Citation Nr: 1310340 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 06-05 346 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for allergic rhinitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from August 1982 to June 1986. This matter initially before the Board of Veterans' Appeals (Board) on an appeal from a November 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board remanded the case for further development in January 2010. That development was completed, and the case was subsequently returned to the Board for appellate review. The Board issued a decision in September 2011 denying, in pertinent part, service connection for allergic rhinitis. The appellant then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2012 Order, the Court vacated the portion of the September 2011 decision denying service connection for allergic rhinitis and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). 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 The Veteran was provided a VA examination in April 2010 in connection with his claim for service connection for allergic rhinitis. The examiner opined that it was less likely than not that the Veteran's current allergic rhinitis was related to any incident of active military service. She commented that allergic rhinitis was not a condition that developed as a result of an incident. However, the parties to the Joint Motion determined that the April 2010 VA examiner's opinion was inadequate. In particular, they noted that the examiner did not address whether the Veteran's allergic rhinitis had its onset during service, was related to his injury and symptoms in service, or was aggravated by the service-connected sinus disability. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, the Board finds that an additional medical opinion is necessary in this case. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should send the Veteran a notice letter in connection with his claim for service connection for allergic rhinitis. The letter should inform him of what evidence is necessary to substantiate a claim on secondary basis. 2. The Veteran should be afforded a VA examination to determine the nature and etiology of his current allergic rhinitis. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, statements, and assertions. It should be noted that the Veteran is separately service-connected for post-operative left frontal sinusitis. He sustained a sinus injury in service in September 1982 and underwent surgery in November 1982 to repair his frontal sinus injuries. In August 1983, he was noted as having post-nasal drip, rhinorrhea, and frontal headaches since the sinus injury. He was also diagnosed with post-nasal drip and allergic symptoms in September 1983. The examiner should state whether it is at least as likely as not that that the Veteran's current allergic rhinitis had its onset in service or is otherwise directly related to the Veteran's military service, including his sinus injury and symptomatology therein. The examiner should also state whether it is at least as likely as not that the Veteran's current allergic rhinitis was either caused by or permanently aggravated by his service-connected postoperative left frontal sinusitis. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) 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. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing the above actions, the RO should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 4. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the appellant and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. This SSOC should set forth the provisions of 38 C.F.R. § 3.310. Thereafter, if necessary, the case should be returned to the Board for appellate disposition. 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). _________________________________________________ JESSICA J. WILLS 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).