Citation Nr: 21076540
Decision Date: 12/27/21	Archive Date: 12/27/21

DOCKET NO. 18-00 944
DATE: December 27, 2021

REMANDED

Entitlement to service connection for a sinus disability, claimed as chronic sinusitis is remanded.

REASONS FOR REMAND

The Veteran was a member of the Oklahoma Army National Guard from February 1980 to April 1990 with a period of initial active duty for training from June 1981 to August 1981, active duty from March 1986 to August 1987; he was on active duty in the United States Navy Reserve from September 2001 to July 2002.

This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) February 2017 rating decision of the Agency of Original Jurisdiction (AOJ).

In December 2020 the Veteran appeared before the undersigned Veterans Law Judge at a virtual Board hearing. A transcript of that hearing has been reviewed by the Board, and has been associated with the claims file.

The Board notes that, in May 2018, the Veteran submitted documentation to participate in the Rapid Appeals Modernization Program (RAMP). However, later submissions to VA, as well as confirmation with the undersigned Veterans Law Judge, the Veteran has elected to remain in the current Legacy review appeal process, a decision which was confirmed in a June 2021 letter to the Veteran from the Board. The Veteran's claims have been adjudicated in a manner consistent with the Legacy processes.

In September 2021 the Board remanded the case to the AOJ for additional development. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record in the time since the September 2021 remand, for the reasons discussed below, the Board finds that the AOJ failed to substantially comply with the Board's remand directives.

1. Entitlement to service connection for a sinus disability, claimed as chronic sinusitis is remanded.

The Veteran contends that he has a sinus disability that is caused by, or otherwise due to, either his active-duty military service or secondary to one of his service-connected disabilities.

As noted above, in September 2021 the Board remanded the Veteran's claim for service connection for a sinus disability. Specifically, the Board directed the AOJ to "contact the appropriate agencies to obtain the Veteran's 2002 separation physical examination," and should the documentation not be able to be obtained, then "an official finding must be made."

In the time since the September 2021 Board remand, the record shows that the AOJ failed to make any attempts to obtain the requested information.

While the Board regrets the additional delay, a further remand is necessary to ensure substantial compliance with the Board's remand directives.

The matters are REMANDED for the following action:

1. The AOJ shall contact the appropriate agencies to obtain the Veteran's 2002 separation physical examination and medical history reports. This includes reaching out to, but not limited to the Veteran's National Guard and Navy Reserve units.

If the records cannot be obtained, an official finding must be made and associated with the claims file. All documentation sent and received by the AOJ must be associated with the claims file. 

 

 

S. L. Kennedy

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Neville, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.