Citation Nr: 1032296 Decision Date: 08/27/10 Archive Date: 09/01/10 DOCKET NO. 08-09 967 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating for sinusitis, currently rated 30 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Emily L. Tamlyn, Associate Counsel INTRODUCTION The Veteran served on active military duty from June 1954 to June 1957. These issues come before the Board of Veterans' Appeals (Board) on appeal from separate rating actions of two different Department of Veterans Affairs Regional Offices (ROs). In May 2007, the RO in Cleveland, Ohio denied entitlement to a TDIU. In June 2000, the RO in Atlanta, Georgia, continued the a 30 percent rating for sinusitis. The Veteran filed a notice of disagreement in July 2000. In October 2000, the RO increased the Veteran's rating to 10 percent. The Veteran filed a document in January 2001 which was accepted as a substantive appeal. In the document, the Veteran stated the RO decision "should have been 30" percent. He also said he met the symptoms for a 30 percent rating. In a July 2001 statement, the Veteran repeated the 30 percent criteria. In August 2001, the Veteran stated: "The 10 percent rating I feel meets the criterie for 30 percent or better." In October 2003, the RO increased the Veteran's disability rating for sinusitis to 30 percent. After an inquiry from the Veteran's congressman, the Atlanta RO wrote to say that because the Veteran's disability level for his sinusitis was increased to 30 percent, the appeal was effectively closed. Where there is no clearly expressed intent to limit the appeal to entitlement to a specific disability rating for the service- connected condition, VA is required to consider entitlement to all available ratings for that condition. A.B. v. Brown, 6 Vet. App. 35 (1993). The Veteran's sinusitis is rated under Diagnostic Code 6510 for chronic pansinusitis. The general rating formula for sinusitis provides ratings up to 50 percent. 38 C.F.R. § 4.97, Diagnostic Code 6510 (2009). Therefore, the Board finds the issue of an increased rating for sinusitis remains on appeal. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND The issue of entitlement to an increased rating for sinusitis remains on appeal. The Veteran should be sent a notice letter regarding that issue. Also, the Veteran requested a Board hearing in July 2001 on that issue. He should be contacted to determine whether he still desires a Board hearing. If so, a Board hearing should be scheduled. The Veteran contends that he is entitled to a TDIU and currently meets the schedular combined rating for a TDIU. 38 C.F.R. § 4.16(a) (2009). In the Veteran's July 2006 TDIU application, the Veteran said his service-connected disabilities affected full time employment in 1990 and that he last worked full time in July 1990. He listed his last full time employer as: Valdosta, Georgia Board of Education (BOE). The Veteran also listed his last employer, the State of Georgia Department of Corrections, where he claimed he worked part-time until 1997. A January 2007 report of contact shows that the Veteran called to notify the RO that they had sent a letter requesting information to an incorrect employer. The correct employer was Valdosta City Schools. The Veteran gave the address of the correct past full-time employer: Valdosta City BOE, 1204 Williams Street, Valdosta, Georgia, 31601. The mail sent to the incorrect employer was returned as undeliverable in January 2007. In the Veteran's July 2007 notice of disagreement, he stated that the RO did not contact Valdosta BOE. Information from the most recent employer, State of Georgia Department of Corrections, is associated with the file. On remand, a letter should be sent requesting employment information from the Valdosta, Georgia BOE. A negative reply is requested and all attempts to obtain information should be documented in the file. New VA examinations are warranted for both service-connected disabilities of sinusitis and anxiety disorder. For the service- connected sinusitis, the examiner should provide an opinion on the severity of the disability and the disability's impact on the ability of the Veteran to secure or follow a substantially gainful occupation. In determining the severity of the disability, the Veteran's October 2001 surgery (uvulopalatopharyngoplasty, anterior bilateral ethmoidectomy, septorhinoplasty and neck left) and the December 2006 VA general examination should be taken into account. Also, a July 2007 letter from Dr. Nechtman should be considered. Dr. Nechtman stated that he treated the Veteran for chronic sinusitis. That condition had been stable from October 2005 through June 2007. The Veteran had headaches and difficulty breathing. He also had overlapping symptoms of sleep apnea with nasal congestion and allergic rhinitis. Entitlement to individual unemployability must be established solely on the basis of impairment arising solely from service- connected disorders. Age is not a factor to be considered in evaluating unemployability. The examiner should only consider whether the service-connected disabilities are sufficient produce unemployability. 38 C.F.R. § 3.341(a) (2009). An August 1992 record from Dr. Oakley notes that the Veteran was a retired school teacher "continuing active with teaching of two night courses at the prison system." A November 1995 record from Dr. Holt shows that the Veteran recently stopped working at his part-time job. In October 1997, another record from Dr. Holt shows that the Veteran was considering substitute teaching. An April 1998 Eufaula Internal Medicine record shows that the Veteran had recently retired. His multiple nonservice-connected medical problems were listed. A July 2001 VA social work note shows the Veteran stated that he retired from teaching in 1990 and worked part-time until 1998. His occupations were teaching and school administration. He was a high school graduate and completed eight years of college. A May 2002 VA examination report shows the Veteran's explanation of his work history. The Veteran worked mapping tobacco land for one month before entering the service in June 1954. In service, he worked as a radio operator and as part of the military police. Then he received a degree in education in 1960. He worked mostly as a teacher and principal. From 1981 to 1990 he was a teacher at Valdosta High School in Valdosta, Georgia. In 1990, he had coronary artery disease and underwent coronary bypass surgery (this is a nonservice-connected disability). He retired from the public school system in 1990. From 1990 to 1995, he worked part- time as a teacher for Georgia correctional system in Georgia. He retired in 1995. In his July 2006 TDIU claim, the Veteran stated that his disability affected full time employment in 1990 and that he last worked full time in July 1990. He stated that he became too disabled to work in 1997. The name and address of his last three part time jobs and last two full time jobs were listed. For education, he listed a B.S. degree, a master's degree, and an Ed.D. degree. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a notice letter for his claim for an increased rating for service- connected sinusitis. 2. Contact the Veteran and ask if he still desires a Board hearing. If so, schedule the Veteran for an appropriate Board hearing. 3. Contact the Veteran's last listed full- time employer at: Valdosta City BOE, 1204 Williams Street, Valdosta, Georgia, 31601. Request the employer complete VA Form 21- 4192. A negative reply is requested and should be documented in the file. 4. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected sinusitis and the impact of that disability on his ability to secure or follow a substantially gainful occupation. The examiner should review the claims file and that review should be noted in the report. The examiner should provide the following: (a) The examiner should state whether the Veteran has had radical surgery with chronic osteomyelitis or has near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus and purulent discharge or crusting after repeated surgeries. (b) The examiner should reference: (1) the Veteran's October 2001 VA surgery records; (2) the December 2006 VA general examination; and (3) the July 2007 letter from Dr. Nechtman. (c) The examiner should state whether it is at least as likely as not (50 percent probability or more) that solely by reason of his service- connected disabilities (anxiety disorder and sinusitis), the Veteran is unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience, without consideration of his age or nonservice-connected disabilities. 5. Then, readjudicate the claims. If any decision remains adverse, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2009). The appellant has the right to submit additional evidence and argument on the 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2009).