Citation Nr: 1123353 Decision Date: 06/20/11 Archive Date: 06/28/11 DOCKET NO. 05-31 977 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a higher initial disability rating for the service-connected maxillary sinusitis with allergic rhinitis, rated as 10 percent disabling from August 1, 2004, and rated as 30 percent disabling from October 10, 2008. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from August 1978 to July 2004. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO granted service connection for maxillary sinusitis with a history of allergic rhinitis and assigned an initial 10 percent rating, effective from August 1, 2004. The Veteran disagreed with the initial rating assigned. The Veteran testified at a personal hearing before a Decision Review Officer (DRO) at the RO in December 2005. A transcript of his testimony is associated with the claims file. During the pendency of this appeal, claims of service connection for bilateral pes planus and gastroesophageal reflux disease were granted; and, to the Board's knowledge, the Veteran did not disagree with the initial ratings assigned for those disabilities. Additionally, a claim of service connection for sleep apnea was granted, and the initial 30 percent rating assigned from August 1, 2004, was subsequently increased to 50 percent effective from January 3, 2005. In March 2006, the Veteran submitted claims of service connection for a right knee disability, to include as secondary to the service-connected left knee arthritis; and, also submitted a claim for an increased rating for the service-connected left knee arthritis. In addition, the Veteran submitted an informal claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). These issues have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. In April 2008, the Board issued a decision denying entitlement to a compensable rating for service-connected hemorrhoids. The issue of entitlement to an initial rating in excess of 10 percent for the service-connected maxillary sinusitis with allergic rhinitis was remanded for additional development of the record. In a November 2010 statement, the Veteran submitted additional claims of service connection, as secondary to exposure to depleted uranium during service. These claims of service connection include polyarthritis of the right and left hips, constant leg pain, arthritis and stiffening of the right and left hand, arthritis and stiffening of the right and left wrists, erectile dysfunction, and arthritis of the right knee with stiffening, shortness of breath and difficulty breathing with low lung volume, constant runny nose, chronic cough, headaches, muscle pains, skin rashes and blisters affecting the groin area, and stiffening in the fingers. Additionally, the Veteran asserts that service connection for hearing loss and tinnitus is warranted on a presumptive basis. These issues have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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 In a VA Form 9, dated in October 2008, the Veteran specifically requested to appear for a Travel Board hearing before a Veterans Law Judge at the RO. Pursuant to 38 C.F.R. § 20.700(a), a hearing on appeal will be granted to an appellant who requests a hearing and is willing to appear in person. The Veteran is entitled to a hearing before a Veterans Law Judge, either in person, or via video conference in lieu of an in-person hearing, if he so chooses. 38 U.S.C.A. § 7107(b) (West 2002); 38 C.F.R. § 20.700. Given that the last correspondence received from Veteran with respect to this issue on appeal includes a clear and specific request for a travel board hearing, the case is remanded for the Veteran to be scheduled for a personal hearing, either in person, or via video conference if the Veteran so chooses. Accordingly, the case is REMANDED for the following action: Schedule the Veteran for a personal hearing at the RO, or, a video conference if the Veteran so chooses, before a Veterans Law Judge sitting in Washington, D.C., per the Veteran's request. The RO should notify the Veteran and his representative of the date, time and place of the hearing. After the hearing is conducted, or in the event the Veteran withdraws his hearing request or fails to report for the hearing, the claims file should be returned to the Board for appellate review. 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. 2010). _________________________________________________ S. S. TOTH 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).