Citation Nr: 1304236	
Decision Date: 02/06/13    Archive Date: 02/19/13

DOCKET NO.  00-12 213	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for a gastrointestinal disability to include secondary service connection.

2.  Entitlement to service connection residuals of gonorrhea.

3.  Entitlement to an initial rating higher than 10 percent for sinusitis with headaches.

4.  Entitlement to an initial compensable rating for allergic rhinitis.

5.  Entitlement to a disability rating higher than 10 percent for residuals of a fracture of the mandible with temporomandibular joint dysfunction and dental malocclusion.  

REPRESENTATION

Veteran is represented by:	Texas Veterans Commission



WITNESS AT HEARING ON APPEAL

The Veteran
ATTORNEY FOR THE BOARD

S. Coyle, Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from July 1971 to July 1975. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in February 2005, January 2008, and September 2009 of a Regional Office (RO) of the Department of Veterans Affairs (VA).

In May 2006, the Veteran appeared at a hearing on the claims for increase for rhinitis and sinusitis before the undersigned Veterans Law Judge on March 26, 2006.  A transcript of the hearing is in the Veteran's file. 

In a decision in July 2008, the Board denied the claims for increase for rhinitis and sinusitis.   The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  In March 2009, the Court granted a Joint Motion to vacate the Board's decision for readjudication consistent with its Order.

In December 2009, the Board remanded the claims further evidentiary development.  

On the remaining claims, in March 2012, the Veteran did not appear for a hearing before the Board.  In the absence of a timely request for postponement, the request for a hearing is deemed withdrawn. 


In July 2012, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board obtained a medical expert opinion from the Veterans Health Administration (VHA).  The Veteran and his representative have been provided a copy of the VHA opinion and then afforded the opportunity to submit additional argument and evidence, but no further argument or evidence has been submitted.  

The Veteran has a pending claim of service connection for disability of feet.  

The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC.  


REMAND

In a rating decision in November 2012, the RO granted a total disability rating for compensation based on individual unemployability.  In the rating decision, there is reference to records of the Social Security Administration (SSA) and to statements of private physicians.  Also, there are VA records considered by the RO that are not in the Veteran's file.  And the records of treatment for sinusitis and for a gastrointestinal disability by private physicians are incomplete.  

On the claim of service connection for a gastrointestinal disability, the Veteran asserts that disability is the result of service-connected sinusitis, which has not been addressed.  

On the claim for increase for sinusitis, on VA examination in July 2010, the VA examiner did not address the frequency of episodes of sinusitis as directed by the Board in its remand in December 2009.  Under Stegall v. West, 11 Vet. App. 268, 271 (1998), a remand is necessary to ensure compliance with the Board's directive.





Accordingly, the case is REMANDED for the following action:

1.  Obtain the records of the Social Security Administration. 

If the record do not exist or further attempts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 

2.  Ask the Veteran either to submit or to authorize VA to obtain on his behalf the records of Dr. S. Parks, of Dr. S. Indupalli since July 2007, and of Dr. Heartfield since May 2008. 

3.  Obtain records from the Houston VAMC from June 2008 to May 2011 and since September 2012.  

4.  Afford the Veteran for a VA examination to determine:  

Whether it is more likely than not (greater than 50 percent probability), at least as likely as not (approximately 50 percent probability), or less likely than not (less than 50 percent probability) that gastroesophageal reflux disease or other current gastrointestinal symptoms are caused by or aggravated by service-connected sinusitis, including the medications for treatment of sinusitis.  






In this context, the term "aggravation" means a permanent increase in gastroesophageal reflux disease or other current gastrointestinal symptoms, that is, an irreversible worsening beyond the natural clinical course as contrasted to a temporary worsening of symptoms due to the service-connected sinusitis.  

The Veteran's file must be made available to the examiner for review. 

5.  Afford the Veteran a VA examination in the summer or fall months when the Veteran's sinusitis is active. 

The VA examiner is asked to comment on whether at the time of the examination sinusitis was in an active phase, and, if not, when was the last active phase.  

The VA examiner is also asked whether the Veteran has 3 or more incapacitating episodes per year of sinusitis requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment; or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting.  

The term "incapacitating episode" is one that requires bed rest and treatment by a physician.  

The Veteran's file must be made available to the examiner for review.


6.  After the above development is completed, adjudicate the claims.  If any benefit sought is denied, furnish the Veteran and his representative a supplemental statement and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A.      §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals