Citation Nr: 21029342
Decision Date: 05/13/21	Archive Date: 05/13/21

DOCKET NO. 19-08 743A
DATE: May 13, 2021

"REMANDED

Entitlement to service connection for residuals of broken nose is remanded.

Entitlement to service connection for headaches is remanded.

Entitlement to service connection for a deviated septum is remanded.

Entitlement to service connection for a sinus disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty from June 1956 to May 1958 and from August 1958 to August 1964.  

These matters come before the Board of Veterans' Appeal (Board) on appeal from a May 2016 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA).  In February 2021, the Veteran and his spouse presented sworn testimony before the undersigned Veterans Law Judge at a Board virtual hearing. 

Although the Board regrets the additional delay, the below referenced claims must be remanded to ensure that due process is followed.

1. Entitlement to service connection for residuals of broken nose is remanded.

2. Entitlement to service connection for headaches is remanded.

3. Entitlement to service connection for a deviated septum is remanded.

4. Entitlement to service connection for a sinus disability is remanded.

These matters were last adjudicated by the RO in a June 2019 Supplemental Statement of the Case.  Since that time additional relevant VA-generated evidence has been received.  In a March 2021 letter, the Board sought waiver of initial RO consideration of this evidence.  The Veteran was notified that he had 45 days to respond to the letter, and if no response was received, the Board would assume that he did not wish to have the Board decide his appeal at this time, and the claims would be remanded for the agency of original jurisdiction (AOJ) to consider the newly received evidence in the first instance.  The Veteran has not responded in the time allotted.   

The Board may not finally adjudicate the claims without the RO initially considering the newly obtained evidence, as to do so could potentially strip the Veteran of his statutorily provided "one review on appeal to the Secretary" in violation of his due process rights.  See 38 U.S.C. § 7104(a)(2018); see also Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339, 1347 (Fed. Cir. 2003) ("Together sections 511(a) and 7104(a) dictate that the Board acts on behalf of the Secretary in making the ultimate decision on claims and provides 'one review on appeal to the Secretary' of a question 'subject to decision by the Secretary' under section 511(a)."). 

Consequently, the matters must be remanded for the RO to readjudicate the claims with consideration of the entire electronic claims file, to include the evidence received since the June 2019 Supplemental Statement of the Case.  38 C.F.R. §§ 19.31, 19.37(b).  

The matters are REMANDED for the following action:

Readjudicate the Veteran's claims seeking entitlement to service connection for (1) residuals of broken nose; (2) headaches; (3) deviated septum; and (4) sinus disability.  If any benefit sought remains denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative

 

 

Cynthia M. Bruce

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Galante

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.