BVA9505281 DOCKET NO. 90-19 489 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased evaluation for residuals of an orbital fracture, left, with paresis of left superior oblique and left medial rectus with diplopia, currently evaluated as 10 percent disabling. 2. Entitlement to an increased evaluation for enophthalmos with slight ptosis, with a bone defect of the superior orbital rim with irregular scar, left eye, currently evaluated as 10 percent disabling. 3. Entitlement to an increased evaluation for headaches of unknown etiology, currently evaluated as 10 percent disabling. 4. Entitlement to a temporary total evaluation based on hospitalization from January 10 to January 30, 1989. 5. Entitlement to a temporary total evaluation based on convalescence related to a period of hospitalization from January 10 to January 30, 1989. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from August 1961 to November 1981. This appeal arose from an April 1989 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The RO denied entitlement to increased evaluations for the disabilities at issue and temporary total evaluations based on hospitalization and/or convalescence related to a period of admission in January 1989. The Board of Veterans' Appeals (Board) REMANDED this case to the RO for further development in December 1990. The RO affirmed the determinations previously entered when it issued a rating decision in August 1991. The Board REMANDED the case to the RO for further development in December 1992. In a rating decision issued in July 1993, the RO affirmed the determinations previously entered and denied entitlement to service connection for chronic sinusitis to include resection of a mucocele. The case has been returned to the Board for further appellate review. REMAND The Board's review of the claims file discloses that the directives contained in the previous REMAND of December 1992 were not complied with. In this regard the Board observes that the RO was directed to contact the veteran and request that he identify all sources of treatment for the service-connected disabilities at issue, and particularly for nasal and sinus disabilities since service. The RO was to obtain complete medical treatment reports from the sources identified by the veteran and such records were to include those records associated with polypectomies in 1986 and 1987, and a septoplasty in 1986. The appellant was to be examined by an ear, nose, and throat specialist who was to provide an opinion as to the etiology of the veteran's sinus disorder to include the mucocele and the relationships, if any, to the injury of the left orbital area or residuals thereof. The veteran submitted statements of authorization to the RO in March 1993 to obtain VA treatment reports from the VA Medical Centers in Jacksonville and Gainesville, Florida for treatment from 1982 to 1992, and included authorization statements for service treatment reports already of record. The RO did not request the records of post service VA treatment at the above medical facilities. The veteran was afforded an ear, nose, and throat examination by the same physician on two occasions; namely, April and June 1993. No opinion as to the etiology for the veteran's sinus and nasal disabilities was offered, nor was the veteran's claims file made available for review by the examiner. See, e.g., 38 C.F.R. § 4.1 (1993) ("It is...essential both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history.") See also Green v. Derwinski, 1 Vet.App. 121, 124 (1991) ("[F]fulfillment of the statutory duty to assist...includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." (emphasis) added)). A March 1992 computerized axial tomographic scan of the sinus resulted in an inconclusive diagnostic impression. The claims file contains a notation from an RO Section Chief noting that the veteran had requested a hearing before the local RO hearing officer. Such hearing was scheduled for June 29, 1963. There is no indication on file as to whether such hearing was held. The Board has no alternative but to again REMAND the veteran's case to the RO to obtain the medical records of his reported treatment at VA medical facilities during a 10 year period for sinus and nasal disabilities and the disabilities at issue, to have the appellant again examined with an opinion rendered as to the etiology of his sinus disability to include the mucocele, and to obtain a transcript of any hearing held at the RO as requested by the veteran and reportedly scheduled in June 1993 or to afford the claimant the benefit of a requested hearing at the RO. Pursuant to VA's duty to assist the veteran in the development of facts pertinent to his claim under 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1993), the Board is deferring a final decision of all issues certified for appellate review pending a REMAND of the case to the RO for the following development: 1. The RO should associate with the claims file the transcript of a hearing scheduled at the RO in June 1993. If such hearing was not held, the veteran should be contacted and requested to indicate whether he still desires to present testimony at a hearing to be held before a hearing officer at the RO. 2. The RO should request and associate with the claims file photocopies of the complete records pertaining to the veteran's treatment at the VA Medical Centers from 1982 to 1992 in Jacksonville and Gainesville, Florida. 3. The veteran should be scheduled for an ear, nose, and throat examination by a physician who has not previously examined him to determine the etiology of his sinus disability including the mucocele. The examination should be conducted in accordance with the diagnostic procedures outlined in Chapter 3 of the VA Physician's Guide for Disability Evaluation Examinations. The examiner must be requested to provide an opinion as to whether it is at least as likely as not that the veteran's sinus disability including the mucocele are causally related to the service incurred injury of the left frontal sinus in January 1974. The claims file and all obtained evidence must be made available to and reviewed by the examiner prior to the examination. 4. Thereafter, the RO should review the examination report to ensure that it and the requested opinion are in complete compliance with the instructions contained in this REMAND. If the examination report is not in complete compliance, the RO should take appropriate corrective action. 5. After undertaking any development deemed appropriate in addition to that specified above, the RO should readjudicate the claims of entitlement to service connection for a sinus disorder to include the mucocele, and appropriately readjudicate the appellant's other claims. If the benefits requested on appeal are not granted to the veteran's satisfaction, or if he should file a notice of disagreement as to any other matter, the RO should issue a supplemental statement of the case for all issues in appellate status. A reasonable period of time for a response should be afforded. Thereafter the case should be returned to the Board for further appellate review, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. ALBERT D. TUTERA Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994).