Citation Nr: A25035348 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240913-474181 DATE: April 16, 2025 REMANDED Entitlement to service connection for bilateral maxillary sinusitis is remanded. Entitlement to service connection for Bell's palsy is remanded. Entitlement to service connection for chronic mastoiditis is remanded. REASONS FOR REMAND The Veteran served in the United States Marine Corps from September 1968 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2024 rating decision by a Department of Veterans Affairs (VA) regional office, which is the Agency of Original Jurisdiction (AOJ). The Veteran elected the Board's Hearing docket. See September 2024 VA Form 10182. This restricts the Board's review to the evidence of record at the time of the September 2024 rating decision and 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). The Veteran appeared for the hearing before a Veterans Law Judge in November 2024. The Board notes that evidence was associated with the claims file during a period that is outside the applicable evidentiary window - between the September 2024 rating decision and the November 2024 Board hearing, and more than 90 days following the hearing. However, as the Veteran's claims are being remanded, the AOJ will consider the claims in light of the entire claims file upon remand. 1. Entitlement to service connection for bilateral maxillary sinusitis is remanded. 2. Entitlement to service connection for Bell's palsy is remanded. 3. Entitlement to service connection for chronic mastoiditis is remanded. The Board finds that the claims must be remanded to correct duty-to-assist errors that occurred prior to the September 2024 rating decision on appeal. See 38 C.F.R. § 20.802(a). The Veteran contends that his bilateral maxillary sinusitis, Bell's palsy, and chronic mastoiditis are secondary to his service-connected bilateral hearing loss. See VA Form 20-0995. Specifically, he contends that he had ear surgeries for his service-connected bilateral hearing loss, and as a result of those surgeries developed bilateral maxillary sinusitis, Bell's palsy, and chronic mastoiditis. See February 2024 VA 21-4138. Secondary service connection may be granted for a current disability that is due to, or aggravated by, a service-connected condition. 38 C.F.R. § 3.310. In the September 2024 rating decision, the AOJ found that new and relevant evidence had been submitted and that the Veteran has current diagnoses of bilateral maxillary sinusitis, Bell's palsy, and chronic mastoiditis. See May 2024 Ear Conditions Disability Benefits Questionnaire; January 2023 Private Treatment Record; May 2019 Private Treatment Record. Under the AMA, the Board is bound by favorable findings by the AOJ in the absence of evidence of clear and unmistakable error. 38 C.F.R. § 3.104(c). In January 2024, VA requested medical opinions as to the likelihood that the Veteran's bilateral maxillary sinusitis, Bell's palsy, and chronic mastoiditis are secondary to his service-connected bilateral hearing loss. However, the examiner did not address the likelihood that the Veteran's bilateral maxillary sinusitis, Bell's palsy, and chronic mastoiditis were due to treatment for, specifically surgery for, the Veteran's service-connected bilateral hearing loss, as contended. Once VA undertakes the effort to provide an examination or opinion when developing a service-connection claim, an adequate one must be provided. See Daves v. Nicholson, 21 Vet. App. 46, 52 (2007). Accordingly, the January 2024 VA opinions are inadequate. Moreover, the record does not contain an adequate opinion on the matter of whether the Veteran's service-connected bilateral hearing loss, including treatment for the bilateral hearing loss, aggravates his bilateral maxillary sinusitis, Bell's palsy, and chronic mastoiditis. However, when considering secondary service connection, an adequate medical opinion must address both whether the claimed disability was caused by the service-connected disability, as well as whether the claimed disability was aggravated by the service-connected disability. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). In the January 2024 VA opinions, the examiner solely opined that the Veteran's bilateral maxillary sinusitis, Bell's palsy, and chronic mastoiditis disabilities were less likely than not due to or the result of the Veteran's service-connected bilateral hearing loss. Thus, the opinions are inadequate. As the AOJ relied on inadequate opinions in issuing the September 2024 rating decision, the AOJ committed a duty to assist error prior to the rating decision on appeal. See 38 C.F.R. § 20.802(a). Accordingly, remand is warranted for addendum opinions addressing the likelihood that the Veteran's bilateral maxillary sinusitis, Bell's palsy, and chronic mastoiditis are due to, or aggravated by, his surgical treatment for his service-connected bilateral hearing loss. The Board reminds the Veteran that the "duty to assist is not always a one-way street." A veteran is expected to cooperate in the efforts to adjudicate the claim, and his failure to do so would subject him to the risk of an adverse adjudication based on an incomplete and underdeveloped record. