Citation Nr: 1312303 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 10-20 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for vertigo, to include as secondary to service-connected hypothyroidism and tinnitus. 2. Entitlement to service connection for bilateral knee arthritis. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from February 2001 to February 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal of October 2008 and December 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which denied the Veteran's claims. In August 2011, the Veteran presented sworn testimony at a Travel Board hearing which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims folder. The issues of entitlement to service connection for bilateral knee arthritis and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The competent and probative evidence of record serves to link the Veteran's currently diagnosed vertigo to her military service. CONCLUSION OF LAW The Veteran's currently diagnosed vertigo was incurred in military service. 38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks entitlement to service connection for vertigo. The Board will first discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist a claimant in the development of a claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). A VCAA notice letter was sent to the Veteran regarding her service connection claim in September 2008. This letter appears to be adequate. The Board need not, however, discuss in detail the sufficiency of the VCAA notice letter in light of the fact that the Board is granting the claim. Any potential error on the part of VA in complying with the provisions of the VCAA has essentially been rendered moot by the Board's grant of the benefit sought on appeal. The Board further notes that the Veteran received proper notice as to degree of disability and effective date in the above-referenced September 2008 VCAA letter, as required by the decision of the United States Court of Appeals for Veterans Claims (the Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006). As discussed below, the Board is granting the service connection claim. It is not the Board's responsibility to assign a disability rating or an effective date in the first instance. The RO will be responsible for addressing any notice defect with respect to the assignment of an initial disability rating and/or effective date when effectuating the award, and the Board is confident that the Veteran will be afforded appropriate notice under Dingess. Accordingly, the Board will proceed to a decision on the merits as to the issue on appeal. Service connection for vertigo Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In addition to disabilities that were incurred in, or aggravated by, active military service, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (2012); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). With respect to secondary service connection, an analysis similar to the Court's decision in Hickson applies. There must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran is claiming entitlement to service connection for vertigo, which she contends is due to her military service and alternatively her service-connected hypothyroidism and tinnitus. See the Veteran's notice of disagreement dated in March 2009; see also the August 2011 Board hearing transcript, pgs. 2-3. It is undisputed that the Veteran currently suffers from vertigo. See, e.g., the August 2010 VA examination report. Hickson/Wallin element (1) is, therefore, satisfied. Turning to Hickson element (2), in-service incurrence of an injury or disease, the Veteran contends that her vertigo manifested in 2005 during military service. Notably, a review of her service treatment records documents complaints of and treatment for vertigo in March 2006. Additionally, service treatment records dated March 2006, April 2006, and August 2006 document the Veteran's complaints of headaches. The remainder of her service treatment records is absent complaints of or treatment for vertigo or symptoms associated therewith. However, based on service treatment records indicating treatment for vertigo in 2006, the Board finds that Hickson element (2) is arguably satisfied. Wallin element (2) has been met; the Veteran is service-connected for hypothyroidism and tinnitus. Turning to element (3), medical nexus, the competent and probative evidence demonstrates that the Veteran's currently diagnosed vertigo is related to her military service. Specifically, the Veteran was afforded a VA examination in August 2010. Pertinently, the VA examiner considered the Veteran's report of the onset of her vertigo. After examination of the Veteran and consideration of her medical history, the VA examiner concluded "[i]t is of note that the [Veteran's] symptoms did begin while she was [in] active military service..." The examiner's rationale for his conclusion was based on examination of the Veteran and consideration of her medical history, to include review of her claims folder. The August 2010 VA examination report appears to have been based upon a thorough examination of the Veteran and thoughtful analysis of the Veteran's entire history and current medical condition. