Citation Nr: 21064379 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 12-20 194 DATE: October 20, 2021 THE ISSUES 1. Entitlement to an increased disability rating for granulomatous ulceration of the left lateral surface of the internal nose, rated as noncompensable from June 1, 2007, to February 26, 2016, and rated as 20 percent disabling thereafter. 2. Entitlement to a total rating based on unemployability due to service-connected disability (TDIU). REMANDED Entitlement to an increased rating for granulomatous ulceration of the left lateral surface of the internal nose, rated as noncompensable from June 1, 2007, to February 26, 2016, and rated as 20 percent disabling thereafter is remanded. Entitlement to a TDIU is remanded. REASONS FOR REMAND The Veteran had active service from May 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in June 2015. A transcript of her hearing has been associated with the record. This matter was remanded by the Board in October 2015, August 2017, May 2018, May 2020, and April 2021. However, as will be discussed further below, the Board finds that an additional remand is needed for further development and adjudication. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). 1. Entitlement to an increased disability rating for granulomatous ulceration of the left lateral surface of the internal nose, rated as noncompensable from June 1, 2007, to February 26, 2016, and rated as 20 percent disabling thereafter. In August 2017, the Board directed the AOJ to schedule the Veteran for a VA examination to determine the severity of her service-connected granulomatous ulceration of the left lateral surface of the internal nose. Specifically, the Board remanded this matter to address the February 2016 VA examination and whether the Veteran's granulomatous rhinitis manifests in Wegener's granulomatous, lethal midline granuloma, or as other types of granulomatous infection, as rated by the schedular criteria under DC 6524. Therefore, upon remand, the Board requested a clarification of the Veteran's diagnoses. Upon remand, the Veteran was afforded a VA examination in November 2017. However, the Board found in its May 2018 decision that the VA examiner did not note such diagnoses, nor did the VA examiner discuss such February 2016 VA examination findings, as directed in the Board's August 2017 remand. See Stegall, 11 Vet. App. 268, 270-71 (1998) (holding that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand, and that the Board itself commits error as a matter of law in failing to ensure this compliance). The Board once more remanded this matter in order to obtain an addendum opinion in May 2018. In its May 2018 decision, the Board directed the AOJ to obtain an addendum opinion from the November 2017 VA examiner, or suitable substitute, which, in relevant part, addressed the February 2016 VA examination findings. Specifically, the Board noted that the February 2016 VA examiner found that "[f]or the VA established diagnosis of ulceration of the left lateral surface of the internal nose which is granulomatous, the diagnosis is changed and it is a new and separate diagnosis. Septal perforation with crusting this is what was present on the exam today. Atropic rhinitis from septal perforation." Additionally, the Board directed the examiner to "further state whether [the Veteran's] service-connected granulomatous rhinitis manifests as Wegener's granulomatous, lethal midline granuloma, or as other types of granulomatous infection." The Veteran was afforded an addendum opinion in August 2019 from a VA nurse practitioner. The examiner indicated that she "concur[ed] with [the February 2016 VA examiner], an established otolaryngologist, on the new diagnosis [of atrophic rhinitis from septal perforation]." When asked to address whether the Veteran's granulomatous rhinitis manifests as Wegener's granulomatosis, lethal midline granuloma, or as other types of granulomatous infection, the examiner explained that she was "not an expert in the field of otolaryngologist" and did not address whether the Veteran had these specific symptoms. In its May 2020 decision, the Board found that the examiner appeared not to have had the requisite expertise to adequately address the Board's May 2018 remand directives, and therefore the Board found that a remand is necessary to obtain medical opinions from an appropriately qualified examiner, specifically one with expertise in otolaryngology. See Stegall, 11 Vet. App. 268, 270-71 (1998). The Veteran was afforded a new VA examination with opinion in October 2020. The VA examiner confirmed a diagnosis of "septal perforation s/p failed surgical repair with residuals of septal perforation, atrophic rhinitis, epistaxis, sinusitis, and painful facial scar." This was noted to be a correction of the previous diagnosis of granulomatous ulceration of the left lateral surface of the internal nose. The examiner stated that the previous examinations in 2016, 2019, and 2020 established that the Veteran had "scabbing in the internal nares and no evidence of granulomatous ulceration of left lateral surface of internal nose without any further diagnostic testing such as biopsy." The report did not find that the Veteran's condition was granulomatous. However, the examiner did not address the findings of the February 2016 which described the Veteran's condition as granulomatous. Additionally, the October 2020 examiner identified herself as a nurse practitioner, but did not indicate expertise in otolaryngology as explicitly requested in the May 2020 Board remand directives. Hence, the Board remanded the matter once more in May 2020 in order to obtain an addendum opinion from an expert in otolaryngology. The Veteran was afforded an addendum opinion in June 2021 which found that the case file "did not show a nasal biopsy noting granulomas in the nose and