Citation Nr: 1333144 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 10-06 356 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a sinus disorder. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1969 to May 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Jackson, Mississippi, Department of Veterans Affairs (VA) Regional Office (RO). In April 2012, a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In July 2012, the Board, decided claims of service connection for a neurological disorder, hemorrhoids, kidney disease, and hypertension, and remanded remaining claims for further development. In April 2013, the Board remanded the matter at issue (listed on the preceding page) to the RO, along with claims of service connection for a skin disorder and residuals of carbon dioxide poisoning. In August 2013, the RO granted service connection for tinea cruris and pedis (claimed as skin disorder) and for asthma (claimed as residuals of carbon monoxide poisoning). Accordingly, the issues of service connection for a skin disorder and residuals of carbon monoxide poisoning are no longer on appeal. The July 2012 and April 2013 Board decisions referred to the Agency of Original Jurisdiction (AOJ) for appropriate action the matter of service connection for a psychiatric disability. As it appears there has been no action on those referrals, the matter is again referred to the AOJ for appropriate action. The appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND In the July 2012 remand the Board found that VA's duty to assist required development to obtain additional private medical records, as well as a VA examination for the disability at issue. The claim was remanded for the RO to secure private medical records and arrange for an examination of the Veteran. Documents in Virtual VA (VA's electronic data storage system) show that in response to a September 2012 VA request for records from Iron Mountain, that company indicated in October 2012 that to process the request, it would need to know the name of the specific doctor, practice, or hospital which treated the Veteran. The Veteran had advised in January 2010 that he was treated by the plant nurse at Delphi Packard Electric from April 1977 to October 2007; this appears to be the information Iron Mountain needed to process the VA request for records. However, the RO did not immediately follow-up on Iron Mountain's October 2012 response by providing such information, and thus did not satisfy the duties mandated by 38 C.F.R. § 3.159 (2013). Accordingly, the Board remanded the claim in April 2013 for further action to obtain those records. An August 2013 report of a conversation between an RO employee and an Iron Mountain employee indicates that Iron Mountain does not have a contract with Delphi Packard. The employee from Iron Mountain indicated that VA would need to refer back to Delphi Packard for Delphi Packard to request the records from storage. (Apparently, the Veteran's records were returned to Delphi Packard at some point after they were forwarded to it.) A search on the internet reveals that although Delphi Packard may have closed the plant at which the Veteran worked in Clinton, Mississippi (see Delphi Packard's note to this effect in the January 2010 VA Form 21-4142), Delphi Packard Electric is still in business. An employee of Delphi Packard Electric who was reached at the phone number provided on the web page directed an attorney for the Board to the Delphi Packard Electric's human resources department, at (330) 373 3414. Accordingly, further action is needed to obtain the records sought. Furthermore, on June 2013 VA examination for sinusitis the examiner reported that the Veteran's record was reviewed and observed that the Veteran does not now have, and has never received a diagnosis of, a sinus condition. As the record shows numerous instances of treatment for sinus problems over a period of years (with chronic sinusitis reported in an April 2010 VA medical record in Virtual VA) which apparently escaped the attention of the examiner (as they were not mentioned), the review of the record by the examiner appears to have been less than exhaustive. The examiner noted that a radiologist had reported frontal and left maxillary sinus changes based on X-rays at the time of the examination, strongly disagreed, and obtained a CT scan for clarification. The CT scan showed minimal mucosal thickening in the floor of the left maxillary sinus, secondary to a molar tooth root penetration into the sinus. Inasmuch as the June 2013 VA examination report and opinion appear to be based on a less than complete record, and observations therein conflict with what is actually noted in the record, another VA examination to secure a nexus opinion that reflects familiarity with the accurate and complete record is necessary. Accordingly, the case is REMANDED for the following: 1. With the cooperation of the Veteran (providing updated releases/more information, if needed), the RO should secure for the record the complete records of treatment he received from the plant nurse at the Delphi Packard Electric plant in Clinton, Mississippi from April 1976 to October 2007. The Board notes that Delphi Packard Electric is now located in Warren, Ohio, and that its human resources department can be reached at (330) 373-3414. 2. After the records sought are received, the RO should arrange for the Veteran to be examined by an otolaryngologist other than the one who examined him in June 2013, to ascertain the nature and likely etiology of his claimed sinus disorder. The Veteran's entire VA record must be reviewed by the examiner in conjunction with the examination. Any tests and/or studies deemed necessary must be completed. Based on a review of the record, and examination of the Veteran, the examiner should offer an opinion that responds to the following: Please identify (by medical diagnosis)any/each sinus disability found to have been present at any time from May 2010 to the present. As to each sinus disability entity diagnosed, please identify the likely etiology, specifically indicating whether or not such disability is at least as likely as not (a 50 % or better probability) related to the Veteran's upper respiratory complaints and symptoms noted in service or to his exposure to carbon dioxide therein. The examiner must explain the rationale for all opinions, citing to supporting factual data and medical literature as deemed appropriate. If it is found that the Veteran does not now have, and during the pendency of this claim has not had, a chronic sinus disorder, the explanation must reconcile such finding with the postservice treatment records, including in April 2010 (found in Virtual VA, )that show reports of sinus problems over a period of years. 3. The RO should then review the record and readjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran the opportunity to respond. The case should then be returned to the Board. The appellant 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 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). _________________________________________________ George R. Senyk 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).