Citation Nr: 1121844 Decision Date: 06/06/11 Archive Date: 06/20/11 DOCKET NO. 10-21 602 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to a compensable evaluation for service-connected allergic rhinitis. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD Tanya A. Smith, Counsel INTRODUCTION The Veteran had active service from July 1980 to July 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In a July 2010 VA examination report, the VA examiner found that the Veteran's allergic rhinitis was a contributing factor for his chronic nasal sinus disease. The issue of entitlement to service connection for chronic nasal sinus disease as secondary to service-connected allergic rhinitis has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND After a review, the Board observes that further development is required prior to adjudicating the Veteran's claim. In connection with the Veteran's February 2009 claim for an increased rating, the Veteran was afforded a VA examination in April 2009. The VA examiner reported physical findings including the presence of congested nasal mucosa and provided a diagnosis of nasal sinusitis active disease. The last statement of the case was issued in April 2010. Thereafter, the Veteran's representative filed the substantive appeal in May 2010 and contended that the Veteran's rhinitis was progressively worsening and that he was continuing to receive VA treatment. The RO afforded the Veteran another VA examination in June 2010. The VA examiner reported that there was hypertrophy of the nasal turbinates. Other findings included no nasal polyps and deviated nasal septum to the right side with obstruction of more than 50 percent of the nasal airway on the right side. Again, rhinitis is not one of the diagnoses provided, and instead chronic nasal sinus disease is identified. Thereafter, the RO sought an opinion on whether it was likely the chronic nasal sinus disease was secondary to allergic rhinitis and whether there was any relationship between the deviation of the nasal septum and allergic rhinitis. In a July 2010 VA examination report, the examiner opined that the Veteran's "allergic rhinitis [was] a contributing factor for his chronic nasal sinus disease with the hypertrophy of the nasal turbinates," and the deflection of the nasal septum with obstruction of the nasal airway would aggravate the allergic rhinitis due to the encroachment on the nasal airway. Unlike at the June 2010 VA examination, here, the VA examiner appears to indicate that the hypertrophy of the nasal turbinates is due to or in part due to rhinitis and does not note to what extent. Also, it appears that the deviated nasal septum impacts the rhinitis as well. The foregoing medical findings show the Veteran has three distinct diagnosed disorders for VA purposes-specifically, service-connected allergic rhinitis and nonservice-connected chronic nasal sinus disease and deviation of the nasal septum. See 38 C.F.R. § 4.97, Diagnostic Codes 6522, 6513, 6502 (2010). The scope of the appeal involves only the Veteran's allergic rhinitis, and compensation is not available for a nonservice-connected disability that impacts or aggravates a service-connected disability. Johnston v. Brown, 10 Vet. App. 80, 85-86 (1997). The Board cannot determine from the examination findings provided the extent to which, if any, the rhinitis causes obstruction of the nasal passages, which is a criterion for evaluating rhinitis. Thus, the VA examination reports are inadequate for evaluation purposes and must be returned to the VA examiner for clarification. See 38 C.F.R. § 4.2 (2010); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, updated VA treatment records should be obtained. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records from the New Jersey VAMC dated since April 2010, pertaining to treatment the Veteran received for his rhinitis. 2. Return the April 2009, June 2010, and July 2010 VA examination reports along with the claims file to the conducting examiner (Dr. A.G.) for the examiner to clarify his findings. Specifically, the examiner should indicate in regard to allergic rhinitis only, is there greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. If the examiner is unable to make the determination without resorting to speculation, then the examiner should explain why this is so. If necessary, the Veteran should be afforded another appropriate VA examination that addresses the rating criteria. If this examiner is not available, schedule the Veteran for another appropriate examination that addresses the rating criteria. The claims file must be reviewed by the examiner and consideration of such should be reflected in the completed examination report. All necessary tests should be conducted. If the examiner is unable to differentiate between symptomatology attributed to the allergic rhinitis from other present disorders without a resort to speculation, then the examiner must provide an explanation on why this is so. 3. Thereafter, readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be issued a supplemental statement of the case. Consideration should be made of all evidence submitted since the issuance of the April 2010 statement of the case. The Veteran should be given an opportunity to respond before the case is returned to the Board. The Veteran 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. 2010). _________________________________________________ K. PARAKKAL 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) (2010).