Citation Nr: 1311056 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 06-27 752 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial disability evaluation in excess of 10 percent for service-connected syncope due to subdural hematoma. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran had active service from June 1958 to August 1961. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Board remanded the claim in May 2012 so that additional development of the evidence could be conducted. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran contends that the residuals of his service-connected subdural hematoma are more severe than currently rated. Specifically, he asserts that he continues to pass out and experience vertigo. See April 2005 notice of disagreement. In the rating action on appeal, the RO noted that the Veteran suffered a head injury in an August 1960 motor vehicle accident. Although he apparently did not experience a loss of consciousness immediately, he "passed out" several days later and was ultimately diagnosed with a subdural hematoma. Service connection was granted and an initial 10 percent rating assigned under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8009. Under that DC, the disability is rated on residuals, with 10 percent as the minimum rating. According to the Note to DC 8009, determinations as to the presence of residuals not capable of objective verification must be approached on the basis of the diagnosis recorded; subjective residuals will be accepted when consistent with the disease and not more likely attributable to other disease or no disease. It is of exceptional importance that when ratings in excess of the prescribed minimum ratings are assigned, the diagnostic codes utilized as bases of evaluation be cited, in addition to the codes identifying the diagnoses. See 38 C.F.R. § 4.124a, Diagnostic Code 8009, Note. The Board previously remanded the claim in May 2012 to obtain medical evidence necessary to evaluate the disability. In a July 2012 report, the examining neurologist noted the Veteran's in-service history and diagnosis of subdural hematoma. The veteran was noted to complain thereafter of frequent dizzy/vertigo-type sensations, intermittent headaches, and about three to six episodes of loss of consciousness per year. Although a prior electroencephalogram (EEG) was normal, a normal EEG finding in and of itself was not enough to rule out a diagnosis of epilepsy for the Veteran. The examiner added that given the temporal correlation between these neurological events and the in-service motor vehicle accident, and as these neurological complaints are commonly found after the incurrence of a head injury, it was very likely that all of the neurological symptoms now experienced by the Veteran - dizziness/vertigo, headaches, and episodes of loss of consciousness - were residuals of the 1960 in-service motor vehicle accident. The Veteran was advised to seek further neurological workup for his current conditions. While the July 2012 VA examination findings identified "symptoms and/or residuals," as requested by the Board in its May 2012 remand, the medical evidence is inadequate to rate the disability. The examiner identified headaches, dizziness and vertigo, and possible epilepsy as residuals. However, the severity of each residual is not addressed sufficiently. Thus, another examination is warranted. In a January 2013 brief, the Veteran's representative addressed DC 8045 for rating residuals of traumatic brain injury (TBI). When determining whether an increased rating is warranted, all applicable rating criteria must be considered. Effective October 23, 2008, during the pendency of this appeal, VA amended the Schedule for Rating Disabilities by revising the portion of the Schedule that addresses neurological conditions and convulsive disorders. See 73 Fed. Reg. 54,693 (Sept. 23, 2008). These amendments revise 38 C.F.R. § 4.124a, Diagnostic Code 8045, and are effective October 23, 2008. These amendments apply to all applications for benefits received by VA on or after October 23, 2008. Although the Veteran and his representative did not specifically request a new examination to address the revised criteria, as a new VA examination is necessary for other reasons, the examiner should also address the criteria for TBI. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and extent of any current manifestations of his service-connected syncope due to subdural hematoma, to include TBI with headaches, dizziness and vertigo and possible epilepsy. All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail. The claims file and a copy of this remand (to include the report of VA examination dated in July 2012) should be made available for review in connection with the examination. The examiner should address the severity of the Veteran's service-connected disability consistent with the criteria for evaluating residuals of TBI under DC 8045. The examiner should discuss the level of severity of all currently-identified manifestations of the Veteran's service-connected syncope due to subdural hematoma. In making the assessment, the examiner should identify all comorbid physical, neurological, or mental disorder(s) and state whether each is shown to be caused by the Veteran's TBI. The examiner should specifically discuss any visual impairment and balance impairment. If any condition is not found to be caused by TBI, then the examiner should attempt to distinguish any symptoms and impairment attributable to such disability from identified residuals of TBI. If the manifestations cannot clearly be distinguished, the examiner should clearly so state. As concerning the symptoms and/or residuals of dizziness/vertigo, headaches, and episodes of loss of consciousness reported by the VA neurologist in 2012, the examiner should be asked to comment as to the following: Is the dizziness/vertigo experienced by the Veteran manifested by occasional dizziness, or by dizziness with occasional staggering? If so, objective findings supportive of a finding of such symptoms are requested to be provided. See Diagnostic Code 6204, 38 C.F.R. § 4.87. Are the symptoms related to the Veteran's headaches shown to be in the form of less frequent attacks, characteristic prostrating attacks averaging one in 2 months over the last several months, characteristic prostrating attacks occurring on an average once a month over the last several months, or with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability? See Diagnostic Code 8100, 38 C.F.R. § 4.124a. Pertaining to the reported episodes of loss of consciousness is a confirmed diagnosis of epilepsy with a history of seizures appropriately-assigned in this case, and, of so, what is the number of major and minor seizures suffered by the Veteran in the past two years? See Diagnostic Codes 8910 and 8911, 38 C.F.R. § 4.124a. The examiner should specifically describe any additionally-documented symptoms and/or residuals (other than the three discussed above), found to be manifested in the course of the examination. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2012), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 2. The RO/AMC must review the claims folder and ensure that the foregoing development actions, as well as any other development that may be in order, have been conducted and completed in full. The RO/AMC should review the requested examination report to ensure that it is in complete compliance with the directives of this remand. If any supplied examination report is deficient in any manner, the RO/AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). 3. The Veteran is hereby notified that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. Following completion of all indicated development, the RO/AMC should review and readjudicate the claim for a higher initial evaluation in excess of 10 percent for the Veteran's service-connected syncope due to subdural hematoma. If any benefit sought on appeal is not granted, the RO/AMC shall issue a supplemental statement of the case and afford the Veteran and his representative an opportunity to respond thereto. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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 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 Supp. 2012). _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2012).