Citation Nr: 1331388 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 09-45 251 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a sinus disorder, to include sinusitis and rhinitis. 2. Entitlement to a rating in excess of 30 percent for the Veteran's migraine headache disorder, to include entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and the Veteran's Spouse ATTORNEY FOR THE BOARD Tabitha G. Macko, Counsel INTRODUCTION The Veteran served on active duty from April 1988 to March 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied entitlement to service connection for a sinus condition and denied entitlement to a rating in excess of 10 percent for the Veteran's migraine headaches. Subsequently, in an October 2009 rating decision, the RO increased the Veteran's disability rating for migraine headaches to 30 percent, effective December 1, 2007. Accordingly, the issues on appeal are as stated on the cover page. In January 2009, the Veteran presented testimony at a hearing before a Decision Review Officer. Additionally, in November 2012, the Veteran presented testimony before the undersigned via video teleconference from the RO. Transcripts of both hearings have been associated with the record. With regard to the Veteran's sinus disorder claim, a review of the claims file reveals that the Veteran has been diagnosed with chronic sinusitis, allergic rhinitis, and seasonal allergies and/or obstruction. See May 31, 2006 letter from VA physician; VA treatment notes dated September 16, 2008; June 22, 2011; January 11, 2012; and October 3, 2012. Moreover, the Veteran has reported that her sinus symptoms include sinus pressure, seasonal congestion, and nasal drainage. See January 2009 Decision Review Officer Hearing Tr. at 4-5; November 2012 Board Hearing Tr. at 9-11. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. In light of Clemons, the Veteran's claim of entitlement to service connection for sinusitis has been recharacterized as a claim of entitlement to service connection for a sinus disorder, to include sinusitis and rhinitis, as reflected on the cover page. Additionally, with regard to the Veteran's migraine headache disorder claim, at her November 2012 Board hearing, the Veteran reported that her migraine headaches were a factor in her unemployment. See Board Hearing Tr. at 16. In this regard, the Board notes that, in an August 2008 rating decision (i.e., while the issue of entitlement to an increased rating for her service-connected migraine disorder was on appeal), the issue of entitlement to a TDIU was denied. The Board also notes that the Veteran did not initiate an appeal as to this issue. Significantly, however, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that, when evidence of unemployability is presented in cases such as this, the issue of whether a TDIU will be assigned should be handled during the determination of the initial disability rating assigned at the time disabilities are determined to be service connected. Id. at 452-53. In this regard, in Rice, the Court determined that there is no freestanding claim for TDIU. Id. at 451. Rather, a claim for TDIU is considered part and parcel of the claim for benefits for the underlying disability. Id. at 453-54. Therefore, in considering the increased rating issue on appeal, the Board finds that the issue of entitlement to a TDIU is also currently before the Board, as reflected on the cover page. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to service connection for a sinus disorder, to include sinusitis and rhinitis; and entitlement to a rating in excess of 30 percent for the Veteran's migraine headache disorder, to include entitlement to a TDIU. Before the Board can adjudicate these claims, however, additional development is required. The Board will discuss each of its reasons for remand in turn. I. Notice To date, the Veteran has not been provided with proper notice under the Veterans Claims Assistance Act of 2000 (VCAA) regarding her claim for entitlement to a TDIU. Specifically, she had not yet been provided with notice of the information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that she is expected to provide; or notice of the information or evidence needed to establish a disability rating and effective date for the TDIU claim on appeal. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(b)(1) (2013); Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) (Pelegrini II); Dingess v. Nicholson, 19 Vet. App. 473 (2006). As such, on remand, the Veteran should be notified of the information and evidence not of record that is necessary to substantiate her claim of entitlement to a TDIU. She must also be asked to complete a VA Form 21-8940, Veteran's Application for increased Compensation Based on Unemployability, in order to obtain her relevant employment information. II. VA Treatment Records A review of the Veteran's claims file reveals that treatment records from the VA Medical Center (VAMC) in Atlanta, Georgia, remain outstanding. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be in the constructive 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). As such, on remand, attempts should be made to obtain a complete copy of the Veteran's treatment records from the Atlanta VAMC dated from March 2000 to February 2003, May 2003 to March 2006, December 2009 to December 2010, and November 2012 to present. Notably, in obtaining these records the Board is particularly interested in a letter dated in 2002 or 2003 from the Veteran's VA Ear, Nose and Throat (ENT) doctor (Dr. F.N.) regarding her reported recurrent sinusitis infections. See Board Hearing Tr. at 12. III. Social Security Records A January 2007 VA treatment report indicates that the Veteran was then applying for Social Security Disability Insurance (SSDI). See January 30, 2007 VA treatment note. To date, however, a complete copy of the Veteran's Social Security Administration (SSA) records has not been associated with the claims file. In this regard, the Board