Citation Nr: 0003329 Decision Date: 02/09/00 Archive Date: 02/15/00 DOCKET NO. 98-19 304A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for sinusitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Robert C. Scharnberger, Associate Counsel INTRODUCTION The appellant served on active duty from July 1964 to November 1968. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a December 1997 rating decision of the Atlanta, Georgia, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for hearing loss and sinus problem. The veteran appealed the decision to the Board and, before the case was sent to the Board, the RO granted service connection for hearing loss with a history of mastoiditis. Because the award of service connection for hearing loss constitutes a full allowance of the benefit sought on appeal, that issue is no longer before the Board on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (an appeal initiated by a notice of disagreement as to an RO's "rejection of the logically up-stream element of service-connectedness . . . could not concern the logically down-stream element of compensation level."). REMAND Concerning the appeal of the claim for service connection for sinusitis, the Board notes that of record are two documents, both dated and signed by the veteran on February 9, 1999, one of which is a VA Form 9 on which the veteran has indicated by checking a box that he wishes to appeal the claim for service connection for sinusitis to the Board and the other is an "Appeal Status Election Form" on which the veteran has indicated that he wishes to withdraw his appeal of the claim for service connection for sinusitis. The Board concludes that remand is required for clarification of this matter. If the veteran's intention was to withdraw his appeal of the claim for service connection for sinusitis, the Board no longer has jurisdiction of the claim and therefore no longer has the legal authority to instruct the RO to develop the evidence further regarding the matter. See BLACK'S LAW DICTIONARY 766 (5th ed. 1979) (Jurisdiction "exists when . . . [the] point to be decided is within [the] powers of [the] court"; it is "the authority by which courts and judicial officers take cognizance of and decide cases"; it is "[t]he legal right by which judges exercise their authority"); see also BARRON'S LEGAL GUIDES LAW DICTIONARY 254 (1984) (Jurisdiction is "the power to hear and determine a case."). Nevertheless, to avoid another remand and the delay and expense that such action inevitably entails, the Board has included below development actions that the RO should undertake if and only if the veteran decides to pursue the appeal. In this regard, the Board notes that there is evidence in this case of current diagnosis of chronic sinusitis and the veteran has provided a history of sinus problems in service and thereafter. In addition, the veteran stated in his January1997 notice of disagreement and subsequent statements that he was treated in service for "sinus/ear problems" at Imperial Beach NAS between 1966 and 1968 and that he was sent for an evaluation of his ears and hearing loss at Balboa Naval Hospital, although it is not clear whether he was hospitalized there or whether he was treated for sinusitis there. Service medical records received from the National Personnel Records Center (NPRC) did not include any outpatient medical records showing treatment for the sinus condition and did not include any clinical record cover sheets or summaries of inpatient treatment indicating a period of hospitalization at Balboa Naval Hospital and such summaries normally are included with requests for medical records. The requisition and consideration of medical records which are possibly relevant to an issue on appeal is necessary for the adjudication of the case. Decisions of the Board must be based on all of the evidence available. 38 U.S.C.A. § 7104(a) (West 1991 & Supp. 1999); Gilbert v. Derwinski, 1 Vet. App. 78 (1990). The duty to assist a claimant in filing an application for benefits under 38 U.S.C.A. § 5103(a) (West 1991) includes the duty to request information which may be pertinent to the claim. See Franzen v. Brown, 9 Vet. App. 235 (1996) (VA's obligation under section 5103(a) to assist a claimant in filing a claim pertains to relevant evidence which may exist or could be obtained). The duty to assist is particularly applicable to records which are known to be in the possession of the Federal Government, such as service department and VA medical records. See Counts v. Brown, 6 Vet. App. 473 (1994); cf. Hayre v. West, 188 F.3d 1327, 1332 (Fed. Cir. 1999) (holding that the RO had not fulfilled the duty to assist where only a single request was made for pertinent service medical records specifically requested by the claimant and not obtained by the RO). Accordingly, to ensure that VA has met its obligations under section 5103(a) of the statute, the case is REMANDED to the RO for the following development. 1. The RO should ask the veteran to clarify in writing whether he intends to pursue or to withdrawal his appeal of the claim for service connection for sinusitis given the conflicting statements, dated February 9, 1999, that are in the claims file concerning this matter. 2. If and only if the veteran notifies the RO of his intent to pursue the appeal of the claim for service connection for sinusitis, the RO should proceed with the following development: 3. The RO should request any and all medical records pertaining to the appellant from Imperial Beach NAS and from the National Personnel Records Center (NPRC) in St. Louis. The veteran has stated that he was treated at the Base Dispensary at Imperial Beach NAS and it is not clear whether the evaluation at Balboa Naval Hospital pertained to a sinus condition. The RO should ask the veteran whether he was an inpatient at Balboa Naval Hospital and whether he was treated for sinusitis there and, if so, the month and year of such treatment. If this information is provided with sufficient detail, the RO should consider a request for Clinical Records from NPRC consistent with the provisions of the ADJUDICATION PROCEDURE MANUAL, M21-1, (M21-1), Part III, section 4.17. The RO should proceed with all reasonable alternative-source searches which may be indicated by the veteran's statements that he was treated for a sinus condition in service. Efforts to obtain these records should be documented and any records received in response to this request should be associated with the claims folder. If the records are unavailable or presumed destroyed, that fact should be noted as well in the claims folder. 4. The appellant and his representative should be contacted and requested to submit any additional available evidence in support of his claim. 5. Thereafter, the RO must review the claims folder and ensure that all of the foregoing development efforts have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Remand instructions of the Board are neither optional nor discretionary. Full compliance with such instructions is mandated by law. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completion of the above, the RO must readjudicate the appellant's claim for service connection for sinusitis with consideration given to all evidence of record, including any additional medical evidence obtained by the RO on remand. The RO's readjudication of this claim should be in accord with its heightened responsibility to explain its reasons and bases and to consider the benefit of the doubt rule in the event that the appellant's service medical records are unavailable. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. No action is required by the appellant until further notice. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. KATHLEEN K. GALLAGHER Acting Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1999).