the [case file] did not show evidence of Wegener's granulomatous, lethal midline granuloma, or as other types of granulomatous infection." The examiner addressed the February 2016 VA examination report and explained that marked the choice of "other granulomatous infection" and documented perforation with crusting," but clarified in a separate section that the Veteran had "atrophic rhinitis from septal perforation." Additionally, the examiner quoted UpToDate medical literature describing atrophic rhinitis. However, the examiner did not indicate an expertise in otolaryngology as explicitly requested in the May 2020 and April 2021 Board remand directives. Therefore, it remains unclear if the Veteran suffers from granulomatous rhinitis during the period on appeal and an additional remand is necessary in order to comply with the April 2021 remand directives. See Stegall, 11 Vet. App. 268, 270-71 (1998). 2. Entitlement to a TDIU. Additionally, in regard to TDIU, a request, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Veteran has attributed her inability to work to her service-connected disabilities, to include her service-connected granulomatous ulceration of the left lateral surface of the internal nose. Hence, the Veteran's claim for an increased disability rating for service-connected granulomatous ulceration of the left lateral surface of the internal nose includes consideration of whether a TDIU is warranted under the provisions of 38 C.F.R. § 4.16. Thus, the issue of entitlement to a TDIU is inextricably intertwined with the increased rating contained within this remand, and the Board defers ruling on this matter. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. Obtain any outstanding and relevant VA and/ or private treatment records. Should they exist, associate such with the electronic claims file. 2. Thereafter, return the claims file to the November 2017 VA examiner who performed the VA examination, or if the examiner is unavailable, to another suitably qualified examiner, specifically one with expertise in otolaryngology, and preferably and otolaryngologist. Such expertise should be documented in the report. The VA examiner is to provide an addendum VA medical opinion regarding the nature and severity of her service-connected connected granulomatous ulceration of the left lateral surface of the internal nose. If it is determined that another examination is needed to provide the required opinions, the Veteran must be afforded the appropriate VA examination. The examiner must note that the claims file was reviewed. After a review of the Veteran's claims folder, the examiner should address the following: (a) The findings of the February 2016 VA examination must be addressed, and the examiner is directed to indicate whether a new and separate diagnosis is appropriate, as indicated in the February 2016 VA examination report, or whether the Veteran's diagnosis is part and parcel with the Veteran's service-connected disability. The February 2016 VA examiner found that "[f]or the VA established diagnosis of ulceration of the left lateral surface of the internal nose which is granulomatous, the diagnosis is changed and it is a new and separate diagnosis. Septal perforation with crusting this is what was present on the exam today. Atropic rhinitis from septal perforation." Reconcile any discrepancies with the findings of the February 2016 VA examination report, which appears to record granulomatous rhinitis. (b) For any new and separate diagnosis, should such exist, the examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that such disorder is etiologically related to service or to a service-connected disability, including granulomatous ulceration of the left lateral surface of the internal nose, and / or whether it is as likely as not that such diagnosis is aggravated by a service-connected disability, to include granulomatous ulceration of the left lateral surface of the internal nose. A discussion of the complete rationale for all opinions expressed should be included in the examination report, to include reference to pertinent evidence where appropriate. (c) For all diagnoses identified, the examiner is directed to discuss the manifestations of the Veteran's diagnoses, to specifically include any such manifestations and symptomatology related to her service-connected granulomatous ulceration of the left lateral surface of the internal nose. Specifically, the examiner is to address the Veteran's asserted symptomology, as noted in her testimony before the Travel Board in June 2015. See June 2015 Travel Board hearing transcript. The examiner is to further state whether her service-connected granulomatous rhinitis manifests as Wegener's granulomatous, lethal midline granuloma, or as other types of granulomatous infection. To the extent possible, the examiner should distinguish between the symptoms associated with the Veteran's service-connected granulomatous ulceration of the left lateral surface of the internal nose, as opposed to other respiratory disabilities for which she in receipt of service connection. (d) Last, describe the impact of the Veteran's service-connected disabilities, to include her service-connected granulomatous ulceration of the left lateral surface of the internal nose, allergic rhinitis, painful facial scar, and sinusitis, on her ability to secure or follow a substantially gainful occupation consistent with his education and occupational experience at that time. The examiner should provide findings and a complete rationale for all opinions and conclusions reached. If the examiner determines that an opinion or conclusion cannot be made without resort to mere speculation, the clinician should explain why. In other words, simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why this is so. 3. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.