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician to determine the likely etiology of the Veteran's bilateral maxillary sinusitis, and specifically whether it was caused or aggravated by his service-connected bilateral hearing loss treatment. The Veteran's record, including this remand, must be reviewed by the examiner, and the examiner should note such review in the record. This remand does not require an additional physical examination of the Veteran, unless the examiner finds that an additional examination is necessary to provide the requested opinion. The examiner should provide an opinion that responds to the following: (a.) Is the Veteran's bilateral maxillary sinusitis at least as likely as not (an approximate balance of positive and negative evidence) caused or aggravated by (any incremental increase in severity due to) treatment for his service-connected bilateral hearing loss? The opinion must address aggravation. (b.) If the service-connected bilateral hearing loss treatment did not cause, but aggravated, the Veteran's bilateral maxillary sinusitis, specify, to the extent possible, the degree of disability (pathology or impairment) that has resulted from such aggravation. The opinion must address aggravation. Under Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023), when addressing aggravation of non-service-connected disabilities, it is enough to show that "but for" the Veteran's service-connected bilateral hearing loss any incremental-increase in severity of his bilateral maxillary sinusitis would not have occurred. (c.) If the Veteran's bilateral maxillary sinusitis is found to not have been caused or aggravated by his service-connected bilateral hearing loss treatment, then identify the etiology considered more likely (and explain why that is so). Provide a full rationale to support all opinions, citing to supporting clinical data and/or medical literature with application to the Veteran's medical history, as appropriate. 2. Obtain an addendum opinion from an appropriate clinician to determine the likely etiology of the Veteran's Bell's palsy, and specifically whether it was caused or aggravated by his service-connected bilateral hearing loss treatment. The Veteran's record, including this remand, must be reviewed by the examiner, and the examiner should note such review in the record. This remand does not require an additional physical examination of the Veteran, unless the examiner finds that an additional examination is necessary to provide the requested opinion. The examiner should provide an opinion that responds to the following: (a.) Is the Veteran's Bell's palsy at least as likely as not (an approximate balance of positive and negative evidence) caused or aggravated by (any incremental increase in severity due to) treatment for his service-connected bilateral hearing loss? The opinion must address aggravation. (b.) If the service-connected bilateral hearing loss treatment did not cause, but aggravated, the Veteran's Bell's palsy, specify, to the extent possible, the degree of disability (pathology or impairment) that has resulted from such aggravation. The opinion must address aggravation. Under Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023), when addressing aggravation of non-service-connected disabilities, it is enough to show that "but for" the Veteran's service-connected bilateral hearing loss any incremental-increase in severity of his Bell's palsy would not have occurred. (c.) If the Veteran's Bell's palsy is found to not have been caused or aggravated by his service-connected bilateral hearing loss treatment, then identify the etiology considered more likely (and explain why that is so). Provide a full rationale to support all opinions, citing to supporting clinical data and/or medical literature with application to the Veteran's medical history, as appropriate. 3. Obtain an addendum opinion from an appropriate clinician to determine the likely etiology of the Veteran's chronic mastoiditis, and specifically whether it was caused or aggravated by his service-connected bilateral hearing loss treatment. The Veteran's record, including this remand, must be reviewed by the examiner, and the examiner should note such review in the record. This remand does not require an additional physical examination of the Veteran, unless the examiner finds that an additional examination is necessary to provide the requested opinion. The examiner should provide an opinion that responds to the following: (a.) Is the Veteran's chronic mastoiditis at least as likely as not (an approximate balance of positive and negative evidence) caused or aggravated by (any incremental increase in severity due to) treatment for his service-connected bilateral hearing loss? The opinion must address aggravation. (b.) If the service-connected bilateral hearing loss treatment did not cause, but aggravated, the Veteran's chronic mastoiditis, specify, to the extent possible, the degree of disability (pathology or impairment) that has resulted from such aggravation. The opinion must address aggravation. Under Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023), when addressing aggravation of non-service-connected disabilities, it is enough to show that "but for" the Veteran's service-connected bilateral hearing loss any incremental-increase in severity of his chronic mastoiditis would not have occurred. (c.) If the Veteran's chronic mastoiditis is found to not have been caused or aggravated by his service-connected bilateral hearing loss treatment, then identify the etiology considered more likely (and explain why that is so). Provide a full rationale to support all opinions, citing to supporting clinical data and/or medical literature with application to the Veteran's medical history, as appropriate. T. V. Casey Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Maxey, Gloria J.S. 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.