notes that the possibility that records submitted in support of the Veteran's SSA claim contain evidence relevant to the Veteran's VA claim cannot be foreclosed absent a review of those records. As such, on remand, attempts should be made to obtain a complete copy of the Veteran's SSA records. See 38 U.S.C.A. § 5103A(b)(1) (West 2002); 38 C.F.R. § 3.159(c)(2) (2013); see also Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) (finding that as long as a reasonable possibility exists that SSA records may be relevant to a Veteran's claim, VA must assist him or her in obtaining the records); Murincsak v. Derwinski, 2 Vet. App. 363 (1992) (holding that VA's duty to assist includes obtaining records from SSA and giving them appropriate consideration and weight in determining whether to award or deny VA disability compensation benefits). IV. VA Examinations A. Sinus Disorder The Veteran essentially contends that service connection for a sinus disorder is warranted because she first began experiencing sinus infections and sinus symptoms during service, and has continued to have the same type of symptoms on a recurrent basis since. See Board Hearing Tr. at 9-12. In this regard, the Veteran has reported that, since separation from service, she has been required to treat her sinus disorder with medication (i.e., nasal sprays and rinses) in order to prevent recurrent sinus infections. See Board Hearing Tr. at 13. VA is obliged to provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent/recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2013). The Board finds that a VA examination assessing whether the Veteran has a sinus disorder that was caused by or incurred during her military service is warranted in this case. In making this determination, the Board notes that the Veteran's post-service treatment records reveal that in May 2006, the Veteran was diagnosed with chronic sinusitis; and in September 2008, she was noted to have requested a consultation for a sinus infection, which had since resolved. See May 31, 2006 letter from VA physician; September 16, 2008 VA treatment note. The record also reflects that she has been diagnosed with allergic rhinitis and seasonal allergies and/or obstruction. See May 31, 2006 letter from VA physician; VA treatment notes dated September 16, 2008; June 22, 2011; January 11, 2012; and October 3, 2012. Moreover, the record reflects that the Veteran has consistently been prescribed medication to treat her sinus/allergy symptoms. See, e.g., VA treatment records dated December 9, 2008; April 30, 3009; June 5, 2009; August 16, 2011; and January 11, 2012. As such, because the Veteran's post-service treatment records reflect that she has experienced recurrent sinus/allergy symptoms, the Board finds that the first McLendon element has been satisfied. Turning to the second McLendon element, the Veteran's service treatment records reveal that, at the time of her entrance examination in March 1988, she was found to have normal sinuses, with no history of sinusitis or ear, nose, or throat problems noted. See March 1988 entrance examination and report of medical history. Thereafter, she was diagnosed with and treated for sinus infections in October 1992 and August 1994. See service treatment records dated October 13, 1992; August 9, 1994; August 16, 1994; and August 24, 1994. The record also reflects that the Veteran was diagnosed with and treated for several upper respiratory infections during service. See service treatment records dated May 6, 1989; August 30, 1993; May 18, 1994; May 19, 1994; and February 23, 1996. These records also reflect that the Veteran underwent allergy testing in August 1994. See August 19, 1994 laboratory results. Finally, at her May 1996 separation examination, the Veteran was noted to have had three sinus infections during service, all of which had since resolved. See May 7, 1996 report of medical history. As such, because the record reflects that the Veteran was first diagnosed with and treated for sinusitis during service, the Board finds that the second McLendon element has also been satisfied. Turning to the third McLendon element, in a May 2006 letter, the VA physician who was treating the Veteran's sleep apnea noted that she had experienced allergic rhinitis and chronic sinusitis since her time in service. Moreover, the Veteran has reported experiencing recurrent sinus/allergy symptoms since service, which she treats with preventative care. See Board Hearing Tr. at 9-13. Accordingly, the Board finds that there is also evidence of record indicating that the Veteran's current sinus symptomatology may be associated with her military service, thereby satisfying the third McLendon element. Significantly, however, because there is insufficient medical evidence of record showing that the Veteran has a chronic sinus disorder that is causally related to her military service, the Board finds that a VA examination and medical opinion addressing the etiology of her recurrent sinus symptomatology is necessary for the Board to make a decision on this claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2013). B. Migraine Headaches The Veteran was initially granted service connection for migraine headaches in a July 1999 rating decision and was assigned a 10 percent disability rating, effective March 11, 1997. She submitted a claim for an increase in November 2007, and as noted above, in an October 2009 rating decision, the Veteran's disability rating for migraine headaches was increased to 30 percent, effective December 21, 2007. The Veteran disagrees with this rating assignment and contends that her migraine headache disorder warrants a higher evaluation. The Board finds that another VA examination assessing the current nature, extent, and severity of the Veteran's service-connected migraine headache disorder is necessary in this case. In making this determination, the Board acknowledges that the Veteran was last afforded a VA migraine headache examination in April 2009. Significantly, however, at