Citation Nr: 1319632	
Decision Date: 06/18/13    Archive Date: 06/27/13

DOCKET NO.  10-17 405	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of service connection for a left heel disability.

2.  Whether new and material evidence has been received to reopen a claim of service connection for cold injury residuals of the lower extremities (claimed as frostbite of the feet).

3.  Whether new and material evidence has been received to reopen a claim of service connection for a dental disability.

4.  Entitlement to service connection for sinus headaches, to include whether new and material evidence has been received to reopen a claim of service connection for sinusitis.


ATTORNEY FOR THE BOARD

B. Elwood, Associate Counsel
INTRODUCTION

The Veteran served on active duty from March 1974 to March 1994.  He received the Army Commendation Medal.

These matters initially came before the Board of Veterans' Appeals (Board) from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  In that decision, the RO denied the Veteran's petition to reopen a claim of service connection for sinus headaches as new and material evidence had not been submitted and denied entitlement to service connection for a left heel disability, cold injury residuals of the lower extremities, and periodontal disease.  

In his November 2008 notice of disagreement, the Veteran requested a hearing before a Decision Review Officer (DRO) at the RO.  In July 2009, he withdrew his hearing request.  

In November 2011, the Board granted the Veteran's petition to reopen the claim of service connection for sinus headaches and denied the underlying claim.  The Board also remanded the issues of whether new and material evidence had been received to reopen claims of service connection for a left heel disability, cold injury residuals of the lower extremities, and a dental disability for further development.  The Veteran appealed the Board's denial of service connection for sinus headaches to the United States Court of Appeals for Veterans Claims (Court).

In October 2012, the Court set aside the Board's November 2011 decision, in part, and remanded the case for readjudication in compliance with directives specified in a September 2012 Joint Motion filed by counsel for the Veteran and VA.

Although the Veteran's initial service connection claim referred to chronic headaches and both the agency of original jurisdiction (AOJ) and the Board have previously characterized the issue on appeal as being entitlement to service connection for sinus headaches, the Court has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled.  Clemons v. Shinseki, 23 Vet. App. 1 (2009). As explained below, the evidence reflects that the Veteran's reported headaches are the result of sinusitis.  Thus, the Board has recharacterized the issue as entitlement to service connection for sinus headaches, to include whether new and material evidence has been received to reopen a claim of service connection for sinusitis.  The Joint Motion was premised on the fact that the Board had not considered whether the Veteran's claim of service connection for sinus headaches encompassed a petition to reopen the claim of service connection for sinusitis. 

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims.  The documents in this file have been reviewed and considered as part of this appeal.

As noted by the Board in its November 2011 decision and remand, the Veteran raised the issues of entitlement to earlier effective dates for the grant of service connection for dyshidrotic type dermatitis of the hands and feet, bilateral peripheral neuropathy of the upper and lower extremities, and hypertension (see the VA Form 9 dated in April 2010).  These issues have not been adjudicated by the AOJ.  Therefore, the Board does not have jurisdiction over them, and they are again referred to the AOJ for appropriate action.

The issue of whether new and material evidence has been received to reopen a claim of service connection for a dental disability and the underlying issue of entitlement to service connection for sinusitis are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  In a June 1995 rating decision, the RO denied the Veteran's claims of service connection for a left heel disability and cold injury residuals of the lower extremities as there was no medical evidence of any current service-related left heel disability or cold injury residuals of the lower extremities; the Veteran did not appeal this decision and new and material evidence was not received within a year of its issuance.

2.  The Veteran's claim of service connection for sinusitis was denied in a June 2007 Board decision as there was no medical evidence of any current sinusitis.

3.  Evidence received since the June 1995 RO decision includes information that was not previously considered, but which does not relate to an unestablished fact necessary to substantiate the claims of service connection for a left heel disability and cold injury residuals of the lower extremities, the absence of which was the basis of the previous denials. 

4.  Evidence received since the June 2007 Board decision includes information that was not previously considered and which relates to an unestablished fact necessary to substantiate the claim of service connection for sinusitis, the absence of which was the basis of the previous denial.


