The appeal for entitlement to service connection for a sinus disorder is remanded.

Citation Nr: 26001440 Decision Date: 01/30/26 Archive Date: 01/30/26 DOCKET NO. 00-19 517 DATE: January 30, 2026 REMANDED The appeal for entitlement to service connection for a sinus disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from April 1972 to May 1974. This appeal comes before the Board of Veterans' Appeals (Board) on appeal of a January 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at an April 2003 hearing before a Veterans Law Judge; a transcript of that proceeding is of record. This appeal has a lengthy procedural record, as outlined below. Although further delay is regrettable, the Board finds additional remand is required. The Veteran's claim of entitlement to service connection for a sinus disorder was previously before the Board in 2003, 2009, 2010, 2011, 2015, 2016, 2017, 2018, 2020, and most recently, February 2024. The Veteran asserts that his current sinus disorder is due to two episodes occurring during his active service, particularly an April 1973 incident in which he fell out of his bunk and an October 1973 parachuting mishap. During service the Veteran was treated for multiple upper respiratory infections. An April 1973 fall from his bunk bed is documented in his service treatment records. He injured his right maxilla, or upper jaw in the fall. No injury to his nose was documented. Similarly, an October 1973 parachuting accident is documented; however, the recorded injury involved his right leg. Upon his discharge from service, the April 1974 separation examination reflected a normal nose and normal sinuses. The Veteran filed an application for VA compensation benefits shortly after his discharge from service in June 1974. He requested service connection for low back pain, a groin disability, an upper thigh disability and a foot disability. He did not mention a sinus problem at that time. There are very scanty treatment records available following service and during the 1980s. VA treatment records dated in 1978 and 1979 reflect the Veteran experienced upper respiratory infections. Neither record indicates sinus involvement. A 1980 record from the VA Hospital in the Bronx, New York, shows that the Veteran was admitted on January 30, 1980, "with a history of nasal traumatic injury associated with nasal airway obstruction" and a "septal deviation secondary to traumatic nasal injury with a nasal airway obstruction." He was admitted for surgical repair. Physical examination showed a deviated septum which was obstructed to the left side, associated with an obvious nasal bony traumatic deformity. However, because he was experiencing a bilateral mild sinusitis at the time, it was decided that the sinus infection would be treated, and he would be readmitted at a later time when the infection was cleared up. He was discharged without surgery on February 6, 1980. In August 2010, the Board issued a decision denying the Veteran's application to reopen this claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). The Veteran and VA (the parties) filed with the Court a Joint Motion for Remand (JMR), requesting to vacate the Board's August 2010 decision, and a remand to the Board for further consideration, which the Court approved in May 2011. In an October 2011 decision, the Board reopened the claim of service connection for a sinus disorder and remanded the question of entitlement to service connection on the merits to the RO for additional development. In an April 2015 decision, the Board denied entitlement to service connection for a sinus disorder, which the Veteran appealed. The parties filed a JMR requesting a vacatur of the denial, which was approved by the Court in November 2015. In a March 2016 decision, the Board again denied entitlement to service connection for a sinus disorder, which the Veteran appealed. The parties filed a JMR requesting a vacatur of the Board's denial, which was approved by the Court in January 2017. The Board then remanded the claim to the RO for further development in a May 2017 decision. In an April 2018 decision, the Board again denied entitlement to service connection for a sinus disorder, finding the Veteran's sinus disorder was not due to or related to his active service. The Veteran appealed this decision, and in a November 2019 memorandum opinion, the Court vacated the denial, citing the Board's reliance on inadequate medical opinion. The Court remanded the claim to the Board to obtain a new medical opinion that adequately assesses the etiology of the Veteran's current sinus disorder and to adjudicate the claim in light of the favorable evidence of record. Specifically, the Court held that the October 2017 VA negative nexus, upon which the Board's April 2018 denial was based, was inadequate as it failed to address the Veteran's lay statements or a specific favorable February 1980 treatment record. In November 2020, the Board remanded the claim for an opinion from an otolaryngological (ENT) specialist addressing both the Veteran's lay statements and medical evidence of record. The July 2021 VA examiner, a general practice physician's assistant, provided a negative nexus, reasoning that the in-service contusions were acute only, there was no evidence of chronicity of care, and the Veteran's symptoms were subjective only. In February 2025, the Board remanded the claim again for additional evidentiary development. The Board noted that the 1980 records are the earliest post-service evidence of a deviated septum and of an active sinus infection, and found that the treatment records appeared incomplete. The Board noted that pre-surgery reports, such as imaging studies, evaluation reports, and initial visits to the VA medical facilities in the Bronx would be expected. As these records were generated by VA, the Board remanded the appeal to attempt to obtain complete VA treatment records from 1974 to 2002. The Board also found that the July 2021 VA nexus opinion was inadequate and not responsive to the November 2020 remand directives. The Board noted that the examiner's credentials did not establish a specialty in ENT, as requested. Additionally, the examiner did not address the Veteran's lay statements