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. Additionally, the Board finds the Veteran's report of the onset of her vertigo competent and credible based on a review of her service treatment records discussed above which document treatment for such. Moreover, there is no opinion of record which indicates that the Veteran's vertigo is not related to her military service. In short, the Board finds that there is sufficient competent and probative evidence to indicate a positive medical nexus between the Veteran's current disability and his military service. Element (3), and therefore all elements, is satisfied. In summary, the Veteran has met all requirements needed to establish service connection for vertigo. The benefit sought on appeal is therefore granted. ORDER Entitlement to service connection for vertigo, to include as secondary to service-connected hypothyroidism and tinnitus is granted. REMAND Bilateral knee arthritis The Board observes that evidence pertaining to the Veteran's bilateral knee arthritis claim, specifically a VA examination report dated September 2011 with an addendum dated October 2011, has been associated with her claims folder following issuance of the most recent SSOC which is dated February 2011. Under pertinent VA regulations, evidence received by the Board from the Veteran or their representative after the last statement of the case (SOC) or SSOC should be referred to the agency of original jurisdiction (AOJ) for consideration unless a waiver of AOJ consideration has been submitted by the Veteran or their representative. See 38 C.F.R. § 20.1304(c) (2012). In this regard, the Board informed the Veteran and her representative in a letter dated January 2013 that the aforementioned additional evidence was not considered in a decision by the AOJ and that if the Veteran wished to waive consideration of the evidence by the AOJ, she must do so in writing within 45 days from the date of the letter. She was also informed that if she did not respond to the letter, her claim would be remanded to the AOJ for review. As evidenced by the claims folder, neither the Veteran nor her representative responded to the January 2013 letter. Accordingly, the Veteran's claim of entitlement to service connection for bilateral knee arthritis must be remanded for issuance of a SSOC. TDIU The Veteran essentially contends that her service-connected disabilities render her unable to secure and maintain gainful employment. See, e.g., the August 2011 Board hearing transcript, page 6. The Veteran's service-connected disabilities are the following: sleep apnea, rated 50 percent disabling; hyperthyroidism associated with hypothyroidism status post partial thyroidectomy for solitary thyroid nodule, rated 30 percent disabling; hypothyroidism status post partial thyroidectomy for solitary thyroid nodule, rated 30 percent disabling; migraines, rated 30 percent disabling; adjustment disorder with depressed mood, rated 30 percent disabling; right knee chondromalacia patellae status post lateral release, rated 10 percent disabling; left shoulder strain, rated 10 percent disabling; cervical strain, rated 10 percent disabling; left knee chondromalacia patellae status post lateral release, rated 10 percent disabling; tinnitus, rated 10 percent disabling; right knee instability associated with right knee chondromalacia patellae status post lateral release, rated 10 percent disabling; status post fracture involving proximal phalanx of the left big toe, rated noncompensable [zero percent] disabling; left carpal syndrome, rated noncompensable; right carpal tunnel syndrome, rated noncompensable; neck scar associated with hypothyroidism status post partial thyroidectomy for solitary thyroid nodule, rated noncompensable; left knee scar associated with left knee chondromalacia patellae status post lateral release, rated noncompensable; and right knee scar associated with right knee chondromalacia status post lateral release, rated noncompensable. The Veteran's combined disability rating is 90 percent, with one disability being at least 40 percent disabling. Therefore, the service-connected disabilities meet the schedular criteria for consideration of TDIU under 38 C.F.R. § 4.16(a). The Board adds that, as discussed above, the Veteran is also service-connected for vertigo which has yet to be assigned. In raising the issue of employability, the Board observes that the Veteran was afforded a VA psychological examination in September 2011. After examination of the Veteran and consideration of her medical history, the VA examiner concluded that the Veteran's diagnosed adjustment disorder with anxious and depressed mood "did not significantly interfere with social or occupational functioning..." Crucially, however, the remainder of medical records currently associated with the Veteran's VA claims folder is absent an opinion as to whether the Veteran's other service-connected disabilities, either alone or in the aggregate, render her unable to maintain substantial gainful employment. In light of the foregoing, the Board finds that an updated opinion with respect to employability must be obtained. See Charles v. Principi, 16 Vet. App. 370 (2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4) (2012) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim]. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for an appropriate VA examination to determine whether her service-connected disabilities prevent her from securing and following substantially gainful occupation. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available for review of the case. A notation to the effect that this record review took place should be included in the report. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 2. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims of entitlement to service connection for bilateral knee arthritis and entitlement to TDIU should be readjudicated. If the claims remain denied, a supplemental statement of the case should be provided to the Veteran and her representative. After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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 Supp. 2012). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs