Citation Nr: 1319971	
Decision Date: 06/20/13    Archive Date: 07/02/13

DOCKET NO.  05-17 023	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUES

1.  Entitlement to service connection for a sinus disability.  

2.  Entitlement to an extra-schedular rating, pursuant to 38 C.F.R. § 3.321, for service-connected right foot and ankle, status post exostectomy, tarsal tunnel release, plantar fasciotomy, reflex sympathetic dystrophy, pes planus.  

3.  Entitlement to a total disability rating due to individual unemployability (TDIU) based on service-connected disability.  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

R. Giannecchini, Counsel


INTRODUCTION

The Veteran had active military service from June 16, 1986, to August 30, 1986, and from November 1987 to February 2004.  

This matter comes to the Board of Veterans' Appeals (Board) following an appeal of a July 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana.

In November 2010, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of that hearing is of record. 

In September 2011, the Board granted a rating to 30 percent for status post exostectomy, tarsal tunnel release, plantar fasciotomy, reflex sympathetic dystrophy, pes planus, right foot, effective the date of the initial grant of service connection, March 1, 2004.  It otherwise remanded the issue of an extra-schedular rating for the above issue, as well as remanded the issues of service connection for a disability manifested by chest pains and for a sinus disability, in addition to the claim for entitlement to a TDIU.  (The issues with respect to a TDIU and an extra-schedular rating were raised by the Board in the September 2011 decision based on its review of the evidence of record at that time.)

In February 2013, the Board denied the Veteran's claim for service connection for disability manifested by chest pains.  It remanded the remaining claims on appeal (noted on the title page of this decision/remand) for additional development.  Following the completion of the development requested, the RO continued the denial of the Veteran's claims and issued a supplemental statement of the case (SSOC) in April 2013.  The Veteran's claim has since been returned to the Board for further appellate review.  

The issues of entitlement to a TDIU and entitlement to an extra-schedular rating, pursuant to 38 C.F.R. § 3.321, for service-connected right foot and ankle, status post exostectomy, tarsal tunnel release, plantar fasciotomy, reflex sympathetic dystrophy, pes planus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The Veteran has sinusitis that is attributable to his service-connected allergic rhinitis.  


CONCLUSION OF LAW

The Veteran's sinusitis is proximately due to service-connected disability.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012); 38 C.F.R. § 3.310 (2006).  


REASONS AND BASES FOR FINDING AND CONCLUSION

The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 & 3.326(a) (2012).  The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate the claim, including apprising him of his and VA's respective responsibilities in obtaining this supporting evidence.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  
As is discussed in more detail below, the Veteran's claim for service connection for sinusitis has been granted.  As such, consideration of the VCAA with respect to this claim is not warranted.  

Service Connection for Sinusitis

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service.  38 U.S.C.A. §§ 1110, 1131.  Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d).

Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Also, the pertinent VA regulations state that a disability which is proximately due to or the result of a service-connected disease or injury is considered service connected, and when thus established, this secondary condition is considered a part of the original condition.  38 C.F.R. § 3.310(a).  

Of note, in 2006, VA amended the provisions of 38 C.F.R. § 3.310.  See 71 Fed. Reg. 52744-47 (Sept. 7, 2006).  The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged.  It was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the nonservice-connected disability before an award of service connection based on aggravation may be made.  This had not been VA's practice, which strongly suggests that the change amounts to a substantive change in the regulation.  Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which version favors the claimant.  

Service treatment records document treatment for sinusitis and nasal congestion.  

Post-service medical evidence reflects a diagnosis of allergic rhinitis on VA examination in June 2004.  On the basis of that examination and evidence associated with the Veteran's period of service, the Veteran was service connected for allergic rhinitis.  

VA treatment records dated since June 2004 reflect continued complaints and treatment for sinus problems, congestion, and nasal allergies, to include diagnoses for allergic rhinitis.  The Veteran's VA medical "active problem" list notes allergic rhinitis.  Computed tomography (CT) scans of the Veteran's sinuses have not necessarily identified active sinus disease.  In a February 2005 VA treatment note, the Veteran was treated for congestion and erythema of the bilateral nares.  The diagnosis was sinusitis/pharyngitis.  Records also reflect a diagnosis of sinusitis per an August 2009 VA treatment note, and a VA allergy and immunology note, dated in August 2011, notes an impression of allergic rhinosinusitis.  Otherwise, the Veteran underwent a nasal turbinate reduction in January 2012.  

In a March 2012 opinion, the VA examiner commented, in particular, that the diagnoses of sinusitis in service were isolated instances, and that the disability did not develop into a chronic condition due to the lack of any pattern of treatment.  The VA examiner also commented that based on her review of medical literature, allergic rhinitis and sinusitis were interrelated, based on the structure of the nose and paranasal sinuses, as well as the fact that both conditions influenced the other.  

In a subsequent April 2013 addendum medical opinion, provided by a different VA examiner, it was reported that the Veteran did have chronic sinusitis.  The examiner explained, in part, that the openings to the sinuses were located in the nasal cavity and could become obstructed and infected when the nasal mucosa was irritated or inflamed or became swollen due to allergies.  The examiner also explained that sinusitis was often precipitated by a nasal irritation.  The examiner opined that the Veteran's chronic sinus problems (sinusitis) were related to his service-connected allergic rhinitis.  

The Board finds the April 2013 medical opinion to be persuasive and probative of the medical issue under consideration.  The examiner has provided an explanation for the opinion, and the opinion is consistent with other medical literature reviewed by the Board.  Thus, in light of medical opinion evidence of record, the Board finds that the Veteran's sinusitis is proximately due to service-connected disability (allergic rhinitis).  Therefore, the Board concludes that service connection for sinusitis is warranted.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.310, 4.7.  


ORDER

Entitlement to service connection for sinusitis is granted.  


REMAND

TDIU Rating

In a report of April 2011 psychological examination associated with the Veteran's claim for Social Security Administration (SSA) benefits, the Veteran reported that he was unable to work due to his pain and also due to the medications that he took for his disabilities which made him drowsy.  A review of a May 2011 VA active medication list notes, in particular, that the Veteran was taking a number of medications for sinus and nasal congestion, hydrocodone for pain control, lisinopril for hypertension, and topiramate for nerve pain.  

In its February 2013 remand instructions, the Board requested that a VA examiner provide an opinion concerning the Veteran's claimed unemployability due to his service-connected disabilities.  In particular, one of the Board's remand action paragraphs noted the following,

The examiner should also give reasons for accepting or rejecting the Veteran's report of being unable to work due to chronic foot pain, limited mobility, and drowsiness secondary to medications.  

A review of the April 2013 medical opinion provided in response to the Board's request does not reflect any discussion by the examiner of whether the Veteran's medications resulted in drowsiness that impairs or precludes gainful employment.  Furthermore, none of the other evidence associated with the claims folders addresses this issue.  

The United States Court of Appeals for Veterans Claims (Court) has held that in adjudicating a TDIU claim, there must be an assessment of the side effects of the medications taken for a service-connected disability.  See Mingo v. Derwinski, 2 Vet. App. 51 (1992); Moyer v. Derwinski, 2 Vet. App. 289 (1992) (remand warranted for Board to address appellant's unemployability in light of the pain he suffered and the effect of narcotic painkillers).  If a medication induces marked drowsiness, for instance, this side effect could definitely present an obstacle for a claimant that would influence his or her ability to "secure and follow a substantially gainful occupation."  

Therefore, the claims folders should be referred back to the VA examiner who provided the April 2013 TDIU opinion (see tabbed opinion in Vol. 5 of the claims folders).  The examiner should offer an addendum medical opinion and address whether the Veteran's medications prescribed for his service-connected disabilities are capable of inducing marked drowsiness and influencing his ability to "secure and follow a substantially gainful occupation."  See e.g. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers upon a claimant, as a matter of law, the right to compliance with the Board's remand order).  

Extra-Schedular Rating

Under 38 C.F.R. § 3.321(b), one of the factors (or elements) to be considered in determining whether an extra-schedular rating is warranted for the Veteran's service-connected right foot and ankle, status post exostectomy, tarsal tunnel release, plantar fasciotomy, reflex sympathetic dystrophy, pes planus, is "marked interference with employment."  See e.g., Anderson v. Shinseki, 22 Vet. App. 423, 428 (2009).  

Given the above remand of Veteran's claim for an increased rating based on TDIU, the Board finds that the TDIU claim is inextricably intertwined with the question of "marked interference with employment."  Furthermore, any determination regarding the effects of medication on the Veteran's industrial capacity may affect any extra-schedular determination.  

Inasmuch as the issue of entitlement to an extra-schedular rating for service-connected right foot and ankle, status post exostectomy, tarsal tunnel release, plantar fasciotomy, reflex sympathetic dystrophy, pes planus is deemed to be inextricably intertwined with the issue of entitlement to a TDIU, the issue is deferred to allow for the requested development as noted above.  

Accordingly, the case is REMANDED for the following action:

1.  Obtain the Veteran's most recent VA treatment records.  Current VA medical records associated with the claims folders (to include Virtual VA) are dated no later than February 2012.  

2.  After completion of the above, the claims folders should be referred back to the VA examiner who provided the April 2013 TDIU opinion (see tabbed opinion in Vol. 5 of the claims folders), for an addendum medical opinion.  A copy of this remand must be made available to the examiner for review in connection with the requested opinion.  After any necessary review of the claims folders, to include the April 2013 opinion, the examiner should opine as to whether the Veteran's service-connected disabilities, including the medications prescribed for them and their effects (including drowsiness), preclude the Veteran from his ability to "secure and follow a substantially gainful occupation," to include sedentary employment.  

The opinion and conclusions expressed must be supported by a complete explanation.  The Veteran's service-connected disabilities are 1.) right foot and ankle, status post exostectomy, tarsal tunnel release, plantar fasciotomy, reflex sympathetic dystrophy, pes planus; 2.) degenerative joint disease at C4-5, with cervical spondylosis; 3.) chondromalacia of the knees; 4.) chronic low back strain; 5.) scar, hypertrophic and tender, of the right foot; 6.) tinea pedis and pseudofolliculitis barbae; 7.) pes planus of the left foot; 8.) allergic rhinitis; 9.) sinusitis; 10.) hypertension; and 11.) G-6-PD deficiency.  

If the VA examiner is not available to provide the addendum opinion, make arrangements for the file to be reviewed by another examiner who should be asked to supply the opinion.  (If further examination of the Veteran is necessary to provide the requested opinion, the Veteran should be scheduled for an examination and the necessary opinion requested.)  

3.  After the above has been completed, undertake any additional evidentiary development deemed appropriate.  Then, re-adjudicate the claims for entitlement to a TDIU and consider whether the claim should be referred to the Director of Compensation and Pension for an extra-schedular rating pursuant to 38 C.F.R. § 3.321 for service-connected right foot and ankle, status post exostectomy, tarsal tunnel release, plantar fasciotomy, reflex sympathetic dystrophy, pes planus.  If the benefits sought are denied, the Veteran and his representative must be provided an SSOC and given an opportunity to respond before the case is returned to the Board for appellate review.

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).
These claims must be afforded expeditious treatment.  The law requires that all claims 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).



______________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs