Citation Nr: 1042636 Decision Date: 11/12/10 Archive Date: 11/24/10 DOCKET NO. 08-05 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for sinusitis. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. T. Sprague, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from April 1977 to April 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Board has had the case before it on a previous occasion, and it was remanded in June 2010 for additional development. Unfortunately, additional evidentiary development is needed, and the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. The Veteran appeared at a Travel Board hearing in March 2010. A transcript is associated with the claims file. REMAND The Veteran contends that he developed chronic sinusitis during his active military service, and that he currently experiences the same disorder. The Board, in a remand order of June 2010, noted that the service treatment records list complaints of sinus drainage in April 1978, and the Veteran was to be scheduled for a current VA examination to determine if any current sinusitis was causally related to service, to include the noted in-service episode of sinus problems. The Veteran was examined in June 2010 in response to the remand order, and the examining physician noted that there was no evidence of current sinusitis. As this examiner concluded that no current sinus disease was present (although he did note the presence of a deviated nasal septum), there was no opinion entered with regard to etiology of the claimed opinion. The examiner did indicate that he reviewed the claims file and the relevant medical history. The Board notes that the Veteran has had treatment for chronic sinusitis post-service, and that a May 2007 VA report lists a diagnosis of chronic sinusitis on the basis of a computerized tomography (CT) scan. Indeed, this report makes an assessment of chronic sinusitis after noting a small air fluid level in the right maxillary sinus, consistent with a mucous retention cyst. Milder, inferior turbinate hypertrophy was noted bilaterally, and no frank purulence or polyps were visualized on anterior rhinoscopy. The Veteran was to be medicated with Flonase and nasal saline, and Claritin was to be started as a result of examination findings. A repeat CT was deemed to be necessary if the Veteran continued to report symptoms; however, at the time of the clinical visit, the CT did not reveal additional sinus disease, particularly in the sphenoid, frontal, or ethmoid sinuses. The 2007 VA otolaryngology clinical report does make a diagnosis of chronic sinusitis, with abnormal findings in the right maxillary sinus. Although the examiner noted that sinus disease (other than what was noted in the right maxillary sinus) was not apparent on a then-recent CT, this was not a sufficient enough finding to rule out the diagnosis of a chronic sinusitis. Thus, the Board must conclude that the Veteran has had, at least as late as 2007, a current diagnosis of the claimed condition. Given this, the conclusion of the 2010 examiner regarding the lack of a current sinus disorder requires some additional clarification. Congress has specifically limited entitlement to service- connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board notes that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, there is evidence of a disability when the claim was filed; however, it is apparent that the most recent medical assessment failed to note the presence of sinus disease. The claim must be remanded so that the June 2010 examiner can issue an addendum opinion in light of the results of the 2007 report. Should he maintain his opinion that current sinus disease is not present, he must address whether it is at least as likely as not that the chronic sinusitis diagnosed in 2007 had causal origins in service, to include the documented episode of sinus treatment in 1978. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Ensure that all notification and development actions required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2010) are fully satisfied. 2. The Veteran's claims file is to be sent to the examiner who conducted the June 2010 examination (if available) for an addendum opinion regarding the existence of sinusitis. The examiner is asked to reference the 2007 diagnosis of chronic sinusitis (based on CT evidence), and should opine as to whether the disability has resolved since that time. Regardless of whether the disability is no longer present, the examiner is to be informed that the 2007 diagnosis represents a current diagnosis when the claim was filed, and as such, he is to be instructed to offer an opinion as to whether the sinusitis noted at that time had causal origins in service. Specifically, the examiner is asked to state whether it is at least as likely as not (50 percent probability or greater) that current sinusitis (or, if resolved, sinusitis noted to be present in 2007) had causal origins in service, to include documented treatment for draining sinuses in 1978. A detailed rationale should accompany any conclusions reached. 3. After conducting the indicated development, readjudicate the Veteran's claim. If the claim remains denied, issue an appropriate supplemental statement of the case and forward the case to the Board for final adjudication. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).