Citation Nr: 1309652 Decision Date: 03/21/13 Archive Date: 04/01/13 DOCKET NO. 09-24 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a sinus condition. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from May 2004 to July 2007. This matter comes to the Board of Veterans' Appeals (Board) from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In September 2012 this matter was last before the Board, at which time it was remanded for further development. At that time, the Board also denied a claim for service connection of bilateral hearing loss. 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 In February 2011 this matter was first remanded by the Board to afford the Veteran a VA nose, sinus, larynx and pharynx examination, to include examination under the established protocol for undiagnosed illness examinations. In March 2011 an examination was obtained; however, in September 2012, when this matter was last before the Board, it was remanded again to obtain an addendum to the March 2011 VA sinus examination report. The addendum was sought to specifically address whether the Veteran had signs and symptoms representing an undiagnosed chronic illness relating to the upper respiratory system. See 38 C.F.R. § 3.317 (2012). Saliently, the Board notes the presence of a May 31, 2011, VA OEF/OIF post-deployment transition provider note, which documents the Veteran's complaints of coughing, gagging and bringing up phlegm in the mornings. He also reported that he was taking Zyrtec for sneezing and itchy eyes on and off. He started taking the Zyrtec since he returned from deployment. The physician diagnosed allergic rhinitis and noted that the Veteran had taken Zyrtec for relief since returning from his deployment. No examination has addressed the etiology of allergic rhinitis and the Board notes that service connection for having an undiagnosed disability as per 38 C.F.R. § 3.317 would no longer be appropriate as the Veteran has a diagnosed disability. Upon remand, the etiology of allergic rhinitis must be addressed. 38 C.F.R. § 3.159(c)(4) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, VA treatment records dating from July 2012 should be obtained. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record). Finally, the Board notes that the Veteran is in receipt of Social Security Administration (SSA) disability benefits. See VA SWS OIF/OEF Case Management note dated July 8, 2009. It does not appear, however, that the RO attempted to obtain the administrative decision and the records upon which SSA relied in reaching its decision. The Court of Appeals for Veterans Claims has held that VA's duty to assist encompasses obtaining medical records that supported an SSA award of disability benefits as they may contain information relevant to VA claims. Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992); see also 38 U.S.C.A. § 5103A(c)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2011); Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Those records should be requested, and associated with the Veteran's claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records dating from July 2012. 2. Request, directly from the SSA, complete copies of any determination on a claim for disability benefits from that agency as well as the records, including medical records, considered in adjudicating the claim. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, 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. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of allergic rhinitis. The claims folder should be made available to the medical professional providing the opinion for review in conjunction with rendering the opinion. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his service treatment records, lay assertions, and the pertinent medical evidence. Based upon the examination and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the allergic rhinitis diagnosed by VA in May 2011, and any other sinus disability found on examination, is attributable to service. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reason(s) for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 4. Ensure that the information provided in the obtained examination report satisfies the criteria above and, if not, return the report as insufficient. Then, after any further development deemed necessary, readjudicate the issue on appeal. The case should then be returned to the Board for appellate review, if indicated. 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). _________________________________________________ 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).