Citation Nr: 21077238 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 20-25 194 DATE: December 29, 2021 REMANDED The claim of entitlement to a rating higher than 10 percent prior to May 17, 2016, and higher than 30 percent since, for chronic sinusitis with headaches is remanded. Entitlement to a total disability based on individual unemployability (TDIU) also is remanded for extra-schedular consideration. REASONS FOR REMAND The Veteran served on active duty from November 1943 to January 1946, so during World War II. This appeal was last before this Board in July 2020 and March 2021, but the claims were remanded back to the local Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ), for further development and consideration. Regrettably, the Board must again remand these claims. 1. The claim of entitlement to a rating higher than 10 percent prior to May 17, 2016, and higher than 30 percent since, for chronic sinusitis with headaches is again remanded. 2. The claim of entitlement to a TDIU also is again remanded. As an initial matter, during an October 2016 VA examination, the examiner noted that the Veteran was unable to work due to his eye disability and age. So, in the prior July 2020 remand, the Board explained that the issue of entitlement to a TDIU had been raised by the evidence of record since derivative of the claim for higher ratings for the eye disability (left eye nerve damage with exotropia). See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In addition, the Board observes that the Veteran also submitted a VA Form 21-8940, TDIU Application, in February 2021. And a local Regional Office (RO) decision since issued, in April 2021, increased the rating for the eye disability from 10 to 30 percent as of February 12, 2021. By way of other relevant history, that claim concerning the ratings for the eye disability and the claim regarding the then noncompensable (0 percent) rating for the chronic sinusitis with allergic rhinitis and headaches were remanded by the Board in January 2019 for issuance of a Statement of the Case (SOC) concerning these claims. Thereafter, the Veteran submitted a statement related to his sinusitis in February 2019, along with a Disability Benefits Questionnaire (DBQ) from a private treatment provider. In an April 2020 rating decision, a higher 10 evaluation was assigned as of November 17, 2010 and an even higher 30 percent rating as of May 17, 2016. He then submitted a VA Form 9, Substantive Appeal to this Board, in May 2020 completing the steps necessary to "perfect" his appeal regarding the ratings for his left eye condition. The additional issue of his entitlement to higher ratings for his sinusitis conversely was not appealed on that VA Form 9. But an SOC had not been issued during that time regarding the rating for his sinusitis, and he submitted an additional affidavit in May 2020 concerning both his eye condition and sinusitis. In July 2020, the Board denied an initial rating higher than 0 percent (so a compensable rating) prior to April 19, 2017, and a rating higher than 10 percent since, for the Veteran's left eye disability meaning that claim is no longer on appeal. However, the Board also specifically pointed out that an SOC had not been issued, as directed, concerning the Veteran's claim for higher ratings for his chronic sinusitis with allergic rhinitis and headaches. Consequently, the Board remanded this claim so the AOJ could provide him an SOC concerning this claim and to then give him opportunity in response to submit a timely Substantive Appeal (VA Form 9 or written equivalent) to complete the steps necessary to "perfect" his appeal of this claim to this Board. See Manlincon v. West, 12 Vet. App. 238 (1999); 38 C.F.R. § 20.200 (2018). The Board also remanded the derivative TDIU claim so it could be referred to the Director of the Compensation Service for extra-schedular consideration under the special provisions of 38 C.F.R. § 4.16(b). In September 2020, to this end, the AOJ issued an SOC for the Veteran's sinusitis claim. A notification cover letter and copy of that SOC was mailed to him and his representative at their addresses of record; however, on October 1, 2020, the United States Postal Service returned those mailings since undeliverable; there was a notation of "return to sender, unable to forward". Notification letters regarding this appeal's recertification to the Board's docket also were returned as undeliverable. Apparently, the AOJ and the Veteran's representative did not become aware of the incorrect mailing address that was used until February 2021, and no prior communication was received from the representative regarding either claim. Accordingly, in a subsequent March 2021 remand, the Board found that the Veteran and his representative had not received proper notice. See 38 C.F.R. § 19.30. So the claims again were remanded back to the AOJ to issue an SOC concerning the claim for higher ratings for the chronic sinusitis with allergic rhinitis and headaches, to provide the Veteran opportunity in response to file a timely Substantive Appeal (VA Form 9 or equivalent) concerning this claim, and to take all steps necessary to develop his derivative TDIU claim. