr: 22019767 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 16-15 168 DATE: April 3, 2022 REMANDED Entitlement to a disability rating in excess of 10 percent for recurrent maxillary sinusitis with headaches is remanded. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for recurrent maxillary sinusitis with headaches is remanded. The Veteran had active service in the Army from March 1972 to February 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal of an April 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, granted an initial non-compensable rating for service-connected recurrent maxillary sinusitis. The Veteran timely filed a Notice of Disagreement (NOD) in May 2013. Subsequently, the RO granted the Veteran entitlement to an initial disability rating of 10 percent for recurrent maxillary sinusitis with headaches. As the highest possible rating was not assigned for the period on appeal, the appeal continued. See AB v. Brown, 6 Vet. App. 35 (1993). This matter was previously before the Board in May 2021, at which time the Veteran's claim was remanded to obtain VA and non-VA medical records relating to the Veteran's claim; and obtain a VA examination addressing the severity of the Veteran's recurrent maxillary sinusitis for the period from September 2012 onward. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board now finds that there has not been substantial compliance with its May 2021 remand directives as they related to obtaining a VA examination. A VA examination was obtained in January 2022. As noted above, and as reflected in the November 2021 VA Form 21-2507a ("Request for Physical Examination") the examiner was advised that the Board was seeking an opinion as to the severity of the Veteran's recurrent maxillary sinusitis for the period from September 2012 onward. However, the examination report addressing the Veteran's sinusitis symptoms reflects consideration only of symptoms manifesting in the 12 months preceding the examination. 01/04/2022, C&P Exam, Sinusitis Disability Benefits Questionnaire, pp. 2, 3. An examination report focused on the Veteran's headache symptoms is nonspecific as to the time frame covered; in light of the deficiencies of the sinusitis examination, the Board cannot assume that the headache examination was compliant with its May 2021 remand directives. 01/04/2022, C&P Exam, Headaches Disability Benefits Questionnaire. More fundamentally, the January 2022 VA examination is substantively inadequate. The examiner indicated that the Veteran had had no non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the preceding 12 months. However, the examiner also documented the Veteran's report of chronic recurring sinus headaches once a week. The basis for the examiner's conclusion that there had been no non-incapacitating episodes in the preceding 12 months is unclear. It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA must consider all lay and medical evidence of record. 38 U.S.C. § 1154(a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. Accordingly, the Board finds the January 2022 VA examination inadequate for adjudicative purposes. Once VA undertakes the effort to provide an examination when developing a claim, the examination must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board finds that there has not been substantial compliance with its May 2021 remand directives as they related to obtaining a VA examination. In May 2021 the Board directed that the RO afford the Veteran an opportunity to identify all providers he has seen for his recurrent maxillary sinusitis with headaches; and obtain treatment records from all non-VA providers so identified by the Veteran, as well as obtain all available VA treatment records generated since December 2017. The record reflects that in August 2021 the Veteran was requested to complete and return a VA Form 21-41422 and VA Form 21-4142a identifying any non-VA treating providers and authorizing VA to obtain treatment records on his behalf. The record does not reflect any response to this request by VA. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence". Wood v. Derwinski, 1 Vet. App. 190, 193 (U.S. 1991). The record further reflects that updated VA treatment records were obtained and associated with the claims file in November 2021 and January 2022 from the Detroit and Battle Creek VA medical systems, collectively covering the period from November 20212 to January 2022. In light of the foregoing, the Board finds that there has been substantial compliance with its remand directives relating to obtaining VA and non-VA treatment records. Accordingly, the Veteran's claim is being remanded only to address the deficiencies of the January 2022 VA examination discussed above. The matters are REMANDED for the following action: 1. Forward the claims file, including this remand, to the examiner who provided the January 2022 opinion. If the January 2022 VA examiner is unavailable, or is unable to offer the opinion sought, the requested opinions should be obtained from another appropriately qualified clinician. The examiner shall indicate in the addendum report that the claims file was reviewed. The need for an additional in person examination is left to the discretion of the medical professional offering the addendum opinion. The examiner is requested to evaluate the severity of the Veteran's recurrent maxillary sinusitis with headaches for the period from September 2012 onward. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner explain why an opinion cannot be provided and specifically state whether the inability to provide an opinion is due to the limits of the examiner's knowledge, the limits of medical knowledge in general, or there is additional evidence that would allow for an opinion on this matter. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sametshaw, Eric C. 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.