Citation Nr: 1305697 Decision Date: 02/19/13 Archive Date: 02/27/13 DOCKET NO. 09-18 628A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial disability rating for a deviated nasal septum in excess of 10 percent. 2. Entitlement to an initial rating for sinusitis in excess of zero percent. REPRESENTATION Appellant (the Veteran) is represented by: The American Legion ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from September 1965 to September 1968. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2008 rating decision of the RO in Columbia, South Carolina, sent under cover letter from the RO in Atlanta, Georgia. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claims. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(c), (d) (2012). In January 2013 written argument, the Veteran's representative has expressed concern regarding two matters. First, he indicated that the record does not reflect the current severity of the Veteran's service-connected deviated nasal septum and sinusitis. According to the representative, the Veteran's nose was collapsing and he could not inhale through it. This in turn affected his sense of smell. The representative also suggested that there may be treatment records that are not contained in the claims file, and reported that another Veteran's VA treatment records were mistakenly placed in the claims file. The Board notes that the most recent VA examination in this case was in November 2007, more than five years ago. At the time of the examination, there was no nasal obstruction or sinusitis found; however, a July 2007 private treatment record from J.D.H., M.D. at August Ear, Nose, and Throat reveals that both "valves" would collapse on inspiration, and that the Veteran needed a "spreader graft to nasal tip to prevent alar collapse." There are no subsequent records from the private provider. It would appear that the Veteran's condition may have worsened, or that the most recent VA examination does not reflect the severity of the deviated septum and sinusitis. It would also appear that additional private records may be available that would provide greater detail as to the current manifestations and severity of the Veteran's service-connected sinusitis and deviated nasal septum. VA's duty to assist includes obtaining a thorough and contemporaneous examination where necessary to reach a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). See also Snuffer v. Gober, 10 Vet. App. 400 (1997). VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include records from private medical care providers. Such reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. A follow-up request is not required if a response to the initial request indicates that the records sought do not exist or that a follow-up request for the records would be futile. If VA receives information showing that subsequent requests to this or another custodian could result in obtaining the records sought, then reasonable efforts will include an initial request and, if the records are not received, at least one follow-up request to the new source or an additional request to the original source. See 38 C.F.R. § 3.159(c)(1) (2012). The Board has reviewed the treatment records in Virtual VA and has placed copies of those records in the claims file. The Board has also reviewed the claims file and can confirm that records belonging to a veteran of the same name, but of a different age and social security number, were contained in the claims file at the time of its arrival at the Board. These records have been removed and separately returned to the Atlanta RO. However, in light of the misfiled records in the claims file, on remand, the Veteran's claims file should be reviewed to ensure that all pertinent records are included, and that no records belonging to another veteran are included. Accordingly, the case is REMANDED for the following action: 1. Obtain private records identified by the Veteran, to include records from J.D.H., M.D. at August Ear, Nose, and Throat. Ensure that all pertinent VA medical records are in the Veteran's claims folder, and that records pertaining to another veteran removed. The Veteran has indicated ongoing treatment at the VAMC in Augusta, Georgia. If certain records cannot be obtained, the Veteran should be so notified and allowed the opportunity to obtain them himself. 2. Then, the Veteran should be afforded an appropriate VA evaluation to determine the current manifestations and degree of severity of his service-connected sinusitis and deviated nasal septum. The pertinent records in the claims folder must be made available to and reviewed by the examiner. All indicated studies should be performed. Findings pertinent to the rating schedule should be provided. The VA clinician should specifically comment on the findings from the private examiner that the Veteran's nose was collapsing and he could not inhale through it, and that, this in turn affected his sense of smell. 3. Readjudicate the remanded claims. If either benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ SARAH B. RICHMOND Acting 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).