Citation Nr: 1225014 Decision Date: 07/18/12 Archive Date: 09/11/12 DOCKET NO. 09-23 993 DATE JUL 18 2012 On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Entitlement to an initial compensable evaluation for sinusitis. REPRESENTATION Appellant represented by: Delaware Commission of Veterans Affairs ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from August 1993 to May 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for sinusitis and assigned a noncompensable evaluation for that disability, effective May 3, 2006—the date following the Veteran's discharge from service. This case was initially before the Board in July 2011, when the sinusitis claim was remanded for further development. Unfortunately, the appeal must again be 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 the July 2011 remand, the Board ordered that the Veteran be afforded a VA examination for his sinusitis. This was accomplished in August 2011. At that time, the examiner found the following: "[A]s mentioned in my previous examination^] he has a deviated nasal septum and chronic rhinitis with wet muscosa ? allergy[;] his throat with no tonsills [sic][,] his ears within normal limits.. .. [D]isease involves nose and sinuses." The examiner's response is not sufficiently responsive to the questions posed in the July 2011 remand. For example, the examiner was unclear as to whether the Veteran experiences incapacitating episodes of sinusitis. He was also asked, to address the frequency and severity of any nonincapacitating episodes characterized by headaches, pain, and purulent discharge and crusting. Additionally, the examiner was asked to medically distinguish the symptoms of the Veteran's nonservice-connected rhinitis from those of sinusitis. The examiner's remarks, set forth above, simply do not provide enough relevant detail as to the critical inquiries in this case. Accordingly, the Board finds that yet another remand is required at this time, both to ensure proper compliance with its previous remand and to obtain an adequate examination on which to rate the Veteran's sinusitis. See Barr v. Nicholson, 21 Vet. -2- App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise); see also Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). The RO/AMC should endeavor to find an appropriate examiner on remand which will provide an adequate examination for the Veteran's sinusitis, and SHOULD NOT schedule another examination with the June 2010/August 2011 examiner. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA sinus examination with an examiner other than the June 2010/August 2011 examiner to determine the current nature and extent of the Veteran's sinusitis. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary, including x-rays, should be conducted and the results reported in detail. After review of the claims file and examination of the Veteran, the examiner should comment as to the number of incapacitating episodes of sinusitis that the Veteran has experienced within the last 12-month period requiring prolonged (4-6 weeks) antibiotic treatment, as well as the frequency (in terms of number of episodes in the last year) and severity of the Veteran's non-incapacitating episodes of sinusitis, characterized by headaches, pain and purulent discharge and crusting. The examiner should also discuss whether the Veteran has had multiple surgeries and continues to experience nearly-continuous sinusitis symptoms, or whether he has had radical surgery resulting in chronic osteomyelitis. -3- The examiner should also specifically distinguish the Veteran's symptomatology associated with sinusitis, which is service connected, from the nonservice-connected chronic rhinitis symptomatology. If the symptoms cannot be medically distinguished with any degree of medical certainty, then the examiner should so state. Finally, the examiner should comment, as appropriate with respect to the June 2010 CT scan studies, as well as any other CT or x-ray evidence obtained since that time. Particularly, the examiner should comment as to what such studies indicate regarding the severity of the Veteran's sinusitis. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so much be provided. 2. Following the above development, the RO/AMC should review the claims file and readjudicate the Veteran's claim of an initial compensable evaluation for sinusitis. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). -4- 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. 2011). ERIC S. LEBOFF 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) (2011). -5-