Citation Nr: 1306492 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 09-12 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a disability rating greater than 10 percent for sinusitis with rhinitis, chronic. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1953 to February 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In June 2011 the Veteran testified before the undersigned at a Travel Board hearing at the RO. A transcript of this proceeding is of record and has been associated with the claims file. The Board remanded the issue on appeal in October 2011, and it has now been returned to the Board for adjudication. However, as will be discussed below, there has not been substantial compliance with the remand directives; therefore, the appeal must be again remanded. Stegall v. West, 11 Vet. App. 268 (1998). As noted in the October 2011 Board remand, the issue of entitlement to service connection for headaches secondary to service-connected sinusitis with rhinitis, chronic has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). As the Board does not have jurisdiction over this separate issue, and it does not appear to have been yet adjudicated by the AOJ, it is again referred to the AOJ for appropriate action. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 October 2011 the Board remanded the issue for a VA examination to determine the current level of impairment resulting from her service-connected chronic sinusitis with rhinitis. The Veteran's sinusitis with rhinitis is currently rated as 10 percent disabling, but the Veteran asserts that her symptoms warrant a 30 percent rating. She stated in a June 2011 Board hearing that in the past year she had been instructed to be on bed rest five or six times by a physician due to sinusitis and that these episodes, which involved migraine headaches, nausea, congestion, and swelling of the throat, each lasted approximately 4 days. Under Diagnostic Codes 6510, sinusitis is assigned a 30 percent rating when the disability manifests with three or more incapacitating episodes of sinusitis per year requiring prolonged (lasting four to six weeks) antibiotic treatment or more than six non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting. 38 C.F.R. § 4.97, Diagnostic Code 6510. The October 2011 Remand instructions specifically requested that the examiner indicate whether the Veteran met these specified criteria. In December 2012 the Veteran was afforded a VA examination at the Dallas VA Medical Center. The Veteran reported a history of postnasal drainage, congestion, watery eyes, sneezing, and periorbital swelling. She stated that she was currently treated with nasal spray and oral allergy medication. While she did not provide a history of incapacitating and non-incapacitating episodes in the past year, the examiner did not address whether the Veteran had these episodes. Based on the symptoms she reported during the examination, it is unclear whether she has experienced at least non-incapacitating episodes in the past year. The examiner diagnosed the Veteran with sinusitis and rhinitis and noted that he found no evidence of chronic sinusitis. In January 2013 the AMC requested an independent medical opinion from a VA physician. The physician reviewed the claims file, including the December 2012 examination report, however there was no discussion of symptoms or history of incapacitating or non-incapacitating episodes. The Board is obligated by law to ensure that the RO and AMC comply with its directives; the Board errs as a matter of law when it fails to ensure compliance. Stegall, 11 Vet. App. at 271. The December 2012 examiner and January 2013 physician failed to answer the questions specifically asked by the October 2011 Remand. Therefore, the Board finds that another medical examination is necessary to determine the current level of impairment resulting from the Veteran's service-connected sinusitis with rhinitis to ensure compliance with the October 2011 Remand directives. Stegall, 11 Vet. App. 268. The Board also notes that the October 2011 Remand instructed the RO/AMC to schedule the VA examination with an examiner other than the examiner who performed the February 2008 VA examination. However, information in the record indicates that the Dallas VA Medical Center has only one Ear, Nose, and Throat Specialist on staff. The Board requests that the RO/AMC again attempt to schedule the VA examination with an examiner other than the examiner who performed the February 2008 examination to the extent possible. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC should schedule the Veteran for an examination by an appropriate physician to determine the current level of impairment resulting from service-connected sinusitis with rhinitis. If possible, the examination should be performed by a VA examiner other than the examiner who performed the February 2008 and December 2012 examinations. The claims folder, including copies of this Remand and the October 2011 Board Remand, must be provided to and reviewed by the examiner in conjunction with the examination. Such review must be noted in the examination report. After review of the claims file and consideration of the Veteran's statements regarding her medical history, the examiner must specifically indicate whether the Veteran has experienced three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment; or, more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The examiner must also state whether the Veteran has had radical surgery with chronic osteomyelitis, or experiences near constant sinusitis characterized by headaches, pain, and tenderness of the affected sinus and purulent discharge or crusting after repeated surgeries. The examiner is asked to consider that an "incapacitating episode" of sinusitis is defined as one that requires bed rest and treatment by a physician. The reasons and bases for all opinions expressed should be provided and the report should include a discussion of the Veteran's documented medical history, statements and assertions. If the examiner cannot provide an opinion, the examiner must affirm that all procurable and assembled data was fully considered and a detailed rationale must be provided for why an opinion cannot be rendered. 2. Upon completion of the above requested development, and any additional development deemed appropriate, the RO/AMC must readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the appellant and her representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). 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. 2012). _________________________________________________ M. MAC Acting 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) (2012).