CONCLUSIONS OF LAW

1.  The RO's June 1995 decision that denied the claims of service connection for a left heel disability and cold injury residuals of the lower extremities and the Board's June 2007 decision that denied the claim of service connection for sinusitis are final.  38 U.S.C.A. §§ 7104(b), 7105(d)(3) (West 2002); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1100(a), 20.1103 (2012).

2.  The evidence received since the June 2007 Board decision is new and material and, therefore, sufficient to reopen the claim of service connection for sinusitis.  38 U.S.C.A. §§ 5107(b), 5108 (West 2002); 38 C.F.R. § 3.156(a).

3.  The evidence received since the June 1995 RO decision is not new and material and, therefore, insufficient to reopen the claims of service connection for a left heel disability and cold injury residuals of the lower extremities.  38 U.S.C.A. §§ 5107(b), 5108; 38 C.F.R. § 3.156(a).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

In light of the Board's favorable decision in reopening the claim of service connection for sinusitis, the claim is substantiated, and there are no further VCAA duties as to that issue at this time.  Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).

As for the petition to reopen the claims of service connection for a left heel disability and cold injury residuals of the lower extremities, under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

In the context of a petition to reopen, the Court has held that VCAA notice (1) must notify a claimant of the evidence and information that is necessary to reopen the claim and (2) must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought by the claimant.

The Court elaborated that the VCAA requires, in the context of a claim to reopen, that VA look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial.  Therefore, the question of what constitutes material evidence to reopen a claim of service connection depends on the basis on which the prior claim was denied.  Kent v. Nicholson, 20 Vet. App. 1 (2006). 

In a December 2011 letter, the RO informed the Veteran of a date and the correct bases of the previous denials of his claims of service connection for a left heel disability and cold injury residuals of the lower extremities.  The RO also informed him of the appropriate definitions of new and material evidence and of the evidence needed to substantiate the underlying claims.  The December 2011 letter thereby met some of the requirements of Kent.

There was a timing deficiency in that the December 2011 letter was sent after the initial adjudication of the Veteran's claims.  This timing deficiency was cured by readjudication of the claims in a September 2012 supplemental statement of the case.  Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).

A pre-adjudication letter dated in October 2007 satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist the Veteran in obtaining and the evidence it was expected that he would provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).

The claimant's Veteran status has been substantiated.  He was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in the October 2007 letter.

The December 2011 letter did not meet all of the requirements of Kent to the extent that it provided the incorrect date of the most recent final denial of the claims of service connection for a left heel disability and cold injury residuals of the lower extremities.  The letter referred to the March 2008 denial of the claims of service connection for those disabilities rather than the June 1995 rating decision which denied the claims.

To the extent that the Veteran was not provided with pre-adjudication notice of some of the correct information required by Kent, prejudicial error occurs in the context of VCAA notice only when such error affects "the essential fairness of an adjudication" or "has the natural effect of producing prejudice."  Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007).  Appellants must generally identify "with considerable specificity": (1) how the VCAA notice was defective and (2) how the lack of notice and evidence was prejudicial or affected the essential fairness of the adjudication.  Id.  See also Shinseki v. Sanders, 129 S.Ct. 1696 (2009).

Actual knowledge of the correct date of the most recent final denial of the claims of service connection for a left heel disability and cold injury residuals of the lower extremities has been demonstrated as the Veteran received the June 1995 rating decision in that it was sent to his address of record and was not returned as undeliverable.  Thus, no showing of prejudice has been made in this case.

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. 
§ 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).

VA obtained the Veteran's service treatment records and all of the identified relevant post-service VA treatment records.  The Veteran has not reported, and the evidence does not otherwise reflect, any relevant post-service private medical treatment for a left heel disability or cold injury residuals of the lower extremities.  In addition, the Veteran was afforded VA examinations to assess the nature and etiology of any current left heel disability and cold injury residuals of the lower extremities.

In its November 2011 remand, the Board instructed the AOJ to, among other things, send the Veteran a VCAA notice letter and provide him with information in accordance with Kent.  As explained above, the Veteran was sent a VCAA notice letter in December 2011 which provided information in accordance with Kent.  Therefore, the AOJ substantially complied with the Board's pertinent November 2011 remand instructions and VA has no further duty to attempt to obtain any additional records or conduct additional examinations with respect to the claims being decided herein.  See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998).