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.26, 20.202; See Manlincon, 12 Vet. App. 238 (1999). Still to date, however, it does not appear the Veteran and his representative have been provided the required SOC concerning this claim so that they, in response, also are provided opportunity to file a timely Substantive Appeal to complete the steps necessary to "perfect" their appeal of this claim to this Board. Therefore, the AOJ is again directed to confirm the Veteran's current mailing address and issue an SOC regarding his claim of entitlement to higher ratings for his chronic sinusitis with headaches (during the pendency of this appeal he has been granted a separate 10 percent rating for his allergic rhinitis). As for his derivative TDIU claim, the Board sees that a Supplemental SOC (SSOC) was issued in October 2021 and appears to have been received, so not returned as undeliverable. In that SSOC, the AOJ declined to refer this claim to the Director of the Compensation Service for extra-schedular consideration under the special provisions of 38 C.F.R. § 4.16(b), despite the Board already having concluded in a prior remand that this referral is warranted. Thus, in refusing to do this referral, there was not compliance with this prior remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As the Board previously explained, the Veteran's service-connected disabilities do not meet the threshold minimum schedular rating requirements for a TDIU according to 38 C.F.R. § 4.16(a). For the rating period under review, he has had a 10 percent rating for his chronic sinusitis with headaches as of November 17, 2010 and a higher 30 percent rating since May 17, 2016. He also has had a 0 percent rating for his left eye disability as of May 19, 2011, a 10 percent rating as of April 19, 2017, and a 30 percent rating since February 12, 2021. As well, as mentioned, he has had an additional 10 percent rating for his allergic rhinitis since November 17, 2010. Thus, at most, he has had a 60 percent combined rating, so less than the requisite 70 percent combined rating when, as here, there is more than one service-connected disability and not a situation where, for all intents and purposes, there is a permissible exception allowing the adjudicator to consider the disabilities as one, collective disability. 38 C.F.R. § 4.16(a). Thus, a TDIU only may be granted, instead, on an extra-schedular basis under the special provisions of 38 C.F.R. § 4.16(b). Although entitlement to an extra-schedular TDIU is determined in the first instance by the Director of the Compensation Service, the AOJ and this Board are tasked with making the threshold determination of whether referral to the Director for extra-schedular consideration is appropriate. This threshold determination must be supported with "a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue." 38 C.F.R. § 4.16(b). In the report of the October 2016 VA examination, the examiner marked "yes" that the Veteran's eye disability impacts his ability to work. As rationale, the examiner stated that the Veteran is unable to work due to his eye disability, frail condition, and age. In the report of the more recent April 2017 VA examination, the examiner again marked "yes" that the Veteran's eye disability impacts his ability to work. The examiner observed the Veteran previously had worked as a truck driver but could no longer safely operate a motor vehicle and, therefore, could not continue working at that job. In addition, his reading ability is severely limited. According to the October 2021 SSOC, in declining to refer this derivative TDIU claim to the Director of the Compensation Service for extra-schedular consideration under § 4.16(b), the AOJ cited vision impairment the Veteran also has in his right eye (i.e., non-service-connected eye) and concluded that the schedular ratings for his service-connected disabilities contemplate their functional impact. 38 C.F.R. §§ 4.1, 4.15. But the VA examination reports mentioned talked about the vision impairment in both eyes, so including in the service-connected left eye as well. Moreover, the Veteran more recently underwent additional VA examinations in March and April 2021, and these examiners, like the others prior, indicated he has a significant decrease in visual acuity (including in his service-connected left eye) that would make it difficult for him to drive a truck and complete paperwork. The March 2020 examiner also indicated the Veteran has mobility issues and difficulty with orientation owing to his vision impairment, which would also contribute to his inability to work. Under these circumstances, this derivative TDIU claim must be referred to the Director of the Compensation Service for extra-schedular consideration under the special provisions of § 4.16(b), particularly to comply with the Board's prior July 2020 remand directive. Accordingly, these claims are REMANDED for the following action: 1. Provide the Veteran and his representative an SOC addressing the issue of entitlement to increased ratings for the chronic sinusitis with headaches, also regarding the separate rating for the allergic rhinitis, and ensure it is sent to the appropriate addresses for both the Veteran and his representative. 2. Advise the Veteran of the procedural requirements for completing the steps necessary to "perfect" the appeal of this claim to the Board especially in terms of still needing to file a Substantive Appeal (VA Form 9 or written equivalent) in response to the SOC. If a Substantive Appeal is timely filed in response to the SOC, certify this claim to the Board. 3. Refer the Veteran's derivative TDIU claim to the Director of the Compensation Service for consideration of entitlement to this benefit on an extra-schedular basis under the special provisions of 38 C.F.R. § 4.16(b). This referral is mandatory, not discretionary. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. B. Kucera 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.