Citation Nr: 21026626
Decision Date: 05/03/21	Archive Date: 05/03/21

DOCKET NO. 18-34 768
DATE: May 3, 2021

REMANDED

The claim for an effective date prior to August 22, 2016, for the assignment of a 50 percent evaluation for service-connected chronic sinusitis with polyposis (sinusitis) is remanded.

REASONS FOR REMAND

The Veteran served in the U.S. Marine Corps on active service from September 1977 to October 1981.  

This appeal arises before the Board of Veterans Appeals (Board) from a March 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana.

The Board denied an effective date earlier than August 22, 2016, for the assignment of a 50 percent evaluation for sinusitis in an August 2019 decision.  The Veteran appealed this issue to the U.S. Court of Veterans Appeals (Court).  

In a September 2020 memorandum decision, the Court set aside the August 1, 2019 Board decision and remanded it for further proceedings.  The basis for this action was that on September 13, 2013, the Veteran underwent a computed tomography scan (CT scan) of his sinuses in September 13, 2013, suggesting a progression of the disease.  The Court indicated that pursuant to Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020) the medical record was constructively before the VA benefits adjudicator within one year of the issuance of the April 2013 rating decision, which had previously denied an evaluation greater than 30 percent for the service-connected sinusitis.  

Hence, a remand is necessary to locate these records and to determine whether such records constituted new and material evidence in readjudicating the Veteran's claim.  See 38 C.F.R. § 3.156(b); see also Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014); Lang v. Wilkie, 971 F.3d at 1354-55 (Fed. Cir. 2020).  

Review of the VA treatment records do show a reference to the CT scan of the Veteran's sinuses, on September 13, 2013, and December 10, 2012.  However, the clinical report detailing the findings are not of record.  A remand is required to obtain the findings from the CT scans and to obtain VA treatment records from August 2011 through August 2016.  

The matters are REMANDED for the following action:

1. Associate with the record VA treatment records from August 2011 through August 2016, to include the reports of any and all clinical tests conducted during that time.  In particular, obtain the clinical results of CT scans of the Veteran's sinuses conducted on or about September 13, 2013, and December 10, 2012.  

2. After obtaining these records, readjudicate the claim for an effective date earlier than August 22, 2016, for the assignment of a 50 percent evaluation for sinusitis.  The AOJ is specifically asked to determine whether the September 2013 CT scan, and/or any other clinical findings conducted by VA within the one-year period after the April 2013 rating decision was issued, constitutes new and material evidence under 38 C.F.R. § 3.156(b) which prevented the April 2013 rating decision from becoming final.

3. If any matter remains denied, issue an appropriate supplemental statement of the case, and return the appeal to the Board for further consideration, if otherwise in order.

 

 

Ashley Castillo

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Bakke, Lila J.

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.