Analysis

Generally, an RO decision denying a claim which has become final and a claim denied in a Board decision may not thereafter be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(d)(3).  The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.  38 U.S.C.A. § 5108.

New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

The newly presented evidence is presumed to be credible for purposes of determining whether it is new and material.  Savage v. Gober, 10 Vet. App. 488 (1997).

For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis.  Evans v. Brown, 9 Vet. App. 273, 285 (1996).

A. Sinusitis

In this case, the Board denied the Veteran's claim of service connection for sinusitis in its June 2007 decision on the basis that there was no medical evidence of any current sinusitis.  The Board's decision was final when issued.  38 U.S.C.A. § 7104(b); 38 C.F.R. § 20.1100(a).

Pertinent new evidence received since the June 2007 denial includes a January 2008 VA examination report which indicates that a CT scan of the sinuses revealed mild right maxillary sinusitis.  The physician who conducted the examination opined that the Veteran's reported headaches were likely sinus headaches.  In light of the fact that the Veteran was treated for headaches and sinus problems in service and his post-service medical records reflect a long history of headaches, this additional evidence pertains to an element of the claim that was previously found to be lacking and also raises a reasonable possibility of substantiating the claim by showing that the Veteran has a current sinus disability with associated headaches and that this disability may be related to service.  See Shade v. Shinseki, 24 Vet. App. 110 (2010) (evidence raises a reasonable possibility of substantiating a claim if it would trigger VA's duty to provide an examination).  The evidence is, therefore, new and material, and the claim of service connection for sinusitis is reopened.

B. Left Heel Disability and Cold Injury Residuals of the Lower Extremities

The RO denied the Veteran's claims of service connection for a left heel disability and cold injury residuals of the lower extremities in June 1995.  Although the RO did not specifically discuss the basis for this decision, it is apparent that the claims were denied because there was no medical evidence of any current service-related left heel disability or cold injury residuals of the lower extremities.  Specifically, it was explained that service treatment records from October 1979 revealed treatment for complaints of foot pain and included a diagnosis of probable chill blanes.  This condition was shown to have resolved without residuals.  Service treatment records also showed diagnoses of bilateral posterior tendonitis.  A VA examination revealed a bilateral pes planus deformity with a slight arch formation with toe raise.  The Veteran was able to toe walk without any difficulty, however he complained of pain with heel walking.  There was full symmetric ankle range of motion.  He was very tender to palpation over his left heel at the insertion of the Achilles tendon, but there was normal foot motion bilaterally.  Also, X-rays of the feet revealed no arthritis or evidence of fracture.  The Veteran was notified of the RO's decision, he did not appeal, and new and material was not received within one year of the decision.  Thus, the June 1995 decision became final.  See 38 U.S.C.A. § 7105(d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103.

Pertinent new evidence received since the June 1995 denial includes VA and private treatment records, VA examination reports, and various statements submitted by the Veteran and his prior representative.  The newly submitted records include reports of left heel pain and tenderness, foot pain, tenderness, swelling, stiffness, weakness, heat, fatigability, numbness, tingling, and calluses, lower extremity pain, aches, and spasms, pes planus, abnormal weight bearing, and X-ray evidence of degenerative changes in the feet.  However, some of these symptoms (including bilateral foot and left heel pain, left heel tenderness, and leg pain) had already been presented and considered as part of the June 1995 decision.  Moreover, the majority of the other leg and foot symptoms were attributed to disabilities such as peripheral neuropathy and pes planus.  Service connection has already been granted for dyshidrotic type dermatitis of the feet, bilateral peripheral neuropathy of the lower extremities, and bilateral pes planus with arthritis.  In its November 2011 decision, the Board denied service connection for other lower extremity disabilities, including a bilateral calf disability, a bilateral Achilles disability, bilateral plantar fasciitis, and bilateral knee and ankle disabilities.

During VA examinations dated in January 2008, the Veteran reported daily and persistent bilateral foot pain (including pain of the dorsum, arch, heel, toes, and ankles), bilateral leg and foot numbness and tingling, and burning pain in the lower extremities.  The pain was 6/10 in intensity and was aggravated by moving, driving, and walking.  He took medication for the pain, rested and massaged his feet, and wore diabetic shoes due to diabetes-related peripheral neuropathy.  However, the pain generally could not be alleviated.  

