Citation Nr: A25035247 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 230706-359458 DATE: April 16, 2025 REMANDED Entitlement to service connection for a sinus disability is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1966 to May 1968, August 1970 to February 1978, and May 1979 to November 1989. He served honorably in the U.S. Army, including service in the Republic of Vietnam during the Vietnam era. The Board of Veterans' Appeals (Board) thanks the Veteran for his service to our country. In November 2022, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the matter of service connection for sinusitis, most recently addressed in a November 2022 rating decision. In May 2023, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision. Therefore, the Board may only consider the evidence of record at the time of the decision on appeal and any evidence submitted during an applicable evidentiary window. In the July 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held in November 2023. Therefore, the Board may only consider the evidence of record at the time of the May 2023 AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. However, because the Board is remanding the claim on appeal, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claim. 38 C.F.R. § 3.103(c)(2)(ii). This case was previously before the Board in April 2024, when the Board issued a decision denying the claim on appeal, as well as granting service connection for recurrent acute bronchitis. The Veteran appealed the April 2024 Board decision's denial of service connection for a sinus disability to the United States Court of Appeals for Veterans Claims (Court). In an October 2024 Court Order granting an October 2024 Joint Motion for Partial Remand (Joint Motion or JMPR), the Court vacated the Board's April 2024 decision related to the Veteran's claim for a sinus disability and remanded the matter back to the Board to take action pursuant to the parties' agreement in the October 2024 Joint Motion. The case has now returned to the Board for further appellate review. Entitlement to service connection for a sinus disability is remanded. The Court-endorsed Joint Motion in this case has identified a pre-decisional duty to assist error that requires correction. The Joint Motion explains the parties agree that remand is warranted "because the Board erred when it failed to ensure that the VA examination it relied upon was adequate." Specifically, the May 2023 VA examiner was asked to provide an opinion as to whether the Appellant's sinus disability was at least as likely as not incurred in or caused by his in-service upper respiratory infection (URI). The examiner was directed to review a February 25, 1985 (noted as February 25, 1984 in the Joint Motion), service treatment record noting a URI. However, the May 2023 VA examiner did not address this evidence, indicate it was reviewed, or provide the requested opinion. Accordingly, remand is warranted to obtain a new examination and direct medical opinion, which addresses the in-service treatment records noting a URI, including the February 25, 1985, treatment note. In accordance with the directive of the Court-endorsed Joint Motion, a remand to obtain the referenced examination and medical opinion is necessary to correct the identified pre-decisional error. Furthermore, the Joint Motion noted that although the VA Secretary does not concede any error on this point, the parties agree that the new medical opinion must address Appellant's November 2023 testimony about burn pit exposure and the synergistic effect of burn pit exposure and herbicide exposure. However, the Board cannot direct that the new medical opinion address Appellant's November 2023 testimony about burn pit exposure as such a provision in the JMR is not enforceable, as it would be contrary to the law. See Forcier v. Nicholson, 19 Vet. App. 414, 425-26 (2006) (those provisions of a JMR are binding on the parties to the extent not otherwise contrary to law). This is so because under the AMA, the Board's remand authority is limited to correcting predecisional error: predecisional duty to assist errors or to correct any other error in satisfying a regulatory or statutory duty. See 38 C.F.R. § 20.802(a). As the Veteran's November 2023 testimony was provided after the May 2023 decision in this appeal, the failure to develop for a medical opinion which considered the testimony is not predecisional error. While the parties did not identify a predecisional error with respect to the fact that the medical opinion did not consider the synergistic effect of burn pit exposure and herbicide exposure, as it is not contrary to law, the Board will remand for such an opinion. The Board finds that remand is also needed in order to address a predecisional duty to assist error regarding burn pit exposure. The November 2022 VA Form 20-0995 identifies burn pit exposure as the cause of chronic sinusitis. While the Board acknowledges that a toxic exposure risk activity (TERA) memorandum was obtained in April 2023, the Board does not see that this specific contention was addressed. The Board asks that the specific contention of burn pit exposure be addressed upon remand. The Board also advises that, at this time, it intimates no opinion as to the credibility or probative value of any lay statements in relation to the Veteran's claim and defers any credibility determinations until final adjudication of this claim. The matter is REMANDED for the following action: 1. Please take all necessary action to confirm exposure to burn pits, as contended in the November 2022 VA Form 20-0995. 2. Please schedule the Veteran for an examination from an appropriate VA clinician to determine the nature and etiology of the Veteran's sinus disability. The clinician must review the claims file. The clinician is asked to provide a response, with rationale, to the following: (a.) Whether it is at least as likely as not (i.e., likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's sinus disability was incurred in or caused by an in-service injury, event, or illness, with consideration of the in-service treatment records noting URIs, including the October 21, 1975; January 18, 1977; and February 25, 1985, treatment records; and (b.) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's sinus disability is related to his in-service toxic exposure risk activities (TERAs) during his active service, to include the synergistic effect of burn pit exposure and herbicide exposure. In rendering this opinion, the clinician is asked to consider and discuss the Veteran's total potential exposure through all applicable military deployments and the synergistic, combined effect of all TERAs. If an opinion cannot be provided without resort to speculation, the clinician should provide an explanation as to why this is so and identify what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Black, Associate 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.