Citation Nr: 1330852 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 06-11 175A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Entitlement to an increased initial rating for rhinitis and sinusitis, evaluated as noncompensable prior to March 18, 2010, and as 10 percent thereafter. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Cheryl King, Agent WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2009, the Board remanded the claim for an initial compensable rating for rhinitis and sinusitis for additional development. In an April 2011 rating decision, the AMC assigned a 10 percent evaluation for rhinitis and sinusitis with an effective date of March 18, 2010. In September 2012, the Board again remanded this claim for additional development. The Veteran's representative alleges the Veteran is unable to work due to his rhinitis and sinusitis disability. A TDIU is part of an increased rating claim when such claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, that issue has been included on the cover page. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this Veteran's case should take into account the existence of this electronic record. In an August 2012 letter, the Veteran's representative stated she had not yet reviewed the claims file but noted that in addition to the Veteran's sinusitis and rhinitis, the Veteran suffered from nasal septum deviation, ear irritation, decreased hearing, headaches, chronic laryngitis, and acid reflux. She stated that since she did not have the claims file, she could not determine whether such conditions are related to his service connected condition or not. The Board notes review of the claims file reveals the Veteran is already service connected for tonsillitis rated as laryngitis, and that claims for a stomach disability to include gastroesophageal reflux disease and hearing loss were denied by the Board in September 2011. After being provided a copy of the claims file, the Veteran's representative has not alleged that service connection is warranted for the disorders. If the Veteran and his representative want to file a claim for the noted disorders, they should do so with specificity at the RO. In a February 2013 statement, the Veteran's representative raised the issue of service connection for sleep apnea. Such issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. For the reasons explained below, the issues listed on the cover page are REMANDED to the RO via the Appeals Management Center (AMC). VA will notify the Veteran if further action is required on his part. REMAND The Veteran was granted service connection for chronic rhinitis and acute sinusitis in February 2009, and assigned a noncompensable disability rating, effective from January 25, 2005. In a subsequent April 2011 rating decision, the Veteran's disability rating was increased to 10 percent, effective from March 18, 2010. In her 2013 statement, the Veteran's representative referenced VA treatment occurring in 2013. The latest VA treatment records associated with the file are dated in June 2012. Updated VA treatment records from the VA Medical Center in Tampa should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Further, as indicated in the Introduction, the Veteran's representative has raised a claim for TDIU due to service connected rhinitis and sinusitis. Such claim is considered part and parcel of the claim for increase for the underlying disability. See Rice, supra. The Board notes that the Veteran has not been provided notice for a TDIU claim pursuant to the Veterans Claims Assistance Act (VCAA). Such should be provided on remand. In addition, the Veteran should be asked to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain relevant information concerning his employment history, education, and income. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided with proper VCAA notice that informs him of the information and evidence necessary to substantiate a claim for a TDIU. In addition, ask the Veteran to fully complete a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and return it to VA. 2. Obtain relevant VA treatment records dated since June 2012 from the Tampa VA Medical Center. 3. After the above has been completed to the extent possible and any additional development deemed necessary is completed, adjudicate the claims for an increased initial rating and TDIU. If these claims remain denied, a supplemental statement of the case should be issued, which includes the relevant laws pertaining to a TDIU, and the Veteran and his representative should be given an appropriate period to respond before the case is returned to the Board for further appellate consideration. 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). 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). _________________________________________________ K. A. BANFIELD 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).