Citation Nr: 0813442 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 05-11 880 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for sinusitis. REPRESENTATION Appellant represented by: Minnesota Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The veteran served on active duty from October 1959 to October 1963. This matter came to the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Madison, Wisconsin. Thereafter, the veteran's claims file was transferred to the RO in St. Paul, Minnesota. In March 2007, the veteran testified at a travel board hearing at the St. Paul RO before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with his claims folder. In July 2007 the Board remanded the case for further development. The requested development has been completed and the case has been returned to the Board for further appellate action. 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. REMAND In compliance with the VCAA requirement that VA will provide a medical examination when the record of the claim does not contain sufficient medical evidence for VA to adjudicate the claim, the Board remanded this claim in July 2007 to obtain a medical evaluation and opinion. See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2004). The evidence of record indicates that the veteran failed to report for the scheduled VA examination. The evidence of records shows that a September 2007 letter was sent to his current address of record notifying him of the date, time and place of the VA compensation examination. He was notified of the consequences of his failure to report, as well as the provisions of 38 C.F.R. § 3.655, in a January 2008 Supplemental Statement of the Case. In February 2008, the Board received a statement from the veteran indicating that he did not receive notice of the scheduled VA examination and asking that another examination be scheduled on his behalf. In his statement, the veteran states that he never misses any appointments at the VA medical facility and indicates that he would not miss this examination because he recognized its significance to his claim. A review of the veteran's claims file shows that he indeed rarely, if ever, misses scheduled appointments at the VA medical facility. In light of this fact, the Board is inclined to afford him the benefit of the doubt in this instance and comply with his request to reschedule the previous examination. Accordingly, the case is REMANDED for the following action: 1. The veteran should be provided a VA examination to determine the nature, extent, and etiology of any respiratory disorder found to be present, to include sinusitis. The veteran's claims file must be made available to and be reviewed by the examiner. All tests and studies deemed necessary should be accomplished and clinical findings should be reported in detail. Based on the examination results, review of the veteran's pertinent medical history, if diagnosed sinusitis is found to be present, the examiner is requested to opine as to whether it is it at least as likely as not (a 50 percent probability or more) that the disorder originated in service or is otherwise etiologically related to the veteran's period of service or any incident of service. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. If the examiner is unable to provide the requested information with any degree of medical certainty, the examiner should clearly indicate that. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached, in a legible report. The veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claim. 2. Thereafter, the RO should readjudicate the issue of entitlement to service connection for sinusitis. If the issue on appeal remains denied, a supplemental statement of the case should be provided to the veteran and his representative. After the veteran and his representative have had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. 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 that are 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. 2007). _________________________________________________ KATHLEEN K. GALLAGHER 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) (2007).