Citation Nr: 1337111 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 05-38 059 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to a compensable disability rating for sinusitis. REPRESENTATION Appellant represented by: Maxwell D. Kinman, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1966 to June 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which, inter alia, denied an increased disability rating for the Veteran's service connected sinus disability. The Veteran testified during a July 2007 hearing that was held at the Lincoln RO before the undersigned Veterans Law Judge. A transcript of this testimony is associated with the record. Following a series of remands and subsequent claims development, the Board denied the Veteran's claim for a compensable disability rating for sinusitis in a December 2011 decision. This decision was subsequently appealed by the Veteran to the United States Court of Appeals for Veterans Claims (Court). In a March 2013 single-judge Memorandum Decision, the Court vacated the Board's December 2011 decision and remanded the matter to the Board for further proceedings consistent with the Court's decision. This matter now returns to the Board. Although the Veteran had previously been represented by a Veterans Service Organization, VA has since received a July 2013 VA Form 21-22a appointing Mr. Maxwell D. Kinman as the Veteran's new representative. The Board recognizes this change in representation. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In the March 2013 decision, the Court determined that the Board failed to adequately address an apparent deficiency in an October 2009 VA examination of the Veteran's sinuses. In that regard, the Court noted that the examiner did not note or address in his opinion sinus symptoms that had been reported by the Veteran during treatment in 2007 and 2008. In the absence of such a discussion, the Court observed, the VA examiner's conclusion that the Veteran did not have a history of sinusitis was questionable. Citing Olson v. Principi, 3 Vet. App. 480, 482 (1992), the Court also notes that a new VA examination may also be warranted in the event that the October 2009 VA examination is too remote to adequately evaluate the current state of the Veteran's sinusitis. Indeed, reconsideration of the October 2009 VA examination at this time reveals that the VA examiner ultimately concluded that the Veteran did not have any history of sinusitis, and moreover, failed to note documented sinus complaints during VA treatment in 2007 and 2008. Under the circumstances, it is unclear as to whether the Veteran's complaints in 2007 and 2008 (a time frame which falls within the relevant appeal period) were considered by the VA examiner in assessing the severity of the Veteran's service-connected sinusitis disability. Additionally, in an October 2013 correspondence, the Veteran's representative asserts that a new VA examination is indeed warranted to determine the current severity of the Veteran's disability, thus suggesting worsening of the Veteran's sinusitis. In view of the foregoing, the Board is compelled to remand this matter so that the Veteran may be afforded a new VA examination to assess the current severity of the Veteran's sinusitis. 38 C.F.R. § 3.159(c)(4). Prior to arranging the above examination, in order to insure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran should also be asked to identify any private or VA treatment providers who have rendered treatment for his sinusitis since March 2012. VA must then also make efforts to obtain any treatment records that are identified by the Veteran. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding his claim of entitlement to a compensable disability rating for sinusitis. This letter must also inform the Veteran about the information and evidence that is necessary to substantiate his claim and provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. The letter must also notify the Veteran that VA is undertaking efforts to arrange VA examinations of his sinusitis. The Veteran should be advised that it remains his responsibility to report for the scheduled VA examinations and to cooperate with the development of his claim; failure to report without good cause may result in denial of his claim. The Veteran should also be provided a VA 21-4142 release and be asked to identify the name(s) and current address(es) for any private and/or VA treatment providers who have provided treatment for his sinusitis since March 2012. 2. Make efforts to obtain the records of any treatment identified by the Veteran. Any records obtained as a result of such efforts should be associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. After the development actions described above have been performed to the extent possible, the Veteran should be afforded a VA examination of his sinusitis to determine its current severity and associated symptoms. The Veteran's claims file should be made available to the examiner prior to the examination, and the examiner must review the entire claims file in conjunction with the examination. A full examination, to include an interview of the Veteran and any tests and studies deemed necessary by the examiner, should be conducted. Upon review of the record and examination of the Veteran, the examiner should set forth all manifestations and symptoms associated with the Veteran's sinusitis. The examiner should specifically comment upon whether the Veteran has had three or more incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment (lasting four to six weeks); or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A complete rationale must be given for all opinions and conclusions. Such rationale must include a discussion of all relevant evidence in the claims file and supporting medical principles, and, must be expressed in a typewritten report. 4. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. 5. After completion of the above development, the issue of the Veteran's entitlement to a compensable disability rating for sinusitis should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental SOC and be given an opportunity to respond. 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). _________________________________________________ DAVID L. WIGHT 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).