Citation Nr: 1628357 Decision Date: 07/15/16 Archive Date: 07/28/16 DOCKET NO. 10-22 979 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for fungal sinusitis, with nasal polyps. 2. Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran had active military service from June 1962 to January 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In a March 2007 rating decision, the RO denied service connection for fungal sinusitis, with nasal polyps. In a March 2014 rating decision, the RO denied service connection for diabetes mellitus. As to the sinusitis claim, within one year of the March 2007 rating action, the Veteran filed a notice of disagreement in January 2008, which he withdrew in February 2009, but indicated that he wished for a reconsideration of his claim. Although the Veteran did not continue his appeal of the March 2007 rating decision, new, relevant medical evidence was added to the claims file within one (1) year of that rating decision. Pursuant to 38 C.F.R. § 3.156(b), new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim pending at the beginning of the appeal period. The Board finds that the March 2007 rating decision is the one on appeal. In March 2009, the RO denied reopening the claim for fungal sinusitis with nasal polyps. However, as noted above, as the March 2007 rating decision is the one on appeal, this matter will be treated as an original claim, rather than one for new and material evidence. The Veteran was scheduled for an October 2011 Travel Board Hearing, but withdrew his request for his hearing. The Veteran had a Decision Review Officer (DRO) hearing in August 2010. A transcript of that hearing is associated with the claims file. In January 2014, the Board remanded this matter for additional development. As to the diabetes mellitus claim, following the March 2014 rating decision, the Veteran filed a June 2014 notice of disagreement with that issue. However, a statement of the case has not yet been issued for that matter. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that he has developed fungal sinusitis, with nasal polyps, as well as, diabetes mellitus due to his service, to include possible Agent Orange exposure in Thailand and Vietnam. In regards to the Veteran's diabetes mellitus claim, the AOJ denied diabetes mellitus in a March 2014 rating decision. In June 2014, the Veteran provided a notice of disagreement with that denial. The AOJ has not issued a SOC that addresses this issue. Therefore, the Board must remand this issue for issuance of a proper SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). As to the sinusitis claim, the development directed by the Board in its last remand was not accomplished. The law mandates that where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the April 2014 VA examination obtained to address the sinus claim did not address all of the Veteran's contentions. An addendum opinion is necessary. Furthermore, pursuant to the Board remand, the AOJ requested that the Veteran provide information regarding his private medical providers. The Veteran provided authorizations for Dr. S. Gibbs, Dr. P. Brown, Dr. L. Dial, and Dr. L. Wilson (with Tri-State Allergy. Although the AOJ notified the Veteran, in the June 2014 supplemental statement of the case, that the request from Tri-State Allergy had been returned to VA by the postal service, the AOJ did not notify the Veteran that its request for records from Dr. P. Brown was also returned to sender. The AOJ should notify the Veteran of that fact. Furthermore, in response to the AOJ's original request for records from Dr. S. Gibbs, Dr. S. Gibbs' office provided an April 2014 response indicating that records should be requested from a different address, which was provided in that letter. However, the AOJ sent its second request for records to the same address as its original request, not the updated address. The AOJ should attempt to obtain records from Dr. Gibbs' office from the correct address. Additionally, the Board notes that a June 2005 private medical record from Ultimate Health Service documents that the Veteran has a history of silicosis working with "synthetic sand" and was followed by Dr. Kashyap. He also had occupational asthma and was followed at the Occupational Health Center at West Virginia University, with the notable trigger of polyurethane. The Veteran should be given an opportunity to identify any non-VA healthcare provider who treated him for fungal sinusitis, with nasal polyps, to specifically include Dr. Kashyap and the Occupational Health Center at West Virginia University. After securing any necessary authorization from him, obtain all identified treatment records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). Accordingly, the case is REMANDED for the following actions: 1. The AOJ should provide the Veteran with a SOC regarding the issue of entitlement to diabetes mellitus. Please advise the Veteran of the time period in which to perfect his appeal. If the Veteran perfects his appeal in a timely fashion, then return the case to the Board for its review, as appropriate. 2. (a) The Veteran should be given an opportunity to identify any non-VA healthcare provider who treated him for his sinusitis, to specifically include Dr. Kashyap and the Occupational Health Center at West Virginia University. After securing any necessary authorization from him, obtain all identified treatment records. All reasonable attempts should be made to obtain such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). (b) The AOJ should also notify the Veteran that its request for records from Dr. P. Brown could not be accomplished because it was returned to sender by the postal service. 3. The AOJ should request private medical records from Dr. S. Gibbs' office from the correct address, provided by Dr. Gibbs' office in April 2014. All reasonable attempts should be made to obtain such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. After the above development has been accomplished, request an addendum VA medical opinion from the February 2014 VA examiner. The claims file and a full copy of this REMAND must be made available to the examiner. The examiner shall note in the examination report that the claims folder and the REMAND have been reviewed. If the February 2014 VA examiner is not available, the claims file should be provided to an appropriate medical professional to render the requested opinions. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of claims files, which includes VA treatment records, the VA medical opinion provider should offer an opinion on the following: (i) Does the Veteran currently have a sinus disorder, to include the claimed fungal sinusitis, with nasal polyps? If so, please note the diagnosed disorder(s). (ii) Is it at least as likely as not that a sinus disorder was incurred in or was caused by the Veteran's active service? (a) The examiner should specifically consider the Veteran's reports of possible exposure to Agent Orange and other commercial herbicides associated with claimed service in the Philippines, Vietnam, and Thailand (August 2010 RO hearing). The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. The VA medical opinion provider should discuss the particulars of this Veteran's medical history and relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. 5. The AOJ should perform any additional development it deems necessary, to possibly include development to determine the claimed Agent Orange from the Veteran's Thailand service, as well as, claimed Vietnam service. 6. When the development requested has been completed, the case should again be reviewed by the AOJ on the basis of the additional evidence. If the benefit sought is not granted, the AOJ should furnish the Veteran a supplemental statement of the case and a reasonable opportunity to respond before returning the record to the Board for further review. 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 2014). _________________________________________________ WAYNE M. BRAEUER 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) (2015).