Citation Nr: 1300908 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 10-22 384A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a sinus disability, residuals of sinus surgery. REPRESENTATION Appellant represented by: AMVETS WITNESSES AT HEARING ON APPEAL Veteran, Veteran's friend, Veteran's sister, Observer ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from March 1986 to March 1999. This matter comes before the Board of Veterans' Appeals (Board) from a November 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the benefits sought on appeal. In a June 2012 decision, the Board remanded this issue to schedule a hearing before a Member of the Board. Thereafter, the Veteran testified before the undersigned Veterans Law Judge in August 2012. A transcript of the hearing is associated with the claims file. 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 Veteran claims that he has residuals of a sinus disability as a result of his service. Specifically, he testified that he had sinusitis in service which resulted in him receiving an injection. This caused ongoing problems with symptoms such as headaches and the development of a fatty deposit. According to the Veteran, this eventually led to surgery for removal of a lipoma as well as later surgery for a septoplasty. The Veteran contends that his fatty deposit which was caused by his in-service sinus problems, is actually related to his subsequent nose condition which necessitated his septoplasty. The Board notes that the Veteran's service treatment records contain multiple entries where the Veteran presented with sinus complaints. Specifically, in February 1993 he presented with complaints of a cough with yellowish production. The diagnosis was clinical maxillary sinusitis/upper respiratory infection. Following service separation, in May 2005, the Veteran underwent surgery to have a lipoma removed from his forehead. The Veteran was afforded with a VA examination in October 2009 to obtain an opinion on the residuals of sinus surgery due to treatment for chronic maxillary sinusitis. The examiner noted that the Veteran's sinus condition began in 1986 and he underwent sinus surgery in 2005 for a fatty tumor removal from his forehead. The diagnosis was history of lipoma removal from forehead and chronic headaches of unknown cause. The examiner opined that it was less likely than not that the Veteran's sinus surgery residuals were caused by or the result of his treatment for chronic maxillary sinusitis on active duty as there was no medical evidence to support a relationship between lipomas and chronic sinus disease/upper respiratory infections. While the October 2009 VA examiner addressed the relationship between the Veteran's residuals from his May 2005 surgery, the record reflects that he underwent a subsequent septoplasty for a sinus condition in April 2010. The Board further notes that, while the October 2009 VA examiner specifically referenced the Veteran's lipoma, it is unclear if the Veteran has a separate sinus disabiltiy other than the lipoma which is related to service. If the medical evidence of record is insufficient, or, in the opinion of the Board, of doubtful weight or credibility, the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. However, it is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In the present case, the Board is of the opinion that further development is necessary to address whether the Veteran has a current sinus disability (or had such disability at any time during the course of the appeal) that is resulted from his active military service. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the his claimed sinus disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Schedule the Veteran for a VA examination to determine the existence, and if so, etiology of any sinus disability or residuals of sinus surgery manifested during the course of the appeal. Based on a review of the record and an examination of the Veteran, the physician should offer an opinion as to whether the Veteran either (1) currently has a sinus disability to include residuals of sinus surgery or (2) had a had such disability at any time since May 2009. For each disability identified, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disability or disabilities is/are related to service. The examiner is to specifically address whether the Veteran's most recent surgery in April 2010 was related to the Veteran's in-service incidents related to his sinuses. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available to the physician for review of the case. A complete rationale for any opinion expressed should be provided. 3. After completion of the above and any additional development deemed necessary, the issue remaining on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case 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. 2012). _________________________________________________ DAVID L. WIGHT 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).