Citation Nr: 1509460 Decision Date: 03/04/15 Archive Date: 03/17/15 DOCKET NO. 09-45 747 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for low back disability. 2. Entitlement to service connection for neck disability. 3. Entitlement to service connection for right shoulder disability. 4. Entitlement to service connection for left shoulder disability. 5. Entitlement to a compensable rating for sinusitis. REPRESENTATION Appellant represented by: Carolyn J. Kerr, Agent ATTORNEY FOR THE BOARD Alicia R. Bordewyk INTRODUCTION The Veteran served on active duty from April 1973 to September 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which, in pertinent part, denied the above claimed benefits. The claim was remanded by the Board in June 2011 for additional development, including clarification as to whether the Veteran desired a hearing before a member of the Board. In February 2013, the Veteran stated that he no longer desired a hearing. Thus, no outstanding hearing request remains. In April 2013, the Board denied entitlement to a compensable rating for sinusitis and remanded the remaining service connection issues for additional development. The Veteran then filed an appeal to the United States Court of Appeals for Veterans Claims (Court). In April 2014, the Veteran's representative at the time and VA General Counsel filed a joint motion for remand. The Court granted the joint motion in April 2014. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND At the outset, the Board notes that it previously remanded the service connection claims on appeal, in part, so that the Agency of Original Jurisdiction (AOJ) could consider, in the first instance, additional evidence submitted by the Veteran in January 2010. Such evidence consisted of additional lay statements by the Veteran regarding his in-service neck, back, and shoulder complaints; it also included photographs of the aircraft he worked with in service, including an image of the back bay door that injured him in July 1975. As this evidence was received prior to the AOJ transferring the Veteran's appeal to the Board, remand was required. See 38 C.F.R. § 19.37 (2014). Review of the claims file reflects that the AMC readjudicated the service connection claims in September 2012 and July 2013. Pertinent to the reasons for this remand, the supplemental statements of the case (SSOCs) do not reflect consideration of the aforementioned evidence. Under these circumstances, the Board has no alternative but to once again remand this appeal for the originating agency to adjudicate the Veteran's service connection claims in light of this additional evidence, in the first instance, and for issuance of a rating decision and/or an SSOC reflecting such consideration. See 38 C.F.R. §§ 19.31, 19.37 (2014). See also Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). Regarding the increased rating for sinusitis, the record reflects that the last VA examination of record was conducted in October 2011. The duty to assist includes, when appropriate, the duty to provide a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of his disability, reexamination is required. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2014). In addition, the Board notes the arguments asserted by the Veteran's representative in an October 2014 brief that rhinitis and sinusitis symptoms overlap, and, therefore, he may have or may be, in fact, receiving treatment for sinusitis that is documented as treatment for rhinitis. The Board finds that a new VA examination is warranted to assess the current severity of sinusitis. The examiner should specifically address the contentions that the Veteran's rhinitis treatment has been treatment for sinusitis. All outstanding records of ongoing VA treatment should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records, including those created since July 2013, and associate them with the paper or virtual claims file. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained, it is reasonably certain that they do not exist, or that further efforts would be futile. 2. Once the above development has been completed, provide the Veteran with a VA sinus examination to determine the current severity of his service-connected sinusitis. All relevant records, including the virtual claims file and a copy of this remand, must be reviewed by the examiner; such review should be noted in the examination report or in an addendum. Any indicated tests should be performed. The examiner should specifically note the number (if any) of incapacitating episodes (i.e. episodes requiring bed rest and treatment by a physician) of sinusitis requiring prolonged antibiotic treatment (i.e. lasting 4 to 6 weeks) in the past year, along with the number (if any) of non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the past year. The examiner must also specifically comment on the difference between rhinitis and sinusitis and the Veteran's contentions that his treatment for rhinitis has actually been treatment for sinusitis. All opinions must be provided with a thorough rationale. 3. The agency of original jurisdiction (AOJ) should review the examination report to ensure that it contains the information, opinions, and rationales requested in this remand. 4. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. The AOJ should ensure that any adjudication includes review and consideration of the Veteran's statement and photographs submitted in January 2010. Once the Veteran and his representative are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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 2014). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).