Citation Nr: 21007407 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 05-16 639 DATE: February 9, 2021 REMANDED Entitlement to a rating in excess of 10 percent for allergic rhinosinusitis with left anthropolypoid sinusitis is remanded. REASONS FOR REMAND The Veteran had active service with the Army from December 1960 to November 1962. This matter is on appeal to the Board of Veterans’ Appeals (the Board) from a December 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the issue of a higher rating for chronic gastritis with gastrinoma was remanded by the Board. The Agency of Original Jurisdiction (AOJ) is still working on this issue, and it has not been recertified to the Board. This claim will therefore be the subject of a future Board decision if necessary. In January 2009, the Board denied the Veteran’s increased rating claim for allergic rhinosinusitis. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (the Court). In a December 2009 order, the Court vacated the January 2009 Board decision and remanded the matter for readjudication. The record contained documents written in Spanish that were not translated. In January 2011, the Board again denied the increased rating claim for his service-connected allergic rhinosinusitis. The Veteran again appealed this decision to the Court. In a February 2012 order, the Court vacated the January 2011 decision regarding the allergic rhinosinusitis claim and remanded the matter for readjudication. The Court determined that the Board failed to provide an adequate statement of reasons and bases. In September 2012, the Board remanded the issue for additional development including a VA examination. The claim returned to the Board in December 2016. The Veteran argued through his representative that the March 2015 VA examination was inadequate because it failed to consider the Veteran’s reported symptoms. The Board found the March 2015 examination inadequate because it failed to consider the Veteran’s reported symptoms and to clearly indicate whether he had incapacitating or non-incapacitating episodes of sinusitis in 12 month increments throughout the appeal period. The claim was remanded for additional development and a new VA examination to determine the current severity of his allergic rhinosinusitis. The examiner was asked to specifically consider the Veteran’s self-reported history, to describe the number (if any) of incapacitating and/or non-incapacitating episodes of sinusitis per year, and to comment on his complaints of vision trouble associated with his allergic rhinosinusitis. The claim now returns to the Board. However, additional development is necessary prior to final adjudication of the increased rating claim for allergic rhinosinusitis on appeal. The Veteran’s VA treatment records note dual care for his chronic rhinosinusitis with the following private providers: Dr. H.L.M.F. and Dr. R.G. The September 2012 remand requested additional development of the record and specifically noted treatment records from Dr. H.L.M.F, an internist with the Caribbean Medical Center. At that time, the record contained a June 2012 note from Dr. H.L.M.F. that he was treating the Veteran for chronic sinusitis. Records were received from the VA Caribbean Healthcare System but not the Caribbean Medical Center. In January 2014, the Veteran’s VA treatment records noted that he sought out private care after he refused recommended surgery. He saw Dr. R.G., a private ENT. He returned to the VA because the antibiotics prescribed by Dr. R.G. were too expensive. The Veteran’s June 2014 statement confirmed that he sought out Dr. R.G., who prescribed a stronger antibiotic for his sinusitis. However, he could not afford the prescription. The evidence of record shows that the Veteran has been receiving private medical treatment in conjunction with his VA care. Treatment records from these providers have not been associated with the claims folder. Therefore, on remand the RO should attempt to obtain and associate these records with the claims file. The Veteran should be provided the opportunity to complete a VA Form 21-4142 to authorize the release of information from the private medical providers he identifies. The Board notes that the Veteran was last afforded a VA examination for his allergic rhinosinusitis almost four years ago. During the May 2017 VA examination, he continued to report sinus congestion, sneezing, runny nose, headaches, and tenderness of the affected sinus. The examiner found no incapacitating or non-incapacitating episodes of sinusitis over the past 12 months. His rhinitis resulted in permanent hypertrophy but there was no evidence of either partial or complete obstruction of the nasal passage on either side. The examiner found his allergic rhinitis had no impact on his ability to work. The examination did not substantially comply with December 2016 Board remand per Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the examiner failed to address complaints of symptoms in the evidence of record. For example, he reported in March 2005 he had more than 15 episodes of non-disabling sinusitis with severe headache, pain, and continuous discharge of mucous per year. In June 2014, he reported constant headache pain, painful congestion, and daily nasal discharge. He reported two episodes per month with pain so severe that he could not speak to anyone. The examiner did not address the number of incapacitating or non-incapacitating episodes of sinusitis per year throughout the appeal period. She only addressed episodes in the past 12 months. Finally, the examiner failed to address whether his complaints of vision trouble were associated with his allergic rhinosinusitis. The Board notes that another examination was requested in April 2020 to assess the Veteran’s allergic rhinosinusitis claim. The RO found the May 2017 VA examiner did not provide a medical opinion as instructed in the December 2016 remand. When a veteran fails without good cause to report for a necessary VA examination requested by the VA in conjunction with a claim for increased compensation, the claim will be denied. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655(a), (b). In this instance, the Board finds that good cause for the Veteran's failure to report for his VA examination has been shown. A disability benefits questionnaire (DBQ) was requested in April 2020 to assess the Veteran’s increased rating claim for allergic rhinosinusitis. In November 2020, the examination was canceled at the Veteran’s request. He indicated he was in Puerto Rico and no return date was provided. A subsequent development letter was sent noting he declined scheduling his allergic rhinosinusitis examination due to his relocation back to Puerto Rico and that he should reach out to the National Call Center to explore other options for getting his examination completed. In December 2020, the RO issued a supplemental statement of the case (SSOC) finding no good cause for his failure to report to the examination. On the same day the SSOC was issued the Veteran reached out about his pending examinations. He reported he was in Puerto Rico and would stay there until “the current situation” got better. He requested his examinations be scheduled at a facility in Puerto Rico. He indicated he was not relocating to Puerto Rico because he planned to return home once the current situation had improved. Therefore, he did not wish to change his mailing address on file. Due to the difficulties regarding the scheduling of examinations during the Covid-19 pandemic, the Board concludes that every reasonable effort should be made to schedule another examination at a VA facility in Puerto Rico (in coordination with the Puerto Rico RO, if necessary). The matter is REMANDED for the following actions: 1. Provide the Veteran a VA Form 21-4142. Request that he identify all non-VA health care providers including the name and address who have treated him during the pendency of this appeal. If the Veteran identifies a private provider, make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. Obtain and associate all other outstanding VA and non-VA treatment records with the claims file. 2. Once the above development has been completed, every reasonable effort should be made to schedule the Veteran for an examination of his allergic rhinosinusitis with left anthropolypoid sinusitis at a VA facility (in Puerto Rico in coordination with the Puerto Rico RO, if necessary.) If for any reason the examination cannot be performed at a VA facility in Puerto Rico this should be explained and documented in the record. The claims file should be forwarded to an appropriately qualified clinician. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. The examination report must include a notation that this record review took place. The examiner should describe the severity of the Veteran’s sinusitis, specifically the number (if any) of incapacitating episodes per year, which require prolonged antibiotic treatment (lasting four to six weeks); or the number (if any) of non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The examiner should comment on whether the Veteran’s complaints of vision trouble are associated with his allergic rhinosinusitis. 3. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran and his representative should be furnished with a supplement statement of the case and afforded the opportunity to respond. Thereafter, the case should be returned to the Board for further consideration. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.L. Byers 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.