Citation Nr: 1624920 Decision Date: 06/21/16 Archive Date: 07/11/16 DOCKET NO. 10-07 026 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for sinusitis. 2. Entitlement to an increased disability rating for service-connected residuals of left Achilles tendon surgery, currently rated as 10 percent disabling prior to January 13, 2014 and as 20 percent disabling from January 13, 2014. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disorders (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Nye, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1975 to July 1978, August 1987 to August 1992 and from February 2003 to May 2004. Between July 1993 and March 1999, he served in the Army National Guard. This case comes to the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In its decision, the RO denied service connection for sinusitis and also denied an increased rating for residuals of a service-connected Achilles tendon surgery. The Veteran appealed both rulings. After further proceedings, the Board determined that the issue of TDIU was raised as part of the increased rating claim. The Board remanded these claims for further development in June 2011 and November 2012. For the reasons below, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board most recently remanded this case for further development in November 2012. Among other things, the AOJ was instructed that copies "of the medical records from all sources, including VA records, (not already in the claims file) should . . . be requested." It is not clear whether copies the Veteran's most recent VA treatment records have been obtained and associated with the claims file. The most recent supplemental statement of the case, issued in March 2014, includes a list of the evidence which the AOJ reviewed before the most recent adjudication of the issues in this appeal. One item on this list indicates the review of treatment records from Gainesville VA Medical Center between December 9, 2008 and December 20, 2013. Some VA treatment records within this period are quoted in the most recent post-remand VA examination reports. For example, a January 2014 Larynx and Pharynx VA disability benefits questionnaire quotes a CT report dated December 20, 2013 from a VA Medical Center, showing normal dural and paranasal sinuses. But the claims file also includes a statement from the Veteran, which indicates that he visited the emergency room at a VA Medical Center on December 20, 2013. Other than the quoted CT report, the claims file includes no treatment records about this visit, i.e., there is no description of the Veteran's complaints, no summary of his symptoms on examination, and no notes from the medical personnel who treated him. The most recent document consisting solely of records of VA medical treatment- as opposed to examination reports which occasionally quote portions of the Veteran's VA treatment records - is dated February 2010. Because the record indicates that potentially relevant VA treatment records exist which are not part of the Veteran's claims file, this case must be remanded to obtain the outstanding records. See 38 C.F.R. § 3.159(c)(2) (2015). A remand is also required to ensure compliance with the Board's previous remand order to obtain VA records. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). For assistance in deciding whether the Veteran has a current service-connected disability of the sinuses, the AOJ arranged for him to be examined by a physician in January 2014. According to the examiner, the Veteran does not currently have sinusitis. This conclusion, he explained, was consistent with the CT scan mentioned above and with sinus x-rays dated September 2010. The examiner wrote that, during the pendency of the claim, the Veteran had allergic rhinitis, but he further indicated that allergic rhinitis did not develop until 2009, after his separation from service. The available post-service treatment records include a CT scan report dated February 2008, which indicates chronic sinusitis. This report reflects the Veteran's sinus condition after he filed his pending claim for service connection for a sinus disorder in June 2007. The AOJ most recently denied the Veteran's claim based on the VA examiner's conclusion that he had no current disability of the sinuses. However, the presence of a disability at the time of the filing of a claim or during its pendency is sufficient to meet the current disability requirement of a claim for service connection, even if the disability resolves before the Board's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The January 2014 VA examination report did not discuss the February 2008 CT report indicating chronic sinusitis. Under these circumstances, the AOJ should obtain an addendum report from the January 2014 VA examiner on the issue of whether the chronic sinusitis reported in February 2008 had its onset in service or is otherwise related to any in-service disease, injury or event. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims folder copies of all records of the Veteran's VA treatment since February 2010. 2. Obtain an addendum opinion from the physician who performed the January 2014 VA larynx and pharynx examination. If for any reason the examiner is not available, the requested opinion should be obtained from another qualified person. If it is necessary, another examination should be arranged. The examiner should be provided with copies of the Veteran's entire VA claims file, including electronic and any paper records. Most importantly, the examiner should be provided with a copy of the CT report dated February 11, 2008, which indicates the presence of chronic maxillary sinusitis. After reviewing the records, the examiner should indicate whether it is at least as likely as not (50 percent or more probability) that the Veteran has a current sinus disability. For the purpose of this claim for disability benefits, the examiner is advised that a current disability is any disability which existed when the Veteran filed his claim (June 2007) or any time during the pendency of the claim. If the examiner indicates that the Veteran has sinusitis or had sinusitis during the pendency of the claim, the examiner should further indicate whether it is at least as likely as not (50 percent or more probability) that the Veteran's claimed sinusitis had its onset during active duty service or is otherwise related to service. A complete rationale should be provided for all opinions. 3. After the above development has been completed, readjudicate the claims for service connection for sinusitis, increased rating for service-connected residuals of Achilles tendon surgery and TDIU. If any benefit sought on appeal remains denied, furnish the Veteran and his representative with a supplemental statement of the case and return the case to the Board. 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. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ T. MAINELLI 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).