Citation Nr: 1753346	
Decision Date: 11/21/17    Archive Date: 12/01/17

DOCKET NO.  14-07 351	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to a disability rating in excess of 10 percent for chronic sinusitis. 


REPRESENTATION

Veteran represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

R. Scarduzio, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1966 to August 1970. 

This matter comes before the Board of Veterans' Appeals (Board) from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in November 2016.  A transcript of the hearing is of record. 

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

While the Board regrets further delay, remand is necessary to afford the Veteran a new VA examination for his service-connected chronic sinusitis.

Review of the claims file shows that the Veteran's last VA examination for his disability was in September 2012, over five years ago.  While the passage of time alone is generally insufficient to render an otherwise appropriate VA examination inadequate for adjudicatory purposes, the United States Court of Appeals for Veterans Claims (Court) has held that a veteran is entitled to a new VA examination where there is evidence that the disability has worsened since the last VA examination.  See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994).  The Court has also held that VA's statutory duty to assist a veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one.  See Green v. Derwinski, 1 Vet. App. 121, 124 (1991).

At his hearing before the undersigned VLJ in November 2016, the Veteran reported daily complications of his chronic sinusitis disability, including violent sneezing, throat clearing, pain and pressure, nasal drainage, difficulty breathing through the nose, and sleep deprivation.  He also reported a yearly respiratory infection requiring the use of antibiotics.  In an October 2016 statement from a private dentist, the Veteran was noted as having periodic pain in his teeth and upper jaw.  The opinion was that the Veteran's complaints were not dental related, but instead may be related to his sinus issues. 

Because the symptoms of the Veteran's condition may be worse since the last VA examination, the Board finds that a new sinusitis examination would assist in fully and fairly evaluating the Veteran's claim for an increased rating.  

In addition, the Board notes that the Veteran has been receiving ongoing private and VA treatment.  However, except for an October 2016 list of active outpatient medications, the record contains VA treatment records only through June 2013.  Relevant ongoing medical records must be requested.  38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following actions:

1.  Ask the Veteran to identify any remaining outstanding treatment records relevant to his claim.  All identified VA records should be added to the claims file.  All other properly identified records should also be obtained if the necessary authorization to obtain the records is provided by the Veteran.  If any records are not available, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records.

2.  After the above development is completed to the extent necessary, schedule the Veteran for a VA examination to determine the current nature and severity of his sinusitis. The examiner should review the claims file and should perform all appropriate tests and diagnostics.  All pertinent symptomatology and findings must be reported in detail.  

3.  After completing the above actions, and any other development deemed necessary, the AOJ should readjudicate the claim on appeal.  If any benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review.

The Veteran 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



_________________________________________________
Nathan Kroes
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), 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) (2017).