Citation Nr: 1331097 Decision Date: 09/26/13 Archive Date: 09/30/13 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 March 2013 this matter was last before the Board at which time it was remanded for further development. 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 When this matter was last before the Board, it was remanded, inter alia, to afford the Veteran a VA examination to address his claim, and to obtain outstanding VA medical records. In response to the Board's remand directives, VA records dated from July 2012 were associated with the claims file and the Veteran was afforded a VA examination in June 2013. The Board's remand directives stated that the examination was to be conducted based upon a full review of the claims file. The June 2013 VA examiner rendered a negative etiological opinion, largely based on his belief that the Veteran did not have any sinus condition. Yet, the examiner did check a box on the Disability Benefits Questionnaire that the Veteran had "rhinitis." The examination is conflicting in this regard, and the Board concludes that explanation is thus necessary. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). In rendering the opinion, the VA examiner referenced VA records dated in December 2008, and March and May 2011. In this regard, the Board notes that a VA record dated in September 2012 documents the Veteran's complaint of chronic sinus issues and an assessment of "sinus issues/allergic rhinitis," which was not acknowledged. Accordingly, the examination report is inadequate and must be returned. 38 C.F.R. § 4.2. See also Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Board remand "confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders"). Accordingly, the case is REMANDED for the following action: 1. Return the file to the examiner who provided the last opinion for an addendum. If unavailable, schedule the Veteran for a new VA examination by an appropriate medical professional for the purpose of ascertaining the current nature and likely etiology of his claimed sinus condition, to include allergic rhinitis. The claims folder should be made available to the medical professional. The examiner must review the claims files, giving particular attention to the 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 (i.e., a 50 percent probability or greater) that the Veteran's claimed sinus condition, including allergic rhinitis - which was diagnosed during the pendency of the claim - is attributable to service. An opinion is requested of the examiner as to whether the sinus condition/allergic rhinitis, which has been diagnosed during the claim period, is related to service, even if no evidence of a sinus disorder is found on examination. In rendering this opinion, the examiner's attention is directed to the indication of "rhinitis" noted by the checked box in the June 2013 VA examination report as well as a September 2012 VA medical record (on Virtual VA) assessing "sinus issues/allergic rhinitis." If the examiner is unable to access the September 2012 VA medical record through electronic means, the AMC should ensure he or she is able to review the document through other means. The examiner's attention is also directed to the Veteran's report that he was exposed to smoke from burning trash/feces, vehicle exhaust fumes, industrial pollution as well as sand and dust while he was deployed. Any and all opinions must be accompanied by a complete rationale. 2. After the development requested above has been completed to the extent possible, review the record and readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto before this case is returned to the Board. 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).