Citation Nr: 18155024 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 08-17 680 DATE: December 4, 2018 REMANDED Entitlement to service connection obstructive sleep apnea is remanded. Entitlement to increased rating sinusitis with headaches, rated as 10 percent disabling prior to May 13, 2008 and a 30 percent thereafter, is remanded. REASONS FOR REMAND The Veteran had active service from September 1992 to June 1996. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) Roanoke, Virginia. In March 2017, the Board denied the claim for an increased rating for sinusitis with headaches. The Veteran subsequently appealed to the United States Court of Veterans Claims (Court). An April 2018 Memorandum Decision vacated the Board’s March 2017 decision and remanded the matter to the Board for further proceedings consistent with the decision. Entitlement to service connection obstructive sleep apnea is remanded. The Veteran contends that his obstructive sleep apnea is related to his active duty service. The Board notes that a rating decision issued in July 2017 rating decision denied service connection obstructive sleep apnea. Thereafter, in September 2017, the Veteran entered a notice of disagreement (NOD) as to the denial of such issue. According to VA's Veterans Appeals Control and Locator System, the RO has acknowledged the Veteran's September 2017 NOD with respect to the issue of entitlement to service connection obstructive sleep apnea. Although the Veteran and his attorney have requested that a statement of the case be issued in response to this notice of disagreement, one has not yet been issued. A status request has been sent by the representative in March 2018 and September 2018. When there has been an initial agency of original adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case. See 38 C.F.R. § 19.26 (2016). Thus, remand for issuance of a statement of the case on this issue is necessary. Manlincon v. West, 12 Vet. App. 238 (1999). However, this issue will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Entitlement to an increased rating for sinusitis with headaches, rated as 10 percent disabling prior to May 13, 2008 and a 30 percent disabling thereafter. The Court found that that the Board failed to ensure compliance with its previous remand directives in the April 2018 Memorandum Decision. Specifically, the Court found that the April 2014 VA examiner failed to address the very reason for obtaining the examination in the first place: namely, to address whether the Veteran had any of the listed symptoms at any time since one year prior to filing his claim for increase in May 2008, i.e., since May 2007. The Court noted that the April 2014 VA examination report noted the Veteran’s sinusitis symptoms in the past month rather than addressing such symptoms at any time since May 2007. On remand, an opinion addressing the nature and severity of the Veteran’s sinusitis with headaches since May 2007 should be obtained. The matters are REMANDED for the following action: 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 updated VA treatment records dated from July 2017 to the present, 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 examination to determine the extent and severity of the service-connected sinusitis with headaches. All indicated tests and studies should be conducted and all findings described in detail. The claims file must be made available to the examiner for review and the examination reports should reflect that such review is accomplished. The examiner should address whether the Veteran has had any of the following symptoms at any time since one year prior to filing his claim for increase in May 2008, i.e. since May 2007. Does the Veteran have chronic osteomyelitis following radical surgery? Does the Veteran have near constant sinusitis characterized by headaches? Does the Veteran have pain and tenderness of affected sinus? Does the Veteran have purulent discharge, or crusting after repeated surgeries? KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD O. Owolabi, Law Clerk