Citation Nr: 1754229
Decision Date: 11/28/17 Archive Date: 12/07/17
DOCKET NO. 09-11 352 ) DATE
On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland
Entitlement to an initial rating in excess of 30 percent for benign paroxysmal positional vertigo (vertigo).
Veteran represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
J.T.Stallings, Associate Counsel
The Veteran served on active duty from November 1981 to September 2006.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2006 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Winston-Salem, North Carolina. The Veteran’s VA claim file has since been transferred to the RO in Baltimore, Maryland.
This appeal was previously remanded by the Board in March 2012 and again in February 2014. In a November 2014 Board decision, entitlement to an increased evaluation for Vertigo was denied.
The Veteran appealed the denial for increased rating claim to the U.S. Court of Appeals for Veterans Claims (Court). In August 2015, in a Joint Motion for Partial Remand (JMR), the parties indicated that the Board’s reasons and bases for the denial of extra-schedular consideration for her vertigo were inadequate because they failed to address additional symptomology of the Veteran.
The Board issued another decision in November 2015 again denying extraschedular consideration for the Veteran’s service-connected vertigo. The Veteran again appealed to the Court who issued a Memorandum Decision in June 2017 that vacated and remanded the Board’s decision on the same basis as the previous JMR.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
Although the Board regrets the additional delay, a remand is necessary to ensure proper development regarding the Veteran’s claim on appeal.
VA’s duty to assist includes obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012). The Veteran was provided a VA examination in April 2014 in connection with her increased rating claim for a rating in excess of 30 percent for vertigo, which is the highest rating allotted by Diagnostic Code 6204 under which the Veteran’s disability is rated. Therefore, the Veteran’s claim was treated as consideration of an extraschedular rating.
In the Court’s June 2017 Memorandum Decision, it noted that the Board did not fully address all of the evidence that could support the award of an extraschedular rating, such as evidence of additional symptomology that the Veteran reports she was experiencing or has experienced during the appeal period. The Veteran’s symptomology not specifically noted by the Board in the previous November 2015 decision included nausea, forgetfulness and headaches that were noted on a private examination in May 2009, as well as June 2012, October 2012 and January/February 2013 medical treatment notes. In order to best address this issue, the Board finds that additional clarity is needed from the examiner prior to re-adjudicating the claim.
Accordingly, the case is REMANDED for the following action:
1. If at all possible, request the same examiner who performed the April 2014 examination to review the record. If that examiner is not available, refer the Veteran’s file to one of equal expertise. The VBMS file, including a copy of this remand, must be made available to and be reviewed by the examiner. An additional examination should be given if necessary to address the requests of these directives.
The examiner is asked to provide explanations for the following questions with reference to relevant evidence of record as appropriate, for any and all conclusions reached:
a.) Is it at least as likely as not (i.e. a 50 percent probability or more) that the Veteran’s symptoms of nausea, forgetfulness and headaches (or possible vestibular migraines) are attributable to her service-connected benign paroxysmal positional vertigo? Why or why not? Please provide detailed rationale for each symptom.
b.) If any or all of these symptoms is attributable to the service-connected benign paroxysmal positional vertigo, is there a different diagnosis that would be better suiting of all of her symptomology? If so, please describe the diagnosis and the rationale, including reference to any evidence that was used to come to this conclusion.
The opinion should include addressing and reconciling any conflicting opinions within the claims file, particularly the May 2009 private examination report and October 2012 MRI report. See VBMS entry with document type “Medical Treatment Record – Non-Government Facility,” received 02/07/2013. (There are multiple entries with the same document type and the date received. The subject line provides information to point you in the direction of which entry in VBMS contains these documents.). See also VBMS entry with document type “Medical Treatment Record – Government Facility,” received 02/07/2013 at pg. 52.
If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made, such as insufficient knowledge or insufficient facts.
2. Then, readjudicate the Veteran’s claim on appeal. If the benefit sought remains denied, provide the Veteran with a supplemental statement of the case (SSOC).
The appellant has the right to submit additional evidence and argument on the matter 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 (2012).
A. P. SIMPSON
Veterans Law Judge, Board of Veterans’ Appeals
Under 38 U.S.C. § 7252 (2012), 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) (2017).