Citation Nr: 1303237 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 10-13 948 A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a sinus disability, to include maxillary sinusitis and allergic rhinitis. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from September 1988 to June 1990. This matter comes before the Board of Veterans Appeals (Board) from a rating decision issued in March 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) above, which denied entitlement to service connection for sinusitis. The Veteran has perfected his appeal by submitting a timely notice of disagreement and substantive appeal in March 2009 and May 2010 respectively. For reasons discussed below, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action is required on her part. REMAND The Veteran is seeking entitlement to service connection for a sinus disability. While she specifically identified her disability as sinusitis, review of the record reveals that she has been diagnosed with maxillary sinusitis, as well as allergic rhinitis. See VA and private treatment records dated from 2003 to 2012. As a result, the Veteran's claim has been recharacterized as a sinus disability, to include sinusitis and allergic rhinitis. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the Court found that the scope of a claimant's claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). The Veteran has asserted that service connection is warranted for a sinus disability because she had a long history of sinus symptoms during service, including nasal congestion, cough, sneezing, and conjunctivitis, which are now diagnosed as allergic rhinitis. See March 2009 statement from the Veteran. She has also asserted that her current sinus disability resulted from the surgery that was performed on her maxilla during service. See December 2012 statement from the Veteran. The service treatment records (STRs) show that the Veteran was treated for bronchitis on numerous occasions during service, which was manifested by coughing and yellow sputum. However, in January 1997, the Veteran also presented for treatment complaining on a sore throat that had persisted for three days and a cough that had been present for three weeks. At that time, the Veteran reported that her sinusitis was better, although her sore throat was getting worse. The final assessment was sinusitis, resolved. The STRs do not contain any additional or subsequent complaints, treatment, or findings related to sinusitis or any other sinus disability. However, the STRs show that, in October 1990, the Veteran had surgery on her maxilla to correct maxilla hyperplasia and deep bite malocclusion. In this regard, an October 1998 VA examination report reflects that the Veteran reported having sinus congestion and post nasal drainage since the in-service surgery. She reported treating her sinus symptoms with an oral decongestant and nasal inhalers. The final assessment was chronic post nasal drainage. The post-service medical evidence also reflects that the Veteran continued reporting having a history of allergy and sinus symptoms, including nasal congestion, post nasal drainage, and itchy eyes. The post-service evidence reflects that the Veteran's symptoms have been variously attributed to allergic rhinitis, conjunctivitis, chronic allergies, and right maxillary sinusitis. See post-service treatment records dated from 2003 to 2012. While there is medical evidence showing a current diagnosis of sinus disability, there is no medical evidence or opinion of record which provides an indication as to the likely etiology of the Veteran's current disability. In this regard, the Board notes the Veteran has not been afforded a VA examination in conjunction with this claim. Under the VCAA, VA is obligated to provide an examination where the evidentiary record contains competent evidence that the claimant has a current disability, competent evidence of an in-service event, injury, or disease, the record indicates that the current disability or signs or symptoms of the disability may be associated with the in-service event, injury, or disease, and the record does not contain sufficient information to make a decision on a claim. 38 U.S.C.A. § 5103A (West 2002); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, there is competent evidence of treatment for sinusitis during service, as well as evidence showing that the Veteran had surgery performed on her maxilla during service. There is also a current diagnosis of a sinus disability and evidence which indicates that the Veteran's current sinus disability may be related to service. In this regard, the Board notes that the medical evidence of record shows continued complaints of sinus and allergy symptoms following service as early as October 1998 and continued thereafter, which is considered competent and credible evidence of continuity symptomatology after service. As a result, the Board concludes that the Veteran should be afforded a VA examination in order to determine the likelihood that her current sinus disability is causally related to service, to include the treatment for sinusitis during service and the in-service maxilla surgery. See 38 C.F.R. § 3.159(c)(4) (2012); Duenas v. Principi, 18 Vet. App. 512 (2004) (holding that a medical examination should be afforded unless there is "no reasonable possibility" that an examination would aid in substantiating the veteran's claim). Therefore, the Board finds that a remand for a medical examination and opinion is necessary in order to render a fully informed decision in this case. In addition to the foregoing, the Board notes that the last statement of the case (SOC) pertaining to the issue of service connection for a sinus disability was issued in March 2010. However, review of the record reveals that the Veteran has submitted evidence relevant to the current claim since that time. Indeed, in December 2012, the Veteran submitted evidence directly to the Board in support of his claim, which included CT scans on her sinuses, which revealed septal deviation, right maxillary sinusitis, inferior turbinate hypertrophy, and allergic rhinitis. See January 2009 and December 2012 CT scans. The Veteran did not include a waiver of initial review by the RO and the Veteran's representative has not indicated that the Veteran wishes to waive referral of this evidence to the agency of original jurisdiction for initial review. Therefore, because this new evidence is pertinent to the claim on appeal, the evidence has not been reviewed by the RO, and the Veteran has not submitted an appropriate waiver, this evidence must be referred to the RO for consideration in the first instance. See 38 C.F.R. § 20.1304(c). In view of the foregoing, to ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim, and to ensure full compliance with due process requirements, the case is REMANDED for the following: 1. Schedule the Veteran for a VA examination to determine if she currently has a sinus disability that is related to her military service, to include the treatment received for sinusitis and maxilla surgery conducted therein. The claims file must be made available to the examiner for review and the report should reflect that such review was conducted. a. A diagnosis of any currently manifested sinus disability should be rendered. In this regard, all indicated tests and studies should be conducted to identify the Veteran's current sinus disability(ies). b. After reviewing all lay and medical evidence of record, the examiner is requested to offer an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or more) that the Veteran currently has a sinus disability that was incurred or is otherwise the result of her military service. c. In answering the foregoing, the VA examiner should consider the January 1997 service treatment record that shows the Veteran received treatment for sinusitis during service. The examiner must also consider whether the Veteran's sinus disability was incurred in, aggravated by, or is otherwise a result of the maxilla surgery performed during service in October 1990. d. In answering the foregoing, the examiner should note that the Veteran is considered competent to report the events that occurred during service, as well as the symptoms she experiences, including when those symptoms were incurred and how long they have persisted. e. The examiner must also consider the evidence showing continued symptoms of sinus and allergy problems after service, including complaints lodged as early as October 1998. f. A rationale must be provided for any opinion offered. If the foregoing cannot be answered on a medical or scientific basis without invoking processes relating to guesswork or judgment based upon mere speculation, the examiner must clearly specify in the examination report why this is so. 2. Upon completion of the above-requested development, the RO should readjudicate the claim on appeal, taking into account any new evidence submitted since the issuance of the most recent statement of the case and conducting any additional development deemed necessary. If the service connection claims remain denied, the Veteran and her representative should be provided with a Supplemental Statement of the Case as to the issues remaining on appeal, and afforded a reasonable period of time within which to respond thereto. The case should then be returned to the Board, if otherwise in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise informed, and she has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of the examination requested in this remand is to obtain information and evidence which may be dispositive of this appeal. Therefore, the Veteran is hereby placed on notice that, pursuant to 38 C.F.R. § 3.655, failure to cooperate by not attending the requested VA examinations may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566 569 (1991). 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). _________________________________________________ MARJORIE A. AUER 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) (2012).