Examinations revealed tenderness with pressure on the plantar heel aspect, callosities, mild pronation, callous formation at the lateral medial plantar aspect of the 1st toe bilaterally, a moderately impaired dorsalis pedis pulse (2+), and a slightly antalgic gait.  Sensation to light touch and monofilament was diminished in both lower feet in a stocking distribution.  However, the feet were warm, motor strength was normal (5+) in the lower extremities, there was no edema or lacerations, and there was no deformity of the nails (although the Veteran did have cold intolerance).  The Veteran was diagnosed as having mild bilateral pes planus, callous formation on the lateral aspect of the 1st metatarsal heads bilaterally, and bilateral diabetic peripheral neuropathy of the lower extremities.  The examiners who conducted the examinations concluded that there was no objective evidence of any current left heel disability and that there were no signs or symptoms of residual cold injury in the lower extremities.  The pain, numbness, and tingling in the lower extremities was more consistent with peripheral neuropathy and was less likely due to any cold injury.

In sum, none of the evidence received since the June 1995 denial of the Veteran's claims of service connection for a left heel disability and cold injury residuals of the lower extremities indicates that he has been diagnosed as having any such service-related disabilities.  The Veteran has contended that he has such disabilities.  However, as a lay person, he can only comment as to symptoms and immediately-observable relationships.  He lacks the expertise in this case, not involving such an immediately observable cause-and-effect relationship, to conclude that his current lower extremity and foot symptoms are related to any specific left heel disability or cold injury residual, as opposed to some other cause.  Rather, it would require medical expertise to evaluate the symptoms, consider all the potential causes, and determine that one was a more likely cause than another.  Hence, the Veteran's opinion on this question is not competent evidence and does not constitute material evidence for purposes of reopening the claims of service connection for a left heel disability and cold injury residuals of the lower extremities.  38 C.F.R. § 3.159(a)(1), (2) (2012).

The fact remains that there is no new competent medical or lay evidence reflecting that the Veteran has a current service-related left heel disability or cold injury residuals of the lower extremities.  Also, the Veteran has not alluded to the existence of any such evidence.  Hence, there is no new and material evidence pertaining to the basis for the prior final denials.  

While VA has an obligation to assist the Veteran in the development of his claim, it is the Veteran's responsibility to present and support a claim of service connection. 38 U.S.C.A. § 5107(a) (West 2002); see also Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009).  As the Veteran has not identified or presented new evidence that he has a current service-related left heel disability or cold injury residuals of the lower extremities, and the absence of such evidence was the basis for the prior final denials, new and material evidence has not been received and the appeal must be denied.


ORDER

As new and material evidence has been received, the claim of service connection for sinusitis is reopened, and to this extent the appeal is granted.

As new and material evidence has not been received, the claim of service connection for a left heel disability is not reopened, and the appeal is denied.

As new and material evidence has not been received, the claim of service connection for cold injury residuals of the lower extremities is not reopened, and the appeal is denied.




REMAND

Once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

In this case, the Veteran was afforded a VA examination in January 2008 to assess the nature and etiology of his claimed headaches.  During the examination he reported intermitted headaches (i.e. at least two a month) with occasional nausea.  He took medications to treat the headaches.  Also, he experienced nose and throat congestion.  Examination revealed mild tenderness over the right maxillary and frontal areas.  The physician who conducted the examination opined that the Veteran's headache symptoms were not consistent with migraines and that they were more likely sinus headaches.  He explained that a CT scan of the sinuses revealed mild right maxillary sinusitis.

The January 2008 examination is inadequate because although the examiner opined that the Veteran's headaches were likely related to sinusitis, the examiner did not provide any opinion as to the etiology of the sinusitis.  An adequate medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  Thus, a remand is necessary to afford the Veteran a new VA examination to assess the etiology of his current sinusitis with associated headaches.

VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.  38 C.F.R. § 4.2 (2012); see 38 C.F.R. § 19.9 (2012).  Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination."  Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993).

