Citation Nr: 0814692 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 04-24 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a compensable rating for service-connected sinusitis. 2. Entitlement to service connection for Epstein Barr virus. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Associate Counsel INTRODUCTION The veteran had active service from February 1993 to September 2002 and reportedly from March 1985 to August 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection for chronic sinusitis assigning a 0 percent rating. This matter also arises from a July 2004 RO rating determination which denied service connection for Epstein Barr virus. These issues were previously before the Board in December 2006, when they were remanded for further development of the record. The veteran testified at a Board hearing in June 2006. A transcript of that hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran has submitted additional medical evidence in support of her claims on appeal. In February 2008, a letter was sent to the veteran explaining that such evidence would need to be returned to the RO for preliminary review unless she expressly waived her right to such preliminary RO review within 45 days. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed.Cir. 2003). The veteran has not replied to the February 2008 letter and has not otherwise waived preliminary RO review of the new evidence. Additionally, the Board also notes that during the pendency of this appeal, on January 30, 2008, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the case of Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008), which outlined the notice requirements for an increased- compensation claim under 38 U.S.C.A. § 5103(a). Since the Board is remanding this case for other matters, it is reasonable for the RO to give additional VCAA notice to comply with Vazquez. Accordingly, the case is REMANDED for the following action: 1. The RO should provide proper VCAA notice with respect to the increased rating claim(s) that includes: (1) notification that the claimant must provide (or ask the Secretary to obtain), medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) at least general notice of any specific measurement or testing requirements needed for an increased rating if the Diagnostic Code contains rating criteria that would not be satisfied by demonstrating only a general worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life; (3) notification that if an increase in disability is found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from 0% to as much as 100% (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life; and (4) notification of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation- e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability, as outlined by the Court in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 2. After completion of the above, the RO should review the expanded record, to include the additional evidence submitted by the veteran since the previous supplemental statement of the case, and readjudicate the issues. The RO should furnish the veteran with an appropriate supplemental statement of the case. The case should be returned to the Board after the veteran is afforded an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet.App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).