Citation Nr: 1342001 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 12-01 815 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a sinus condition. ATTORNEY FOR THE BOARD Nadia Kamal, Associate Counsel INTRODUCTION The Veteran had active service from August 1959 to June 1961. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Board adds that in the July 2010, the RO denied the Veteran's claim of entitlement to an increased disability rating for a bilateral hearing loss disability. The Veteran did not file a timely notice of disagreement as to that decision and the decision is therefore final. However, in his January 2012 VA Form 9, he indicated that he desired to pursue a claim of entitlement to an increased disability rating for the bilateral hearing loss disability. The Board therefore refers this matter to the agency of original jurisdiction (AOJ) for appropriate action. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. 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 For reasons expressed immediately below, the Board finds that additional development is required before the Veteran's claim is decided. The Veteran asserts that he had symptoms of sinus problems in service, and that he currently has a sinus condition that is related to his occupational duties during active service. At this juncture, the Board notes that this is a rebuilt claims folder. As such, some information that was initially associated with the claims folder is no longer available. Unfortunately, the Veteran's service treatment records (STRs) are incomplete. While some of the Veteran's STRs have been associated with the claims file, the potential repositories for the Veteran's STRs no longer have any further documentation of the STRs. As such, in cases where a veteran's service records are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). The heightened duty to assist in developing pertinent facts where service records are presumed destroyed includes the obligation to search for alternative records. Moore v. Derwinski, 1 Vet. App. 401 (1991). The Board also notes that the Veteran was not provided with a VA examination that addressed his current claim for VA compensation for a sinus condition. Given VA's elevated duty to assist the claimant in this particular case, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of any currently present sinus condition. Barr v. Nicholson, 21 Vet. App. 303 (2007) (once VA undertakes to provide an examination it is obligated to insure that the examination is adequate). The Court has held that in disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, the current medical evidence of record documents a diagnosis of pansinusitis. The Veteran's post service records reveal that he frequently complained of sinus issues beginning in 1998. In March 2004 the Veteran was afforded a Computed Tomography (CT) scan at a private facility. This scan revealed an inflammation of the Veteran's sinuses, and it was at this time that he was diagnosed with pansinusitis. The Board observes that the Veteran's incomplete service treatment records are absent complaints of, or treatment for, any sinus condition while in-service. Specifically, the Veteran's examination upon his discharge from service in June 1961 reported his sinuses as normal, and there is no in-service treatment record documenting sinus injury or disease in-service. However, while the available STRs do not document a sinus condition, the Board is cognizant of the Veteran's contentions that he had sinus symptoms in service. And in his original January 2010 claim, the Veteran asserts that his sinus condition began while hospitalized at the Fort Dix, N.J. Medical Center in 1960, during active duty. Although the Veteran as a lay person has not been shown to be capable of making medical conclusions, he is competent to report that he endures sinus problems. Moreover, as the Veteran's STRs are incomplete, the Board must proceed with the understanding that the Veteran had some sinus symptoms in service. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006) (held that the Board may not find that a claimant's report of in-service symptoms lacked credibility solely because there was no objective medical evidence corroborating those symptoms at the time). On this evidence, the Board finds that there is evidence of a current disability, in-service symptomatology, and evidence that the two may be connected. Under the "low threshold" standard of McLendon, an examination to determine if there is a nexus between the Veteran's current sinus condition and his service is warranted. Accordingly, in view of the foregoing discussion, the case is REMANDED to the RO/AMC for the following action: Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding, pertinent medical records. Any additional treatment records identified by the Veteran should be obtained. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran is to be notified of any unsuccessful efforts, in order to allow them the opportunity to obtain and submit those records for VA review. 2. Then the Veteran should be afforded a VA examination by a physician with sufficient expertise to evaluate the nature and etiology of any currently present sinus condition. The claims files, to include any pertinent evidence in Virtual VA that is not contained in the claims file, must be made available to and reviewed by the examiner. Any indicated studies should be performed. The examiner should also presume the Veteran is a reliable historian with regard to his reports of sinus issues. Based upon the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current sinus condition is etiologically related to service. For the purposes of the opinion, the examiner should consider the Veteran's statements with regard to having sinus symptoms during and after active duty service. A rationale for all requested opinions shall be provided, with citation to medical treatise, studies, etc., if appropriate. If an opinion cannot be provided without resorting to mere speculation, please provide a complete explanation stating why this is so. In so doing, you must explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that you have exhausted the limits of current medical knowledge in providing answers to the questions. 3. The RO or the AMC should then undertake any other development it determines to be warranted and readjudicate the Veteran's claim on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be furnished to the Veteran, and he should be afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. 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). _________________________________________________ JONATHAN B. KRAMER 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).