Citation Nr: 1327762 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 10-10 879 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to an increased (compensable) rating for the service-connected chronic rhinitis with sinusitis. ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran served on active duty from November 2000 to November 2005. This appeal to the Board of Veterans' Affairs (Board) arose from a March 2009 rating decision in which the RO continued the Veteran's 0 percent (noncompensable) rating for chronic rhinitis with sinusitis. The Veteran filed a notice of disagreement (NOD) in March 2009, and the RO issued a statement of the case (SOC) in October 2009. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in October 2009. In September 2012, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After completing the requested development, the RO/AMC continued to deny the claim (as reflected in a February 2013 supplemental SOC (SSOC), an April 2013 SSOC, and a May 2013 SSOC) and returned the matter to the Board for further appellate consideration. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. For reasons expressed below, this matter is, again, being remanded to the RO, via the AMC, in Washington, DC. VA will notify the appellant when further action, on her part, is required. REMAND Unfortunately the Board finds that further RO action on the claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. In September 2012, the Board remanded the claim on appeal in order for the Veteran to be afforded a new VA examination and to obtain outstanding pertinent treatment records. Later in September 2012, the AMC contacted the Veteran to request that he complete a VA Form 21-4142 to enable obtain any outstanding private treatment records. In March 2013, the Veteran enclosed an updated 21-4142 for two private doctors, a Dr. G.M. and an emergency room. It was determined that the records for Dr. G.M. were already associated with the Veteran's claims file. In March 2013, the AMC notified the Veteran that the emergency room was contacted in order to obtain treatment records; this was done in letters in March 2013 and April 2013. Three pages were obtained from the emergency room dated in August 2012 and noted in the May 2013 SSOC. However, as discussed in further detail herein below, the Board finds that another VA examination is warranted for her service-connected chronic rhinitis with sinusitis in order to clarify the percentage of obstruction prior to her December 2008 surgery, the severity since her December 2008 surgery, and the side of the nose of the obstruction. Under Diagnostic Code 6522 allergic rhinitis warrants a 10 percent rating when there are no nasal polyps but with greater than 50 percent obstruction of nasal passages on both sides or complete obstruction on one side. A 30 percent rating is warranted when polyps are present. Alternatively, Diagnostic Code 6513, for sinusitis provides that 10 percent rating is assigned for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is assigned for 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. A 50 percent rating is assigned following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. A Note to Diagnostic Code 6522 provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. In this case, the Veteran was assigned a zero percent (noncompensable) rating because it was determined An October 2008 private treatment record indicated that the Veteran reported that she developed an aching pain in the left midface when she had nasal allergies and they were attributed to chronic sinusitis in the past. The impression was recurrent midface pain, presumably due to, at least episodic, sinusitis. The impression noted in the November 2008 private treatment note was recurrent sinusitis of excessive frequency. After the Veteran's December 2008 surgery, a December 2008 treatment note indicated that the Veteran was asymptomatic with no facial pain or purulent rhinorrhea. In August 2012 the Veteran was seen in the emergency room in part for chronic sinusitis. During the November 2008 VA examination, the Veteran reported that her sinus problems were constant and she had 365 non-incapacitating episodes per year but she did not have any incapacitating episodes. She had four to six weeks of antibiotic treatment. She did not have hoarseness of the voice or crusting but she did have interference with breathing through the nose, purulent discharge, and pain. She had constant interference with breathing and severe pain associated with the left side of the face; it was worse during the allergy season. She experienced headaches with her sinus episodes. On examination, no sinusitis was detected and her sinus x-ray study was noted to be within normal limits. An October 2012 VA examiner indicated that the Veteran did not have any non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the past 12 months. Nor did she have any incapacitating episodes of sinusitis requiring prolonged (4 to 6 weeks) of antibiotics treatment in the past 12 months. In a March 2013 statement, the Veteran alleged deficiencies in the November 2008 VA examination report, and with the October 2012 VA examination. She stated that the November 2008 VA examination report referred to right- sided nasal obstruction, whereas a November 2008 statement from her private physician indicated that she had left-sided nasal obstruction. She further noted that while the November 2008 VA examiner indicated that she did not have a deviated nasal septum, the November 2008 private report indicated that she did have a deviated septum. She also stated that the November 2008 VA examiner did not conduct a physical examination. Under the circumstances of this case, to include the conflicting medical findings noted above, the Board finds that the medical evidence currently of record is insufficient to evaluate the claim for higher rating, and that further examination and opinion to clarify the nature, extent, and severity of the Veteran's disability both prior to and since her December 2008 surgery. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006).. In addition to discussing the Veteran's current symptomatology, the VA examiner should discuss if the nasal obstruction is on the right side, the left side, or both; as well as to the extent possible, the amount of obstruction prior to her December 2008 surgery. The VA examiner should also opine whether the Veteran's headaches associated with her chronic rhinitis with sinusitis are distinguishable from her service-connected migraine headaches. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, shall result in a denial of the claim for increase. See 38 C.F.R. § 3.655(b) (2009). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file copies of any notice(s) of the date and time of the examination sent to her by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records, to include VA medical records. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the above-noted facilities all outstanding pertinent records of VA evaluation and/or treatment of the Veteran. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the appellant another opportunity to present information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that she has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain, any pertinent outstanding, private records. Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain all outstanding, pertinent records of evaluation and/or treatment of the Veteran's chronic rhinitis with sinusitis. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and her representative a letter requesting that she provide sufficient information, and if necessary, authorization to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any pertinent outstanding, private records. Clearly explain to the Veteran that she has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist her in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination, by an appropriate medical professional at a VA medical facility, for evaluation of her chronic rhinitis with sinusitis. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's medical history and assertions. All appropriate tests and studies should be accomplished (with all findings made available to the requesting individual prior to the completion of his or her report), and all clinical findings should be reported in detail. Based on examination of the Veteran, and review of all pertinent evidence, the examiner should render specific findings as to the characteristics of the Veteran's chronic rhinitis with sinusitis. The VA examiner should specifically state that he/she has examined the Veteran. The VA examiner must address the following in his/her report. A) For the period prior to the Veteran's December 2008 surgery, please identify the side(s) of any nasal obstruction, and determine, to the extent possible, whether the Veteran's private physician's description of her nasal obstruction as severe (in October 2008 and November 2008) is indicative of 50 percent obstruction of nasal passages on both sides or complete obstruction on one side. B) For the period since the Veteran's December 2008 surgery, please indicate whether there is any nasal obstruction, and, if so, whether there is 50 percent obstruction of nasal passages on both sides or complete obstruction on one side. C) For each period, please detail the number of incapacitating and non-incapacitating episodes of rhinitis, as well as the symptoms that accompanied the episodes. D) Also for each period, please indicate whether the Veteran's headaches associated with her service-connected chronic rhinitis with sinusitis separate/distinguishable from her service-connected migraine headaches. The examiner should set forth all examination findings, along with complete, clearly stated rationale for the conclusions reached (to include citation to specific evidence and/or medical authority, as appropriate), in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to her by the pertinent VA medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development action deemed warranted, readjudicate the claim on appeal in light of all pertinent evidence (to include all that added to the record since the RO's last adjudication) and legal authority. 8. If the benefit sought on appeal remains denied, furnish to the Veteran an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process, and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).