Citation Nr: 1320010 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 08-01 384 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial compensable rating for bilateral hearing loss. 2. Entitlement to service connection for migraine headaches. 3. Entitlement to service connection for vertigo. 4. Entitlement to service connection for an ear disability. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from January 1967 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) from January 2007 and March 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. It is noted that the RO issued a rating decision in December 2012 granting service connection for right S1 radiculopathy and assigning a 10 percent evaluation effective September 21, 2011, and denying increased ratings for left S1 radiculopathy and the service-connected lumbosacral disability. By way of a December 2012 letter, the RO acknowledged receipt of a notice of disagreement with respect to that decision. The letter informed the Veteran that it would attempt to resolve his disagreement through the post-decision review process which could result in the development of additional evidence and if the benefits could not be granted as a result of this review a statement of the case would be issued. This differs from the situation in Manlincon v. West, 12 Vet. App. 238 (1999), where VA had not acknowledged a notice of disagreement. As the RO acknowledged receipt of a notice of disagreement in this case and currently has jurisdiction over those claims, Manlincon v. West is not applicable in this case. 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's electronic claims file indicates that in a December 2012 rating decision the RO granted the Veteran service connection for right S1 radiculopathy. Consequently the Board must remand the Veteran's claim for TDIU to the AMC for reconsideration of whether the Veteran is entitled to TDIU, with consideration of all of the Veteran's service-connected disabilities, including right S1 radiculopathy. In the substantive appeal dated in January 2008, the Veteran requested a hearing with a Decision Review Officer. The Veteran did testify at a hearing before a Decision Review Officer in May 2008, however, the issues pertaining to this appeal were not addressed. As there is no indication his hearing request has been withdrawn, remand for the scheduling of a hearing before RO personnel is necessary. The Veteran asserts that he has migraine headaches due to his exposure to Agent Orange while serving in Vietnam. He submitted a January 2004 medical certification from a private physician, who opined that the Veteran's migraine headaches are related to Agent Orange. When provided a VA neurological examination in December 2006, the VA examiner did not provide an opinion regarding the Veteran's reported migraine headaches and Agent Orange. The Board finds that in this respect the December 2006 was inadequate and that a new VA neurological examination should be provided to the Veteran. Also, the Veteran's service treatment records reflect that he had a traumatic perforation of the left ear in June 1968. When a VA examination was provided in June 2005, the examiner found that the ear exam was normal. Moreover, upon examination in April 2010, the examiner determined that dizziness was not ear related. However, neither examiner addressed whether the Veteran has any residuals from the in-service perforation (other than service-connected hearing loss and tinnitus) such as a peripheral vestibular disorder or other disorder manifested by dizziness or whether a disability manifested by dizziness is otherwise related to service. Accordingly, another examination is warranted. If the Veteran has received any recent treatment for his claimed disabilities, copies of the treatment records should be obtained. The Board notes that the most recent supplemental statement of the case (SSOC) with regard to the issue of entitlement to a compensable rating for bilateral hearing loss, and the issues of entitlement to service connection for vertigo and for an ear disability, was issued in February 2010. Subsequent pertinent medical evidence was obtained prior to certification of the Veteran's claims to the Board. This includes a VA medical examination of the ears in April 2010, and a VA audiological examination in May 2010. The RO will have an opportunity to consider this evidence on remand. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify any medical records that are not already of record. After obtaining any necessary authorizations from the Veteran, request copies of all treatment records identified by the Veteran. If, after making reasonable efforts to obtain named non-VA records the AMC is unable to secure same, or if after continued efforts to obtain federal records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. When the above action has been accomplished, provide the Veteran an appropriate VA medical examination regarding his reported migraine headaches. The Veteran's claims folder should be made available to, and be reviewed by, the examiner. The examiner should render an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that any headache disability began in or is related to service, to include the incident that resulted in a traumatic ear perforation and presumed exposure to herbicides during service. The examiner's attention is directed to the January 8, 2004 statement of Dr. Medina. The examiner should provide rationale for all opinions given. 3. When step 1 has been accomplished, provide the Veteran an appropriate VA medical examination regarding his reported dizziness. The Veteran's claims folder should be made available to, and be reviewed by, the examiner. The examiner should render an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that any disorder manifested by dizziness (other than service-connected hearing loss and tinnitus), such as a peripheral vestibular disorder or other disorder manifested by dizziness, is related to the in-service left ear perforation or whether a disability manifested by dizziness is otherwise related to service. The examiner should provide rationale for all opinions given. 4. Schedule the Veteran for a hearing before RO personnel in accordance with his request. See substantive appeal dated in January 2008. 5. After completion of the above development, the Veteran's claims should be readjudicated. Readjudication of the Veteran's claim for TDIU should include consideration of all of the Veteran's currently service-connected disabilities. If any determination remains denied, he and his representative should be furnished with an SSOC and given an opportunity to respond. The SSOC should discuss all pertinent evidence received since issuance of the February 2010 SSOC, including the April and May 2010 VA examination reports. The appellant 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 Supp. 2012). _________________________________________________ S. S. TOTH 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).