her November 2012 Board hearing, the Veteran reported that the severity of her migraine headaches has increased since the April 2009 VA examination insofar as they have increased in length and frequency. See Board Hearing Tr. at 4-6, 8. In this regard, the Board notes that the most recent examination report of record is now more than four years old and does not contemplate the Veteran's recent contentions regarding the nature and severity of her symptomatology, or her additional treatment to date. Accordingly, given the complicated nature of the Veteran's disability picture, and because the record contains insufficient medical evidence to determine the current nature and severity of her migraine headache disorder, the Board finds that, on remand, another VA examination is necessary to resolve any inconsistencies in the record and to fully assess the current manifestations of the Veteran's migraine headache disorder. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007) (holding that when the record does not adequately reveal the current state of the claimant's disability, the statutory duty to assist requires a thorough and contemporaneous medical examination, which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one). Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran about (1) the information and evidence not of record that is necessary to substantiate her claim for a TDIU; (2) the information and evidence that VA will seek to obtain on her behalf; and (3) the information or evidence that she is expected to provide. A copy of this notification must be associated with the claims folder. Additionally, the Veteran should be asked to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain her relevant employment information. 2. Obtain all treatment records related to the Veteran's sinus disorder and migraine headache disorder from the Atlanta, Georgia VAMC dated from March 2000 to February 2003, May 2003 to March 2006, December 2009 to December 2010, and November 2012 to present. In obtaining these records, the Board is particularly interested in a letter dated in 2002 or 2003 from the Veteran's VA ENT doctor (Dr. F.N.) regarding her reported recurrent sinusitis infections. If such records are unavailable, the claims file should be clearly documented to that effect. 3. Make arrangements to obtain copies of all documents and/or evidentiary material pertaining to the Veteran's application(s) for SSA disability benefits. If such records are unavailable, the claims file should be clearly documented to that effect. 4. After the development requested in items (1) through (3) is completed, schedule the Veteran for a VA examination to determine the nature and etiology of any current sinus disorder. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA and Veterans Benefits Management System (VBMS) eFolders) should be made available to and be reviewed by the clinician, and it should be confirmed that such records were available for review. After conducting an examination of the Veteran and performing any clinically-indicated diagnostic testing, the examiner should identify any sinus disorders present. If a sinus disorder is identified, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability had its clinical onset during active service or is related to any in-service disease, event, or injury. In providing this opinion, the examiner's attention is directed to the Veteran's in-service treatment for sinus infections in October 1992 and August 1994, and her in-service treatment for upper respiratory infections in May 1989, August 1993, May 1994, and February 1996. Additionally, in providing this opinion, the examiner should reconcile his or her findings with the other medical evidence of record, including the May 2006 letter from the Veteran's VA sleep apnea doctor, which notes that the Veteran had experienced allergic rhinitis and chronic sinusitis since her time in service. A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 5. After the development requested in items (1) through (3) is completed, schedule the Veteran for an examination to assess the current nature, extent, and severity of her service-connected migraine headache disorder. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA and VBMS eFolders) should be made available to and be reviewed by the clinician, and it should be confirmed that such records were available for review. After conducting an examination of the Veteran and performing any clinically-indicated diagnostic testing, the examiner should indicate whether the Veteran experiences prostrating attacks of her migraine headaches, and if so, state the frequency of such attacks, specifically noting whether the Veteran experiences (1) characteristic prostrating attacks an average of once every two months over the last several months; (2) characteristic prostrating attacks an average of once a month over the last several months; or (3) very frequent, completely prostrating and prolonged attacks that are productive of severe economic inadaptability. Finally, the examiner should discuss the degree of occupational impairment attributable to the Veteran's service-connected migraine headache disorder. In particular, the examiner should describe what types of employment activities would be limited because of the Veteran's service-connected disability, what types of employment would not be limited (if any), and whether any limitation on employment is likely to be permanent. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 6. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal, to include whether a TDIU is warranted. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and her representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran 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 claim 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. 2013). _________________________________________________ NICOLE KLASSEN Acting 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) (2013).