Citation Nr: 1805596 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-43 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for chronic sinusitis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1958 to August 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In November 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the undersigned held the record open for 60 days so that the Veteran could procure and submit additional evidence in support of the claim; however, none has been received to date. The Board observes that, since the Agency of Original Jurisdiction (AOJ)'s most recent adjudication of the issue on appeal in the February 2015 supplemental statement of the case, additional evidence was associated with the record; however, with the exception of a copy of the November 2017 Board hearing transcript, such documents are irrelevant to the issue on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran contends that his current chronic sinusitis is related to his military service. Specifically, in January and August 2014 written correspondence, he alleges that his sinus issues began while in service during Operation Wintershield I in Grafenwoehr, Germany, when he participated in simulated combat conditions that resulted in his exposure to cold weather below zero degrees for thirty days or more. He further alleged that he stayed in such environment for an additional thirty days or more to reconstruct roads and fields. The Veteran reported that he complained about experiencing colds and sinus issues, but never went to a hospital. He also contends that the fumes and chemical compounds he inhaled regularly in the motor pool lead to him experiencing sinus issues. Additionally, during his November 2017 Board hearing, the Veteran testified that he never had sinus issues until he went into service and, in the winter of approximately 1960, he was taken to a makeshift hospital tent due to a severe head cold, given pills, and told that he would be fine. He also reported that, while aboard the USNS Patch, he was went to the aid station for his sinus issues, but was only given APC's ("soldier candy"). The Veteran contended that he experienced symptoms in his nose and in the back of his throat while in service. Here, the Veteran reported that while he was in training in Germany, he was treated informally with pills, usually Motrin, and it was possible that such treatment was not recorded. He further contends that he has continued to experience sinus issues since service. Therefore, he claims that service connection for chronic sinusitis is warranted. The Veteran's service treatment records (STRs) reflect that clinical evaluations conducted in connection with examinations in September 1958 and August 1961 revealed that his sinuses were normal; however, the August 1961 Report of Medical Examination indicated that the Veteran's mouth and throat were abnormal. Here, the examiner noted that the Veteran had a tonsillectomy and adenoidectomy during his childhood. Additionally, the Veteran denied sinusitis at such examinations. While he reported that he had experienced/was experiencing whooping cough on his August 1961 Report of Medical History, the examiner noted that the Veteran had whooping cough in his childhood and there were no complications. Despite the fact that the Veteran's STRs are negative for any treatment, complaints, or diagnoses referable to sinusitis, his DD Form 214 confirms that his military occupational specialty was Combat Construction Specialist. The Veteran's post-service VA treatment records reveal a diagnosis of mild sinusitis in September 1985. A September 1994 VA treatment record indicates the Veteran's complaint of pressure in his head and his belief that he had sinus issues. Here, the examiner noted that the Veteran had a history of sinusitis. VA treatment records dated from July 2005 to August 2015 report the Veteran's complaints of sinus infections, and treatment for and assessments of sinusitis/recurrent sinusitis/chronic sinusitis. Additionally, the Veteran's post-service private treatment record reveals a diagnosis of acute sinusitis, not otherwise specified, in September 2010. In the instant case, the Board finds that, in light of the Veteran's VA and private treatment records showing a diagnosis of chronic sinusitis; lay statements from the Veteran regarding his in-service cold weather environment and occupation-related duties; confirmation of the Veteran's military occupational specialty as Combat Construction Specialist; and the Veteran's report of a continuity of sinus symptomatology, a remand is necessary in order to afford the Veteran a VA examination so as to determine the nature and etiology of his chronic sinusitis. Furthermore, while on remand, the Veteran should be given an opportunity to identify any records relevant to his claim that have not been obtained. In this regard, the Board notes that he reported a single episode of treatment at the Buffalo VA in 1961 prior to receiving ongoing treatment through such facility beginning in 1982. Additionally, he indicated that he received private treatment from Dr. Serial and Dr. Bernstein. A review of the record reveals that VA treatment records beginning in 1982 and records from Dr. Bernstein are on file. Therefore, after receiving any necessary authorization from the Veteran, the AOJ should obtain all identified treatment records, to include those from the Buffalo VA in 1961 and Dr. Serial. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to include those from the Buffalo VA in 1961 and Dr. Serial, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal 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. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Afford the Veteran an appropriate VA examination to determine the nature and etiology of his chronic sinusitis. The record, to include a complete copy of this remand, must be made available to the examiner. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's chronic sinusitis is related to his active duty service, to include his service in a cold weather environment and/or as due to exposure to fumes and chemical compounds in the motor pool lead. The examiner should take into consideration all of the evidence of record, to include the STRs, post-service treatment records, and lay statements from the Veteran concerning his in-service cold weather environment and occupation-related duties, as well as his post-service symptomatology, accepted medical principles, and objective medical findings. All opinions expressed must be accompanied by supporting rationale. 3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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. §§ 5109B, 7112 (2012). _________________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).