Citation Nr: 1015145 Decision Date: 04/21/10 Archive Date: 04/30/10 DOCKET NO. 04-14 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a sinus condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tahirih S. Samadani, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1971 to January 1978 and from February 1981 to July 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, which included a denial of service connection for a sinus condition. When this case was before the Board in December 2006, it was decided in part and remanded in part. It is now before the Board for further appellate action. The Veteran testified before a Veterans Law Judge (VLJ) in August 2006; however, that VLJ is no longer at the Board. The law requires that the VLJ who conducted a hearing shall participate in making the final determination of the claim. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2009). By a February 2010 letter, the Veteran was given the opportunity to request another Board hearing. In the February 2010 letter, the Veteran was also advised that if he did not respond within 30 days, the Board would assume that he did not want an additional hearing. To date, a response has not been received. Thus, the Board assumes that the Veteran does not desire an additional hearing. The issue of entitlement to service connection for a post- operative painful scar, secondary to the Veteran's service- connected right shoulder disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ again for appropriate 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 The United States Court of Appeals for Veterans Claims has determined that a remand by the Board confers upon a claimant, as a matter of law, the right to compliance with remand orders. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). In the December 2006 remand, the Board requested that the Veteran be afforded a VA examination to determine the nature and etiology of the Veteran's claimed sinus condition. The examiner was asked to provide an opinion as to whether the Veteran's sinus condition constituted a chronic disease process and an opinion as to whether any sinus disorder had its inception during or was otherwise caused by the Veteran's military service. Although the examiner provided a diagnosis, he did not provide an opinion as to whether the Veteran's allergic rhinitis constitutes a chronic condition or whether it had its inception during or was otherwise caused by the Veteran's military service. In addition, the AMC received a letter from the New York Harbor Healthcare System stating that no medical records were available for the period from 1987 to 2000. In compliance with the December 2006 Board remand, the AMC should inform the Veteran and his representative that the AMC was unsuccessful in obtaining these medical records. The AMC should also prepare a written memorandum explaining what efforts have been undertake to secure the records and why further efforts would be futile. While the Board regrets further delay in this matter, additional development is needed to ensure compliance with the prior remand orders. Id. Accordingly, the case is REMANDED for the following action: 1. Any recent treatment records should be obtained from VA facilities. 2. The AMC should inform the Veteran and his representative that the AMC was unsuccessful in obtaining medical records from the New York VAMC. The AMC should also prepare a written memorandum explaining what efforts have been undertake to secure the records and why further efforts would be futile. 3. Then, the Veteran's claims file should be furnished to the physician who conducted the August 2009 VA examination; if that physician is unavailable, the claims file should be furnished to another appropriate medical professional. Based on a review of the claims file and the clinical findings of the August 2009 examination, the September 2009 CT scan and the November 2009 addendum, the examiner is requested to offer an opinion as to whether it is at least as likely as not (e.g., a 50 percent or greater probability) that the diagnosed allergic rhinitis constitutes a chronic disease process. If so, the examiner is requested to offer an opinion as to whether it is at least as likely as not (e.g., a 50 percent or greater probability) that his allergic rhinitis had its inception during or was otherwise caused by the Veteran's military service. A complete rationale should be given for all opinions and conclusions expressed in a typewritten report. 4. The examination report should then be reviewed to ensure that all requested information is included in the report. If there are any deficiencies, the examination report must be returned to the examiner for completion. 5. After completion of the above development, the Veteran's claim should be readjudicated. If the determination remains less than fully favorable to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond. 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. 2009). _________________________________________________ CHERYL L. MASON 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) (2009).