Citation Nr: 1612872 Decision Date: 03/30/16 Archive Date: 04/07/16 DOCKET NO. 10-03 682 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for sinusitis status post septoplasty, to include residuals of corrective surgery. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.R. Bryant INTRODUCTION The Veteran had active service in the United States Air Force from September 1986 to September 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision in December 2008 issued by the Department of Veterans Affairs (VA) Regional Offices (RO) in Columbia, South Carolina. This appeal was processed using the Veterans Benefits Management System (VBMS). The Virtual VA electronic claims file contains documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issue on appeal. The issue of entitlement to service connection for sinusitis status post septoplasty, to include residuals of corrective surgery remains in remand status and is being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND As noted in the Board's prior remand, the Veteran attempted to withdraw her appeal (see March 2014 Report of Contact), but did not follow up in completing the steps to process the withdrawal. See August 2014 RO Letter to Veteran. The AOJ was asked to clarify whether the Veteran wanted to continue the appeal, and if so, to schedule an examination to determine the etiology of her sinusitis, status post septoplasty, and any residuals thereof. See March 2015 Board Remand. In April 2015, the AOJ sent the Veteran a letter to clarify whether she wished to withdraw her claim. No response was received. Moreover, the Veteran's representative submitted a brief listing that issue as before the Board. Therefore, without a written statement from the Veteran withdrawing her claim, the Board finds that it remains in appellate status. 38 C.F.R. §§ 20.202, 20.204 (2015). However because the AOJ failed to schedule the Veteran for a VA examination as directed, corrective action is now required on remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate medical examiner. The claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report. All indicated tests and studies, including sinus X-rays, should be performed, and the examiner should review the results of any testing prior to completing the report. The examiner must provide an opinion regarding whether it is at least as likely as not, i.e., at least a 50 percent probability or greater, that all diagnosed sinus disorders and/or residuals are related to service, to include whether each disorder had its onset during service or is otherwise related to the in-service symptoms and surgery. In providing an opinion, the examiner must address: 1) the Veteran's service treatment records including sinus symptoms and a 2002 surgery; 2) the Veteran's lay statements regarding sinus symptoms after the surgery to present day; and all other relevant evidence of record. 2. Notify the Veteran that it is her responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 3. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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) (2015).