Citation Nr: 1306989 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 07-26 599 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a sinus condition, allergies, and allergic rhinitis. 2. Entitlement to service connection for bilateral flat feet. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran had active military service from November 1987 to November 1991. These matters come before the Board of Veterans' Appeals (Board) from a May 2007 rating decision of the Department of Veteran Affairs (VA), Regional Office (RO), in Waco, Texas. Notably, the Veteran's sinus disorder claim was originally characterized as a new and material evidence claim. The Board notes, however, that this claim requires de novo review because additional evidence received includes the Veteran's service treatment records which were not previously considered in the original rating decision and which are pertinent to the claim. See 38 C.F.R. § 3.156(c). As such, the sinus claim has been recharacterized on the title page accordingly. The Board remanded the Veteran's claims in February 2009 to afford the Veteran a requested Travel Board hearing. In September 2011 the Veteran wrote to VA stating that he no longer wanted a Travel Board hearing. He testified before a Decision Review Officer at the RO in May 2012. There are no outstanding hearing requests. An August 2010 rating decision denied service connection for Gulf War syndrome (to include sleep disturbance, headaches, joint pain, muscle pain and fatigue) and denied service connection for memory loss. In October 2010 the Veteran clarified that he had not submitted a notice of disagreement with respect to the denial of Gulf War syndrome. In March 2011 the RO issued a statement of the case regarding the denial of service connection for memory loss. Thereafter the Veteran did not submit a substantive appeal. Consequently there are no issues related to Gulf War syndrome or memory loss currently in appellate status before the Board. The February 2009 Board decision remanded a claim for service connection for posttraumatic stress disorder (PTSD). In a December 2010 rating decision the RO granted the Veteran service connection for PTSD. Accordingly, only the issues listed on the cover sheet of this decision are currently in appellate status before the Board. A review of the documents in the Veteran's virtual electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 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 As noted above, the Veteran's claims file now contains the Veteran's service treatment records, which were previously thought to be unavailable and had not been considered by VA in adjudicating the Veteran's claims. The Veteran's claims must be remanded to the agency of original jurisdiction (AOJ) for consideration of the Veteran's service treatment records in the first instance. 38 C.F.R. § 20.1304(c). The Veteran claims that he is entitled to service connection for a sinus condition, allergies, and allergic rhinitis. Service treatment records dated in August and September 1998 show complaints of sinus pain and indicate diagnoses of rhinitis and allergic rhinitis. The post service VA treatment records show occasional complaints of chronic sinus congestion. A January 2009 VA treatment record notes that the Veteran had been receiving sinus treatment from an outside medical provider. Records of treatment for sinus complaints by non-VA medical personnel should be requested and obtained. See 38 C.F.R. § 3.159(c)(1). Additionally, as there is evidence of sinus problems during service, evidence of a current sinus condition, and as the Veteran has testified of chronic sinus problems ever since service, the Veteran should be provided a VA medical examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran also claims that he is entitled to service connection for bilateral flat fleet. The service treatment records verify the Veteran's testimony that he was noted to have flat feet on examination for entry into service. The post service treatment records show complaints of flat feet and the Veteran has asserted that his flat feet were aggravated during service and have bothered him ever since service. Accordingly, the Veteran should be provided a VA medical examination of his feet. See McLendon. The Veteran's updated VA treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names and addresses of all private medical providers who have provided him treatment for a sinus condition or a flat feet disability. After obtaining the necessary authorizations from the Veteran, request copies of all private treatment records identified by the Veteran. If, after making reasonable efforts to obtain named records the AMC is unable to secure same, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Obtain copies of the Veteran's VA treatment records dated from October 2010. 3. When the above actions have been accomplished afford the Veteran an appropriate examination of his sinuses. The claims folder must be made available to the examiner. All necessary studies and tests, which may include X-rays of the Veteran's sinuses, should be conducted. The examiner should describe and diagnose all current sinus disabilities found to be present, to include sinusitis, allergic rhinitis, etc. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed sinus disability, including sinusitis and/or allergic rhinitis, had its clinical onset during active service or is otherwise related to service. In providing this opinion, the examiner's attention is directed to the Veteran's sinus complaints during service and the Veteran's report of a continuity of symptomatology of sinus problems since service. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 4. When the Veteran's VA treatment records, and any private treatment records identified, have been obtained, afford the Veteran a VA examination concerning his claim for service connection for bilateral flat feet. The claims folder must be made available to the examiner. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted and included in the examination report. The examiner should provide an opinion on whether it is at least as likely as not (i.e. 50 percent or greater possibility) that the Veteran's preexisting bilateral flat foot disability was permanently increased in severity during service. If the examiner determines that the Veteran's preexisting flat foot disability did increase in severity during service, the examiner must state whether it is clear and unmistakable (i.e., undebatable) that any increase in disability was due to the natural progress of the disease. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 5. After completion of the above development, the Veteran's claims should be readjudicated. If any determination remains denied, 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 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). _________________________________________________ S. S. TOTH 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).