or the favorable February 1980 treatment records, nor did the examiner consider the documented sinus-related diagnoses during the extensive appeal period. Upon remand, the RO contacted the VA medical centers in the Bronx and Northport in an attempt to obtain additional treatment records from 1974 to 2002. In response, both VA medical centers provided additional treatment records from 1974 to 2006. Upon review, the records appear to be duplicative of the treatment reports already of record. The records document the Veteran's January 1980 admission to the VA medical center for a history of nasal trauma, his diagnosis of bilateral mild sinusitis, and his discharge without surgery in February 1980. Again, it appears these records are incomplete, as there are no pre-surgery evaluations, imaging testing, or initial doctor visits or reports in the record. Thus, remand is again required to attempt to associate any additional outstanding records with the claims file. If all reasonable efforts are exhausted without success, the RO should issue a formal determination that such records either do not exist or that further attempts to obtain them would be futile. See 38 C.F.R. § 3.159(c)(2)(when attempting to obtain records in the custody of a Federal department or agency, VA must make as many requests as are necessary to obtain relevant records; VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile). The May 2025 VA nexus opinion purports to be responsive to the February 2025 Board remand directives. At that time, the examiner, a general practice physician specializing in otolaryngology, opined that the Veteran's sinus condition was less likely than not incurred in or caused by his documented accidents during service. In so finding, the clinician acknowledged the Veteran's lay statements, but noted that sinusitis cannot be established from subjective report alone; rather, it must be confirmed by radiologic testing. The examiner further opined that the Veteran did not sustain a sinus disorder after his parachute accident or fall from his bunk, as there was no evidence of a deviated septum or other nasal injury after each fall. Rather, the examiner noted that the first mention of sinusitis was in November 1993. The Board finds that this opinion is inadequate as it is based on an inaccurate factual premise. The examiner notes that the first notation of sinusitis was in 1993, nearly two decades after the Veteran's service. However, as outlined above, there are records as early as 1980 which document a confirmed diagnosis of sinusitis which prevented him from getting nasal surgery. For those reasons, the Board finds that another remand is required. The matters are REMANDED for the following action: 1. Attempt to obtain the Veteran's complete VA treatment records from the Bronx VA Hospital and associated clinics, and the Northport VA Medical Center and associated clinics, for the period from 1974 to 2002, when he relocated to Pennsylvania. Special emphasis should be placed upon locating all pre-surgery reports, such as imaging studies, evaluation reports, and initial visits to the VA medical facilities in the Bronx prior to the scheduled February 1980 surgery, as well as records of any rescheduled surgery after February 1980. The request must include all inpatient hospital records, all imaging studies, all ear, nose, throat outpatient records, as well as primary care records. Archived records should be retrieved from storage. All the requests and responses should be fully documented in the claims file. If any additional records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining any additional records requested above, forward the claims file to the May 2025 VA clinician (or any other equally qualified clinician with ENT expertise if the May 2025 VA clinician is unavailable) for an opinion regarding the likely etiology of the Veteran's nasal septal deformity and any other current sinus disorder diagnosed during the appeal period. The need for an additional clinical examination and/or further tests and studies is left to the discretion of the examiner. The examiner should opine whether it is more, less, or equally likely (likelihood is at least approximately balanced or nearly equal, if not higher) that any sinus disorder or nasal septum disorders present during the appeal period occurred in or are otherwise related to his military service, particularly to the two accidents related by the Veteran. The reviewer is requested to specifically discuss whether there is any medical reason to accept or reject the Veteran's belief that his sinus and/or septal disorder is due to an April 1973 fall from his bunk and/or October 1973 parachuting accident. A complete rationale is required for any opinion offered. In providing the requested opinion, the examiner is asked to consider and discuss the following: " The Veteran's April 2003 Board hearing statement reporting an in-service parachuting incident in which he fell and injured his nose, which he described as "swollen, but not broken." " The Veteran's April 2012 statement indicating that when he fell from his bunk in April 1973, he bloodied his nose and was hospitalized the next day for arm injuries. " April 1973 STRs indicating that the Veteran was treated for a fall on his right cheek and arm; October 1973 STRs indicating treatment for his right leg pain following a parachuting injury; and April 1974 separation examination indicating "normal" nose and sinuses. " February 1980 medical records indicating the Veteran's deviated septum may have been secondary to traumatic nasal injury with a nasal airway obstruction. " The significance, if any, of the period of time between the two service injuries in 1973 and 1974 and next earliest evidence of a sinus/nasal disability consisting of the 1980 report showing a history of nasal trauma and an episode of sinusitis. (If earlier VA treatment records are indeed obtained showing such impairment prior to 1980, this request should be adjusted accordingly.) " The June 2013, June 2017, September 2017, July 2021, and May 2025 VA examiner opinions. HEATHER J. HARTER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Orie, 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.