BVA9506090 DOCKET NO. 93-11 536 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement of an increased evaluation for service-connected bilateral maxillary sinusitis with headaches, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Carolyn Wiggins, Associate Counsel INTRODUCTION The veteran served on active duty from April 1965 through December 1987. This appeal arises from an April 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Francisco, California which granted service connection for sinusitis and assigned a 10 percent evaluation. That evaluation was later confirmed in rating decisions in July 1990, July 1991 and December 1991. The VARO in Phoenix. Arizona confirmed that decision in April 1993 and this appeal has been certified from that office. In June 1990 the veteran filed a notice of disagreement with the 10 percent rating for sinusitis and was furnished a statement of the case on the issue in July 1990. In September 1990 the veteran filed a VA Form 1-9 Appeal to the Board of Veteran's Appeals which referred to other issues. It appears that the RO interpreted that as a notice of disagreement as to the additional issues. In the third from the last paragraph of the January 1991 supplemental statement of the case, the RO informed the veteran that in order to perfect his appeal as to the additional issues he must complete and return a Form 1-9. The veteran did not file such an appeal and therefore did not perfect an appeal as to the additional issues. Therefore the sole issue on appeal to the Board is the issue of an increased rating for sinusitis. REMAND In reviewing the file as to the certified issue it appears that the records on file are incomplete. In the VA examination in February 1991, the veteran listed treatment for headaches since November 1988. . He has a history of sinus as well as other headaches. Copies of the treatment records have not been obtained and included in the claims folder. The veteran's service connected sinusitis is rated under 38 C.F.R. Part 4, Diagnostic Codes 6510-6514 (1994), based on the frequency and severity of attacks, whether there is purulence or crusting and the frequency and severity of sinus headaches. In the most recent VA examination in March 1993 atypical headaches and face pain of uncertain cause, temporomandibular joint function syndrome, probable allergic rhinitis and a small cyst or polyp in the left frontal sinus were reported. It is also pertinent to note that the service medical records in December 1979 once made reference to migraine or tension headaches while references to sinus congestion headaches were made in February 1974 and May 1984 and on VA examination in February 1990. Dull right-sided headaches were noted in January 1989. The Board is unable to determine whether the current headaches are attributable to sinusitis. The VA has a duty to assist the veteran in the development of all facts pertinent to his claim. 38 U.S.C.A. § 5107 (a) (West 1991); 38 C.F.R. § 3.103(a) (1994). The United States Court of Veterans Appeals has held that the duty to assist the veteran in obtaining available facts and evidence to support his claim includes obtaining pertinent evidence that applies to all relevant facts. Littke v. Derwinski, 1 Vet.App. 90 (1990). This duty also includes providing additional examinations by a specialists when recommended or indicated. Hyder v. Derwinski, 1 Vet.App. 221 (1991). Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should obtain the names and addresses of all medical care providers who treated the veteran for sinusitis since March 1993. The RO should attempt to obtain copies of the records of treatment for headaches from Richard A. Lusby,M.D., 869 W. Lacey Boulevard, Hanford, California 93230 and Michael N. Baker,M.D., 440 Greenfield Avenue, Hanford, California 93230. After securing the necessary releases, the RO should obtain these records. 2. The veteran should be afforded a VA Ear, Nose and Throat examination to determine the current nature and severity and manifestations of his service connected sinusitis. Any indicated special studies should be carried out. The claims folder should be made available to the examiner for review before the examination. The examiner should note any crusting, purulence or scabbing and the frequency and severity of incapacitating recurrences should be noted. The examiner after reviewing the record and examining the veteran should comment as to any nasal obstruction and give an opinion as to the etiology of the veteran's current headaches. If the examiner finds that the headaches are not caused by sinusitis, comment should be made as to their origin. Following completion of the above actions, the case should be reviewed by the RO. If the benefits sought remain denied, the veteran and his representative should be provided with an appropriate supplemental statement of the case and given the opportunity to respond. The case should then be returned to the Board for further appellate review. SAMUEL W. WARNER 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).