Citation Nr: 1332434 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 09-07 112A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE 1. Entitlement to service connection for headaches, to include as secondary to a sinus disorder. 2. Entitlement to service connection for a sinus disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant (Veteran) ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from March 1979 to March 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2007 and August 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In July 2011, the Veteran presented testimony relevant to the appeal before the undersigned Veterans Law Judge at a videoconference Board hearing. A transcript of the hearing is associated with the record. In October 2011, the Board denied service connection for bilateral hearing loss, headaches, a sinus disorder, vertigo, and residuals of a left wrist laceration. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In December 2012, the VA's General Counsel and the Veteran's attorney (parties) filed a Joint Motion for Partial Remand (Joint Motion) asking the Court to vacate the portion of the Board's decision denying service connection for headaches, a sinus disorder, and a laceration to the left wrist and remand the matters for further appellate review. The Joint Motion specifically stated that the Veteran did not contest the portion of the decision denying service connection for bilateral hearing loss and vertigo and asked the Court to affirm that portion of the Board's decision. In December 2012, the Court issued an order granting the Joint Motion, vacated the Board decision, and remanded the case to the Board. In June 2013, the Board granted service connection for a residual scar from the left wrist laceration and remanded the issues of service connection for a sinus disorder and service connection for headaches, to include as secondary to a sinus disorder, for a VA medical examination with medical opinion. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In the June 2013 Remand, the Board, in pertinent part, directed the RO to schedule the Veteran for a VA medical examination and obtain a medical opinion addressing the likelihood that the Veteran's current sinus disorder had its onset during, or was otherwise causally or etiologically related to, active military service. Because the parties to the Joint Motion directed the Board to address the significance of certain upper respiratory complaints noted in the service treatment records, the Board instructed the VA medical examiner to address the September 1979, January 1980, January 1981, and March 1981 service treatment record entries when rendering the medical opinion. After review of the record, the Board finds that there has not been sufficient compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Although the Veteran was provided with a VA medical examination in July 2013 in connection with the service connection appeal for a sinus disorder, and the VA medical examiner noted that there was no evidence or documentation of allergic rhinitis or sinusitis in the service records, the VA medical examiner did not specifically address the September 1979, January 1980, January 1981, and March 1981 service treatment record entries; therefore, an addendum medical opinion is needed. Accordingly, the issues of service connection for a sinus disorder and service connection for headaches are REMANDED for the following actions: 1. Obtain an addendum medical opinion from the medical professional who conducted the July 2013 VA medical examination (or another appropriate medical professional if the July 2013 VA medical examiner is unavailable). The Veteran should not be scheduled for another VA medical examination unless needed to provide the requested medical opinion. All relevant documents must be made available to and reviewed by the examiner in rendering the opinion. The examiner must confirm that the record was reviewed in the addendum report. a. Based on review of the appropriate records, the examiner should state, for each diagnosis of a sinus disorder, whether it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that the current sinus disorder had its onset during, or is otherwise causally or etiologically related to, active military service. In rendering the medical opinion, the examiner must address the following entries in the Veteran's service treatment records: * (1) the complaint of problems breathing and a runny nose in September 1979; * (2) the complaint of difficulty breathing for one month in January 1980; * (3) the complaint of cold symptoms in January 1981; * (4) the complaint of breathing problems treated with commercial medication in March 1981. b. If, and only if, the examiner finds that a sinus disorder is at least as likely as not related to service, the examiner should state whether it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that the Veteran's headaches are (1) caused or (2) aggravated (i.e., permanently worsened beyond the normal progression, as opposed to temporary or intermittent flare-ups of symptomatology) by the sinus disorder. If aggravation is found, the examiner should attempt to identify the baseline level of severity of the headache disability before the onset of aggravation. A rationale should be provided for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report. 2. After any additional notification and/or development deemed necessary is undertaken, the remanded issues should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and the representative should be provided with a Supplemental Statement of the Case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and the representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). These claims 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). _________________________________________________ K. J. ALIBRANDO 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) (2013).