Citation Nr: 1618488 Decision Date: 05/09/16 Archive Date: 05/19/16 DOCKET NO. 09-47 558 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased rating for chronic sinusitis, currently evaluated as 10 percent disabling. 2. Entitlement to a compensable rating for chronic allergic rhinitis. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Marcus J. Colicelli, Associate Counsel INTRODUCTION The Veteran served for twenty years on active service from January 1978 to August 1984, and from January 1985 to May 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran filed a notice of disagreement (NOD) in November 2008, and the RO issued a statement of the case (SOC) in October 2009. The Veteran perfected his appeal of the issues with the timely filing of a VA Form 9 (substantive appeal) in December 2009. In October 2009, the RO increased the disability evaluation to 10 percent for chronic sinusitis, effective the date of claim on June 28, 2007. Because higher evaluations are available for chronic sinusitis, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). As identified in the Board's July 2013 Remand decision, in the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans' Claims (Court) held, in substance, that every claim for a higher evaluation includes a claim for TDIU where the Veteran claims that his service-connected disabilities prevent him from working. In this case, the Board observes that the Veteran has put forth statements indicating his belief that his service-connected disabilities, to include the disabilities currently on appeal, render him unemployable. Accordingly, in light of the holding in Rice, the Board has characterized the issues on appeal so as to include a claim for entitlement to TDIU. The Board notes this appeal originally included entitlement to service connection for sleep apnea (claimed as sleep apnea and narcolepsy); however, that issue was granted in an October 2013 rating decision, and as such, is no longer on appeal. As a final preliminary matter, the Board notes that, in addition to the paper claims file, the Veteran also has electronic Virtual VA and Veteran Benefits Management System (VBMS) paperless claims files. In July 2013, the Board remanded this claim for additional development. The appeal is again REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran seeks entitlement to an increased rating in excess of 10 percent disabling for his sinusitis, and for a compensable rating for his rhinitis. The Veteran is also seeking entitlement to TDIU, due in part to these service-connected conditions. Unfortunately, another remand is required. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Sinusitis & Rhinitis The Veteran last was afforded a VA examination for his sinusitis and rhinitis in September 2013. See September 2013 VA examination. When available evidence is too old for an adequate evaluation of the Veteran's current condition, VA's duty to assist includes providing a new examination. See Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Veteran has asserted that his disabilities have worsened since his most recent VA evaluations. See September 2015 Appellant's Post-Remand Brief ("The appellant contends his chronic sinusitis and rhinitis have worsened since the August 28, 2013, VA examination"). Moreover, updated records obtained upon remand appear to corroborate the contentions of the Veteran and his representative. See December 2013 Primary Care Outpatient Note ("Patient continues to have issues with chronic sinus infections; patient would like an antibiotic today...nasal congestion; peri-orbital tenderness"). As there may have been material changes in the Veteran's conditions, the Board finds that new examinations are needed, in order to evaluate fully and fairly the Veteran's increased rating claims for sinusitis and rhinitis. Allday v. Brown, 7 Vet. App. 517 (1995) (finding that, where the record does not adequately reveal current state of disability, fulfillment of duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). TDIU A remand is necessary for the issue of entitlement to a TDIU. The issue was previously remanded for the purpose of clarifying the Veteran's unemployment background, and in order to obtain an opinion as to the effects of the service-connected disabilities upon the Veteran's ordinary activities. The record is currently unclear as to the Veteran's employment and educational history. As noted in the July 2013 remand decision, a May 2008 VA examination reflects that the Veteran was employed full-time in sales, and that the duration of his current employment was one-to-two years. Prior to that, in August 2007, the Veteran stated that he had not been employed for the past five years; and last worked full-time in February 2002. The records show that he completed four years of college, and has had additional training in air conditioning and refrigeration, electricity, and in engineering and construction during his active service. In light of the foregoing, clarification is required prior to the adjudication of a claim for TDIU. The Veteran should be provided Veterans Claims Assistance Act of 2000 (VCAA) notice regarding the information and evidence necessary to substantiate a TDIU claim and be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). The AOJ also should conduct any additional development deemed necessary for the adjudication of such claim. Moreover, the September 2013 VA examination reports for the Veteran's sinusitis, rhinitis, and sleep apnea indicate that the service-connected disabilities may have an impact his ability to work. However, the rationales provided for these conclusions were incomplete and require additional clarification. As to each of these three disabilities, the examiner commented that the Veteran "can do light duty," without providing any further detail as to the effects of his service-connected condition upon his ordinary activity. Hence, a remand is warranted. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file all updated treatment records. 2. Provide the Veteran with notice in compliance with the VCAA that informs him of what evidence he must show to support a claim for TDIU. He should also be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits). Each executed form should be returned to VA. 3. Afford the Veteran a VA examination to determine the nature and severity of the chronic sinusitis and chronic allergic rhinitis. All appropriate tests, including x-rays, should be conducted. The examiner should comment as to the presence, absence, and/or extent of nasal polyps and nasal passage obstruction. The examiner is asked to provide a full description of the effects of the service-connected disabilities upon the Veteran's ordinary activities. Based on the clinical examination, review of the evidence of record, and the Veteran's lay statements, the examiner is asked to comment on the functional impairment caused solely by the service connected disabilities, alone or acting in concert. 4. After development has been completed, review the file and ensure that all development sought in this REMAND is completed. Arrange for any further development indicated by the results of the development requested above. Then, re-adjudicate issues on appeal, including a TDIU. If the benefits sought on appeal remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. 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 2014). _________________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).