Citation Nr: 1237894 Decision Date: 11/05/12 Archive Date: 11/09/12 DOCKET NO. 10-49 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a sinus disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran, spouse, and daughter ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1943 to November 1945. His awards and decorations include the Air Medal. This matter was last before the Board of Veterans' Appeals (Board) in May 2012 on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified at a videoconference hearing before the below-signed Veterans Law Judge in April 2012. A copy of the transcript of that hearing has been associated with the record. A review of the Virtual VA paperless claims processing system revealed additional medical evidence pertinent to the present appeal. This evidence has been carefully reviewed by the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC, to ensure compliance with applicable law. VA will notify the Veteran if further action is required on his part. REMAND As the claim file reflects that the RO/AMC did not complete the Board's May 2012 remand directives, the appeal must be remanded. The Board is obligated by law to ensure that the RO complies with its directives; the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet.App. 268, 271 (1998). In May 2012, the Board noted that the RO had issued a formal finding that the Veteran's service record could not be located because it had been destroyed by fire, but it had not advised the Veteran that alternative forms of evidence could be developed to substantiate his claim pursuant to Dixon v. Derwinski, 3 Vet.App. 261, 263-264 (1992). The Board directed the RO/AMC to provide the Veteran with notice in accordance with Dixon, but the file shows that no such notice was sent to the Veteran. The Board's May 2012 remand also directed the RO/AMC to take appropriate steps to obtain any outstanding VA or private treatment records. The claim file reflects that the RO/AMC obtained additional VA treatment records and mailed the Veteran a May 2012 letter that, as directed by the Board, requested that he complete authorization forms allowing for the release of any pertinent treatment records from "Abercrombie," Greater Knoxville Ear Nose and Throat Associates, Dr. Hall, Dr. Ayers, Dr. Overholt, and Dr. Pintuski. Unfortunately, the claims file also contains a June 2012 report of telephone contact indicating that the Veteran did not receive the letter. The report of contact states that the VA staff member promised to re-send the letter, but the claims file does not indicate that another letter was mailed to the Veteran. Accordingly, the case is again REMANDED to the RO/AMC for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.) 1. Gather any newly created records of VA treatment and associate them with the record. 2. Provide the Veteran with the necessary authorizations for the release of any private treatment records not currently on file. Make at least two (2) attempts to obtain records from any identified sources. Associate any available records with the claims file. If any records are unavailable, document the unavailability within the claims file and advise the Veteran so he can submit any copies in his possession. The requests must specifically include, but are not limited to, the following: a. "Abercrombie;" b. Greater Knoxville Ear, Nose, and Throat Associates; c. Dr. Hall; d. Dr. Ayers; e. Dr. Overholt; and f. Dr. Pintuski. 3. CONCURRENT WITH THE ABOVE, AND AS REQUIRED BY 38 C.F.R. § 3.159(e), INFORM THE VETERAN OF THE STATUS OF HIS SERVICE RECORDS. ALSO ADVISE HIM THAT ALTERNATIVE FORMS OF EVIDENCE CAN BE DEVELOPED TO SUBSTANTIATE HIS CLAIM, INCLUDING, BUT NOT LIMITED TO, "BUDDY CERTIFICATES" AND LETTERS. Dixon, 3 Vet.App. at 263-264. 4. Readjudicate the Veteran's claim. If the claim is not granted in full, the Veteran and his representative must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet.App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims is both critical and appreciated. 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. 2011). _________________________________________________ DENNIS F. CHIAPPETTA, JR. 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) (2011).