Additionally, the VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody.  38 C.F.R. § 3.159(c)(4).

In an April 2008 letter, Dr. Sedlak reported that he treated the Veteran for dental problems.  When VA becomes aware of private treatment records it will specifically notify the Veteran of the records and of the need to provide a release for VA to obtain the records.  If the Veteran does not provide the release, VA must ask the Veteran to obtain the records.  38 C.F.R. § 3.159(e)(2).  These steps have not yet been taken with regard to any relevant treatment records from Dr. Sedlak and there are no treatment records from this treatment provider in the claims file or among the Veteran's paperless records in the Virtual VA system.  Any such records pertaining to treatment for dental problems are directly relevant to the issue of whether new and material evidence has been received to reopen the claim of service connection for a dental disability.  Thus, a remand is also necessary to attempt to obtain relevant private treatment records from Dr. Sedlak.

Moreover, the Veteran contended in a March 2007 letter that there was clear and unmistakable error (CUE) in a June 1995 rating decision that denied entitlement to service connection for a dental disability.  The RO has not adjudicated the claim of CUE and the Board is precluded from adjudicating that claim in the first instance. Jarrell v. Nicholson, 20 Vet. App. 326, 333-34 (2006).  The CUE issue is inextricably intertwined with the issue of whether new and material evidence has been received to reopen the claim of service connection for a dental disability.  See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other).

It would be premature for the Board to decide the currently appealed petition to reopen prior to adjudication of the Veteran's claim of CUE.  Therefore, his request to reopen his claim of service connection for a dental disability is deferred to avoid piecemeal adjudication.  Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009).
Accordingly, the case is REMANDED for the following action:

1. The AOJ shall adjudicate the Veteran's claim of CUE in the June 1995 rating decision that denied his claim of service connection for a dental disability.  This issue shall not be certified to the Board unless a sufficient substantive appeal is submitted.

2.  Ask the Veteran to identify the location and name of any private medical facility where he has received post-service treatment for a sinus disability, headaches, and a dental disability.  He shall also be asked to include the dates of any such treatment.

The Veteran shall also be asked to complete an authorization for VA to obtain all records of his treatment for a sinus disability, headaches, and a dental disability from Dr. Sedlak and from any other sufficiently identified private treatment provider from whom records have not already been obtained.  All efforts to obtain these records must be documented in the claims file.

If the Veteran fails to furnish any necessary releases for private treatment records, he shall be advised to obtain the records and submit them to VA.

If any putative records are unavailable, the Veteran shall be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning his claims.

3.  After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA examination to determine the etiology of his current sinus disability and associated headaches.  All indicated tests and studies shall be conducted.

The claims folder, including this remand and any relevant records contained in the Virtual VA system, along with records obtained pursuant to this remand, must be sent to the examiner for review; consideration of such shall be reflected in the completed examination report or in an addendum.

With respect to any current sinus/headache disability identified (i.e. any sinus/headache disability diagnosed since March 2007, including sinusitis), the examiner shall answer the following question:

Is it at least as likely as not (50 percent probability or more) that the current sinus/headache disability had its onset in service, is related to the Veteran's sinus and headache problems in service, or is otherwise related to a disease or injury in service?

In formulating the above opinion, the examiner must acknowledge and comment on all sinus/headache disabilities diagnosed since March 2007 (including the diagnosis of sinusitis provided during the January 2008 VA examination), all instances of treatment for sinus and headache problems in the Veteran's service treatment records, and the evidence of treatment for sinus and headache problems in the years since service.  
The examiner must provide reasons for each opinion given.

The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions.  If the examiner rejects the Veteran's reports regarding symptoms, the examiner must provide a reason for doing so.

If the examiner determines that he or she cannot provide an opinion without resorting to speculation, the examiner shall explain the inability to provide an opinion, identifying precisely what facts could not be determined.  In particular, he or she shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion.  Jones v. Shinseki, 23 Vet. App. 382, 389 (2010).  (The AOJ shall ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.)

4.  The AOJ shall review the examination report to ensure that it contains the information and opinions requested in this remand and is otherwise complete.

5.  If any benefit sought on appeal remains denied, the AOJ shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board.

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).




______________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs