Citation Nr: 1325316 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 10-36 475A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial compensable evaluation for allergic rhinitis/sinusitis. 2. Entitlement to an initial compensable evaluation for gastroesophageal reflux disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from December 1979 to December 1984. This case originally came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In a rating decision of April 2010, the RO granted service connection (and respective noncompensable evaluations) for allergic rhinitis/sinusitis and gastroesophageal reflux disease, effective from October 4, 2000, the date of receipt of the Veteran's initial claim. The Veteran voiced his disagreement with the assignment of those respective noncompensable evaluations. In a decision of September 2010, the Board denied multiple claims. At that same time, the Board remanded for additional development the issues of entitlement to initial compensable evaluations for allergic rhinitis/sinusitis and gastroesophageal reflux disease. The case is now, once more, before the Board for appellate review. Upon review of this case, it is unclear whether, in addition to the issues currently before the Board, the Veteran seeks entitlement to a total disability rating based upon individual unemployability. Inasmuch as that issue has not been developed or certified for appellate review, it is not for consideration at this time. It is, however, being referred to the RO for clarification, and, if necessary, appropriate action. Finally, for reasons which will become apparent, the appeal as to the issues of initial compensable evaluations for service-connected allergic rhinitis/sinusitis and gastroesophageal reflux disease is once again being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. REMAND The Veteran in this case seeks increased evaluations for service-connected allergic rhinitis/sinusitis and gastroesophageal reflux disease. However, evidence currently on file raises some question as to the current severity of each of those disabilities. In that regard, a review of the record discloses that the Veteran last underwent VA compensation and pension examinations for the purpose of determining the nature and etiology of those disabilities in December 2009, approximately three and one-half years ago. Moreover, during the course of a hearing before the undersigned Veterans Law Judge in March 2013, the Veteran indicated that, since the time of those examinations, her service-connected allergic rhinitis/sinusitis and gastroesophageal reflux disease had become progressively worse. Significantly, since the time of the December 2009 VA examinations, the Veteran has reportedly received ongoing treatment for her service-connected allergic rhinitis/sinusitis and gastroesophageal reflux disease. Under the circumstances, the Board is of the opinion that additional, more contemporaneous examinations would be appropriate prior to a final adjudication of the Veteran's claims for increase. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Finally, the Board notes that, since the time of the issuance of a Statement of the Case (SOC) in September 2010, there have been added to the Veteran's file private medical records, at least some of which are arguably relevant to her current claims. In view of the need for additional development, and to ensure due process, the AMC/RO will have the initial opportunity to review these records. See 38 C.F.R. § 20.1304(c) (2012). Accordingly, in light of the aforementioned, the case is once again REMANDED to the RO/AMC for the following actions: 1. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to March 2013, the date of the most recent evidence of record, should be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and her representative should be informed of any such problem. 2. The Veteran should then be afforded additional VA otolaryngologic and gastrointestinal examinations in order to more accurately determine the current severity of her service-connected allergic rhinitis/sinusitis and gastroesophageal reflux disease. The Veteran is hereby notified that it is her responsibility to report for the examinations, and to cooperate in the development of her claims. The Veteran is further advised that the consequences for failure to report for a VA examination without good cause may include denial of her claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examinations was sent to her last known address. It should also be indicated whether any notice sent was returned as undeliverable. Following completion of the examinations, and in accordance with the latest VA worksheets for evaluating service-connected allergic rhinitis/sinusitis and gastroesophageal reflux disease, the examiners are to provide a detailed review of the Veteran's pertinent medical history and current complaints, as well as the current severity of her service-connected allergic rhinitis/sinusitis and gastroesophageal reflux disease. In addition, following completion of the otolaryngologic examination, the examiner should, to the extent possible attempt to differentiate symptomatology attributable solely to the Veteran's service-connected allergic rhinitis/sinusitis from that more likely attributable to her service-connected asthma. A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. The claims folder must be made available to and reviewed by the examiners prior to completion of the examinations. In addition, the examiners must specify in their reports that the claims file and Virtual VA records have been reviewed. 3. The RO/AMC should then review the examination reports to ensure that they are in complete compliance with the directives of this REMAND, and that the examiners have documented their consideration of all records contained in Virtual VA. If the reports are deficient in any manner, the RO/AMC must implement correct procedures. 4. The RO/AMC must then readjudicate the Veteran's claims for initial compensable evaluations for service-connected allergic rhinitis/sinusitis and gastroesophageal reflux disease. This adjudication must consider all evidence submitted since the time of the aforementioned Statement of the Case (SOC) in September 2010, to include recently received private medical records currently contained in the Veteran's claims file. Should the benefits sought on appeal remain denied, the Veteran and her representative should be provided with a Supplemental Statement of the Case (SSOC) which contains notice of all relevant action taken on the claims for benefits since September 2010. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. The appellant 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). 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). _________________________________________________ MICHAEL D. LYON 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).