Citation Nr: 1638440 Decision Date: 09/29/16 Archive Date: 10/13/16 DOCKET NO. 10-17 645 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a sinus disability. 2. Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Matta, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1981 to August 1985 and from May 1986 to October 1987. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO). In his April 2010 VA Form 9 substantive appeal, the Veteran requested a videoconference hearing; in October 2015 correspondence, he withdrew this request. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on his part is required. REMAND A review of the record found incomplete development of medical evidence and conflicts in the medical evidence in the record that must be resolved for proper appellate consideration of the issues on appeal. The Veteran claims that on numerous occasions in service he received a diagnosis of, and treatment for, rhinitis which developed into a chronic sinusitis he now seeks to have service-connected. He seeks service connection for a headache disorder on the basis that such disorder is related to the numerous notations of headaches in his service treatment records (STRs), and alternatively on the basis that they are secondary to a service-connected sinusitis. In light of the secondary service connection theory of entitlement that is raised, the Board finds the two claims inextricably intertwined, requiring simultaneous consideration. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) Service connection for sinusitis has been denied essentially based on the report of a September 20, 2006 VA examination, when the examiner indicated that he found no current evidence of sinusitis. The record includes reports of sinus X-rays on September 6, 2006 (when the interpretation was normal sinuses); on September 20, 2006 (when there was partial opacification of the frontal sinus, and the impression was suggestion of frontal sinusitis); and on November 14, 2007 (when the impression was normal sinus series). A VA progress note dated September 20, 2006 (notably, the date of the aforementioned VA examination) indicates that the Veteran was seen for complaints of fever and yellow sinus drainage, and it was noted that Actifed and Sudafed cause his blood pressure to rise; findings included boggy and erythematous turbinates, with yellowish drainage, and that the left maxillary sinus was tender to palpation; and the provisional diagnosis was chronic rhinosinusitis. Treatment with medication was begun; X-rays were ordered. A progress note the following day indicates that an X-ray found frontal sinusitis, and the Veteran was so notified. The question presented is that if under these circumstances the Veteran did not have sinusitis, why was he treated for such infection by VA with a 14 day course of Augmentin. The Board further notes that the Veteran's STRs do not show a diagnosis of chronic rhinitis; they do show that on multiple occasions he was seen for complaints of headaches. In history on service separation examination he denied sinusitis, but endorsed having had frequent and severe headaches. On examination the sinuses and neurological evaluation were normal; the examiner noted the complaints of headaches in the STRs. It is alleged that the frontal headaches noted in service were manifestations of sinusitis. Notably, the Veteran's private provider has indicated that he has a chronic sinusitis treated over many years, and opined that it is related to his complaints in service. Under these circumstances, an examination to secure a clarifying medical advisory opinion in the matter is necessary. The current record does not include a medical opinion addressing the etiology of any current headache disorder. In light of the medical history noted, an examination to secure such opinion is necessary. Furthermore, in May 2010 a nurse in the office of the Veteran's private provider noted that he has a chronic sinusitis and has suffered from sinusitis for at least the 12 years he had been seen in that office, and related the sinusitis to the Veteran's numerous bouts of rhinitis in service. He indicated that headaches were a manifestation of the Veteran's sinusitis. In another (March 2014) statement in support of the Veteran's claims, his private provider noted his (by then) 16 year history of treatment in that office. Records of treatment the Veteran received from his private provider are not shown to have been sought, and are not associated with the record. The statements submitted in support of the Veteran's claim suggest such records contain information that is clearly pertinent to the matter at hand; accordingly, those records must be sought. Also, an April 2006 U.S. Department of Labor Certification of Health Care Provider notes: "Pt has recurring headaches, blurred vision, eyelid swelling, drainage, dizziness, nausea and vomiting. These symptoms often require the patient to be seen in our office and treated with medication.... Onset in 1994 - chronic condition requiring multiple absences intermittently." The statement is signed, but the signature is not legible, and the identity of the author is not evident. Identification of the author and records from that provider (if other than the Veteran's private provider noted above) must be obtained. The most recent VA treatment records associated with the record are from September 2013. Any outstanding records of VA treatment the Veteran has received for headaches or sinusitis may contain pertinent information, and as VA treatment records are constructively of record they must be secured. The record reflects that the Veteran applied for Social Security Administration (SSA) disability benefits, and was awaiting a determination on his claim. SSA records are constructively of record, may contain pertinent information, and must be secured for the record See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Accordingly, the case is REMANDED for the following: 1. The AOJ should secure for the record from SSA copies of their determination on the Veteran's claim for SSA disability benefits (and all medical records considered in connection with such claim). 2. The AOJ should ask the Veteran to identify the providers of all evaluations or treatment he has received postservice for sinus disability and headaches, and to provide authorizations for VA to obtain outstanding records of any such private evaluations and treatment, to specifically include complete records of evaluations and treatment he received from the office of Dr. Dolores Cantrell. He should also be asked to specifically identify the author of the April 2006 U.S. Department of Labor Certification of Health Care Provider (and to submit authorization for VA to secure records from that provider, if it is someone other than Dr. Cantrell). The AOJ should secure for the record complete clinical records of all evaluations and treatment from all providers identified (i.e., any pertinent records not already associated with the record). If any private records identified are not received pursuant to the AOJ's request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private records are received. The AOJ should specifically secure for the record complete clinical records of all VA evaluations and treatment the Veteran has received for his sinus disability and headaches since September 2013. 3. The AOJ should thereafter arrange for an otolaryngology examination of the Veteran to determine the presence, nature, and likely etiology of his claimed sinus disability. The entire record must be reviewed in conjunction with the examination, and any tests or studies deemed necessary must be completed. Based on a review of the record and examination of the Veteran, the examiner should provide opinions that respond to the following: a. Does the Veteran have diagnosis of a chronic sinus disability entity (or has he had such diagnosis at any time during the pendency of his claim, i.e., since February 2006). If so, please identify the disability (disabilities) by diagnosis. If sinusitis is not diagnosed, please reconcile that conclusion with the VA progress notes showing a September 20, 2006 diagnosis of sinusitis; X-rays on that day interpreted as showing sinusitis; and the 14 day course of medical treatment then prescribed, as well as the Veteran's private provider's diagnosis of sinusitis and records showing treatment for sinusitis. b. Please identify the likely etiology of any chronic sinus disability diagnosed. Specifically, is it at least as likely as not (a 50 percent or better probability) that such disability is related to the Veteran's military service/complaints noted therein? Were findings, including headaches, noted therein early manifestations of sinusitis? The examiner must include rationale with all opinions. 4. The AOJ should also arrange for a neurological evaluation of the Veteran to determine the existence, nature, and likely etiology of his claimed headache disability. The entire record must be reviewed in conjunction with the examination. Based on a review of the record and examination of the Veteran, the examiner should provide opinions that respond to the following: a. Does the Veteran have a separate headache disorder as a separate entity (vs. headaches as a manifestation of an underlying disease or associated with an acute illness)? If so, please identify the headache disorder by diagnosis. b. Please identify the etiology of any headache disorder diagnosed. Specifically, is it at least as likely as not (a 50 percent or better probability) that such disability: (i) Is related to the Veteran's service/headaches noted therein? (ii) Was caused or aggravated (aggravation must be addressed) by any chronic sinus disability diagnosed? c. If the Veteran's headaches are determined to be unrelated to service, and to not have been caused or aggravated by any diagnosed sinus disability, please identify the etiology for the headaches considered more likely. The examiner must include rationale with all opinions. 5. The AOJ should then review the record and re-adjudicate the claims. If either remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2015). _________________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2015), 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).