Citation Nr: 1324433 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 10-05 216 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating for maxillary sinusitis with retention cyst in excess of 10 percent. 2. Entitlement to an initial rating for residuals of cholecystectomy with a scar in excess of 10 percent. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Eckart, Counsel REMAND The Veteran had active military service from January 1974 to October 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which granted service connection for sinusitis and residuals of a cholecystectomy and assigned initial noncompensable evaluations. Subsequently, 10 percent ratings have been assigned for each disability. After having considered the matters on appeal, and for reasons expressed immediately below, the Board finds that the issues on appeal must be remanded for further development. The Veteran was afforded a VA examination in October 2009. Subsequently, he has contended that his symptoms are more severely disabling than those described by the October 2009 VA examiner. See, e.g., the Appellant's Brief dated July 2013 located in the electronic folder. On his VA Form 9 dated in February 2010, the Veteran asserted that he experienced four episodes of sinusitis in the previous year, arguing that he met the criteria for a 30 percent rating. He also argued that he has had post-cholecystectomy residuals of diarrhea and loose bowels after meals. The October 2009 VA examiner noted that the Veteran had sinus episodes accompanied by headaches with 3 to 4 non-incapacitating episodes in the previous twelve months. Regarding the cholecystectomy residuals, the examiner noted the Veteran to have loose stools, with no abdominal pain, fatty stool, jaundice, diarrhea or vomiting. He denied any overall functional impairment from these conditions. Since this examination, the Veteran's representative argued in a July 2013 brief, stating that both conditions had worsened, with the sinusitis now causing 3-5 incapacitating episodes be year, with headaches, pain and dizziness. The brief argued that a rating in excess of 10 percent was warranted for the sinusitis. The representative further argued that the Veteran's post-surgery gallbladder symptoms were now "severe" and additionally argued that a separate 10 percent rating was warranted for the scar, which has been painful. Accordingly, medical evidence needs to be obtained regarding the current nature and extent of the Veteran's service-connected sinusitis and residuals of cholecystectomy with a scar. (Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994).) Thus, another examination, with findings responsive to the applicable rating criteria, is needed. See VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Also, on remand, any pertinent ongoing treatment records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). The Board notes that currently there are no records of treatment for either condition associated with the claims folder or electronic record. Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure any records of outstanding treatment with respect to the Veteran's service-connected sinusitis and residuals of cholecystectomy that the Veteran has recently received. All such available documents should be associated with the claims file. 2. Thereafter, the Veteran should be afforded a VA examination to determine the current severity of his service-connected sinusitis with retention cyst. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated studies, including x-rays, should be performed. The examiner should detail the symptomatology associated with the service-connected sinusitis, including the frequency and severity of incapacitating episodes, or episodes of headaches, pain, and purulent discharge or crusting. The examiner should specifically note the frequency and duration of episodes requiring antibiotic treatment. The examiner's findings should include a detailed review of the Veteran's relevant treatment records. All pertinent symptomatology and findings should be reported in detail. The rationale for all opinions expressed by the VA examiner should also be provided. If the examiner is unable to provide an opinion as to one of the questions posed, he/she should state the reasons therefore. 3. After all available records and/or responses have been associated with the claims file, the agency of original jurisdiction should arrange for the veteran to undergo a VA examination by a gastroenterologist to determine the extent and current severity of any residuals associated with his cholecystectomy. The entire claims file, to include a complete copy of this remand, must be provided to the physician designated to examine the veteran. All appropriate tests and studies (should be accomplished (with all findings made available to the physician prior to the completion of his or her report) and all clinical findings should be reported in detail. The physician should identify all symptoms and manifestations of any residuals associated with the veteran's gallbladder removal, to include surgical scars. The examiner should set forth all examination findings, together with the complete rationale for the comments and opinions expressed. 4. After completing the development requested above, readjudicate the claim for a higher rating greater for the service-connected sinusitis and residuals of cholecystectomy with scar (to consider the appropriateness of assigning a separate rating for the scar). If a benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).