Citation Nr: 1308093 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 06-22 929 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a sinus condition and chronic allergies. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N. Kroes, Counsel INTRODUCTION The Veteran served on active duty from April 1998 to April 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In July 2010, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. In April 2011, the Board remanded this issue, along with claims for entitlement to service connection for a left hip disability, a left knee disability, and a gynecological disorder, for further evidentiary development. In May and October 2012 rating decisions, the Appeals Management Center (AMC) granted service connection for chondromalacia of the left patella, subluxation of the left knee, left hip referred pain, scars, and folliculitis "boils" (carbuncle). This satisfied the appeal as to the issues other than entitlement to service connection for a sinus condition and chronic allergies. The requested development was completed regarding that issue and the case has now been returned to the Board for further appellate action. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the AMC, in Washington, DC. VA will notify the Veteran if further action is required. REMAND While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claim. See 38 C.F.R. § 19.9 (2012). The Veteran asserts that she has sinusitis or chronic allergies as a result of her military service. She was afforded VA examinations in June 2004 and October 2011. In June 2004, the examiner diagnosed sinus problems secondary to allergies and recurring sinus infections. However, in October 2011, the examiner opined that the Veteran did not have chronic allergies or sinusitis, citing to previous treatment records and computed axial tomography (CAT) scans of the sinuses. Since that examination, the Veteran submitted additional private treatment records showing assessments of sinusitis in 2011 and 2012. Given the newly acquired treatment records showing sinusitis, another VA medical examination is in order. Specific instructions to the examiner are detailed below. Since the Board has determined that a VA examination is necessary in the instant case, the Veteran is hereby informed that 38 C.F.R. § 3.326(a) (2012) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 (2012) address the consequences of a veteran's failure to attend scheduled medical examinations. That regulation provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination scheduled in conjunction with an original claim, the claim will be decided based on the evidence of record. Additionally, corrective notice pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) is required. In this case, the notice provided did not include an explanation as to the information or evidence needed to establish a disability rating or effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such should be remedied on remand. Accordingly, the case is REMANDED for the following action: 1. Issue the Veteran corrective VCAA notice that includes an explanation as to the information or evidence needed to establish a disability rating and effective date for the claim on appeal, in accordance with Dingess, supra. 2. Then, schedule the Veteran for a VA sinus examination to determine the nature of any sinusitis and/or allergies, and to obtain an opinion as to whether such is possibly related to service. The entire claims file (both the paper file and any electronic portion of the file) must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner should address the following: (a.) Does the Veteran have chronic sinusitis or allergies? (b.) If so, is it at least as likely as not (50 percent probability or greater) that the current chronic sinusitis and/or allergies arose during service or is otherwise related to service? The examiner is asked to consider the VA opinion offered in October 2011 and the private treatment records from 2011 and 2012 (showing assessments of sinusitis) when forming an opinion. A rationale for all opinions expressed should be provided. 3. Then, the record should again be reviewed. If the benefit sought on appeal remains denied, then the Veteran and her representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ Laura H. Eskenazi Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).