Citation Nr: 1749040 Decision Date: 10/31/17 Archive Date: 11/06/17 DOCKET NO. 11-31 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a rating in excess of 10 percent for chronic rhinitis. 2. Entitlement to a rating in excess of 20 percent for the residual of a left distal fibular spiral fracture with traumatic arthritis (left ankle disability). 3. Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Douglas E. Sullivan, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Griffin, Counsel INTRODUCTION The Veteran had active service from May 1978 to March 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2008, July 2010, August 2017, and October 2017 decisions of the Atlanta, Georgia, Regional Office. The Board finds that it properly has jurisdiction over the Veteran's claim seeking entitlement to a TDIU, reasonably raised by his many statements that he is unemployed due to service-connected disabilities, and has included such claim on the title page. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In August 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) and a transcript of the proceeding is of record. The Board previously remanded the appeal in December 2015. In an August 2017 administrative decision, the RO determined that the Veteran had not perfected timely appellate review, regarding the denial of his service connection claim for left leg shortening in August 2015. The Veteran filed an August 2017 VA Notice of Disagreement Form (NOD) with this determination. In an October 2017 decision, the RO denied service connection claims for a left hip disability, a left heel disability, and left foot pes planus, as well declining to reopen a low back disability service connection claim. The Veteran filed an October 2017 NOD with these determinations. Note: This decision also declined to reopen a service connection claim for left leg shortening. The aforementioned NOD also pertained to this the issue of whether new and material evidence has been received to reopen the service connection claim for left leg shortening; however, the Board will refrain addressing the issue until a determination regarding whether the Veteran perfected timely appellate review as to this matter, discussed above. The RO has yet to issue an appropriate Statement of the Case (SOC) in response to the August 2017 and October 2017 NODs but as these NODs are under active consideration by the RO the Board declines jurisdiction of them at this time. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Board finds there is not sufficient medical evidence to evaluate properly the Veteran's allergic rhinitis claim. The September 2008 VA examination report appears to be internally inconsistent, reporting in one section that nasal polyps were present but stating such were not present in another section. Further, the May 2016 VA examination does not detail the disability in sufficient detail regarding the nature, extent, and severity of the Veteran's service-connected disability to consider the applicability of other diagnostic codes. Thus, the appeal must be remanded to obtain addition medical examination and opinions. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Colvin v. Derwinski, 1 Vet. App. 171, 172 (1991). The Board finds that the December 2016 VA examination, and respective November 2016 and January 2015 Disability Benefits Questionnaires report findings do not meet the specifications of Correia v. McDonald, 28 Vet. App. 158 (2016), because the left ankle range of motion findings do not provide a clear indication of the range of motion findings on active versus passive motion nor range of motion findings in weight-bearing and nonweight-bearing. Id. Thus, the Board must remand the appeal to provide the Veteran an adequate and contemporaneous examination to assess the current nature, extent and severity of his left ankle disability consistent with Correia. See 38 C.F.R. § 3.159(c)(4) (2016). The record suggests the Veteran receives regular VA allergic rhinitis and left ankle treatment, but records dated since April 2016 have not been associated with the claims folder. Additionally, aside from selective records submitted by the Veteran, the claims folder does not document sufficient attempts to obtain relevant and reasonably identified private treatment records generated since the most recent February 2017 Supplemental Statement of the Case. See 38 U.S.C.A. § 5103A (West 2015); 38 C.F.R. § 3.159(c) (2016). On remand, attempts to obtain these records must be undertaken. Finally, given Rice and the remand of the allergic rhinitis, and left ankle disability claims discussed above, the TDIU claim must be remanded because the claims are inextricably intertwined and must be considered together. Thus, a decision by the Board on the TDIU claims would, at this point be premature. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009). Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran with appropriate notice of the evidence and information needed to establish entitlement to a TDIU, and VA's and the Veteran's responsibilities to provide evidence and information in support of a TDIU claim, which the record has raised. The Veteran should be provided an appropriate amount of time to respond to this notification. 2. Contact the Veteran to identify all sources of private allergic rhinitis and left ankle treatment, hospitalization or evaluation, since February 2017 to the present. Then, undertake all necessary efforts to obtain any identified private treatment records. Obtain all outstanding VA allergic rhinitis and left ankle treatment or hospitalization records, dated April 2016 to the present. Any negative response(s) must be in writing and associated with the claims folder. All efforts to obtain these records should be documented. 3. After receipt of all additional records, schedule the Veteran for a VA examination to ascertain the current severity and manifestations of the Veteran's service-connected allergic rhinitis examination. The claims file should be made available to the examiner for review in connection with the examination. The examiner must assess the allergic rhinitis and offer an opinion as the severity and manifestation of the disorder, to include whether there are polyps present and whether there is any obstruction of the nasal passage. If obstruction is found, the examiner should record the percentage of such obstruction and whether the blockage occurs on one or both sides of the nasal passage. The examiner should also comment on the functional impairment caused by the Veteran's allergic rhinitis. Thereafter, the examiner should state the impact of the diagnosed allergic rhinitis disability(ies) on the Veteran's ability to obtain and maintain any gainful employment (consistent with his education and occupational experience). The provided examination report must reflect consideration of both the medical and lay evidence of record and set forth a complete rationale for all findings and conclusions. All tests deemed necessary by the examiner must be performed. 4. After receipt of all additional records, schedule the Veteran for a VA examination to ascertain the current severity and manifestations of the Veteran's service-connected left ankle disability. The claims file should be made available to the examiner for review in connection with the examination. The examiner should provide findings as to range of motion. If ankylosis is present, please so note. Additionally, the examiner must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. • Compare range of motion with opposite undamaged joint if possible. The examiner should indicate whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the right shoulder is used repeatedly over a period of time. Such determinations should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. The examiner should specifically indicate whether, and at what point during, the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES' SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Thereafter, the examiner should state the impact of the diagnosed left ankle disability(ies) on the Veteran's ability to obtain and maintain any gainful employment (consistent with his education and occupational experience). The provided examination report must reflect consideration of both the medical and lay evidence of record and set forth a complete rationale for all findings and conclusions. All tests deemed necessary by the examiner must be performed. 5. After completing the above and ensuring the VA examinations are adequate, complete any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs. 6. Then, the Veteran's claims must be readjudicated, including the TDIU claim, based on the entirety of the evidence of record. If a claim remains denied, the Veteran should be issued a Supplemental Statement of the Case, and the appeal returned for appellate review. An appropriate period of time should be allowed for response. 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. 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). _________________________________________________ M. H. HAWLEY 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) (2016).