Citation Nr: 1326220 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 09-03 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for a heart condition. 3. Entitlement to a disability evaluation in excess of 10 percent for vestibular dysfunction of the inner ear. 4. Entitlement to an effective date prior to June 27, 2008, for the grant of service connection for vestibular dysfunction of the inner ear. 5. Entitlement to a total rating based on individual unemployability. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from October 1970 to May 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2008 and July 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The June 2008 rating decision denied the Veteran's claim of entitlement to service connection for osteoarthritis of the lumbar spine. A number of other disabilities, including entitlement to a total disability evaluation based on individual unemployability (TDIU), were denied as well. A notice of disagreement was received from the Veteran in June 2008. However, in November 2008, the Veteran's representative clarified that the June 2008 notice of disagreement was only meant to express disagreement with the decision made on his back claim. As such, the remaining issues are not on appeal. The July 2009 rating decision denied service connection for a heart condition and granted service connection for vestibular dysfunction of the inner ear as 10 percent disabling, effective as of November 7, 2008. All of these issues were appealed to the Board. In a March 2010 rating decision, an earlier effective date of June 27, 2008, was assigned. The Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in St. Louis, Missouri, in May 2012. A written transcript of this hearing has been prepared and incorporated into the Veteran's claims file. The Board notes that additional VA treatment records and a VA psychiatric examination have been added to the claims file since the most recent supplemental statement of the case (SSOC) dated December 2011. The Board notes that this evidence is cumulative of evidence already of record demonstrating that the Veteran complained of having dizziness and blackouts due to his service-connected vestibular dysfunction of the inner ear. As the evidence is cumulative, the Veteran is not prejudiced by the Board's adjudication of the appeal at this juncture. The Board notes that, in Rice v. Shinseki, the Court held that a TDIU claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court also found in Rice that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. By way of a September 2012 psychiatric examination report, the Veteran reported that he retired because of disability secondary to his back, dizziness, blackout spells and due to an inability to remember instructions. The Board notes the Veteran's dizziness and blackout spells have been attributable to the Veteran's service-connected vestibular dysfunction of the inner ear. In light of the fact that the Veteran claims, to a least in part, stop working due to symptoms associated with his service-connected vestibular dysfunction of the inner ear, the Board finds that under Rice the claim for a TDIU rating has been raised by the record. The claim for a TDIU rating is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. Additionally, the issues of entitlement to service connection for a lumbar spine disability and a heart condition 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. FINDINGS OF FACT 1. VA received notification from the Veteran during his May 2012 hearing that he wanted to withdraw his claim of entitlement to an effective date prior to June 27, 2008, for the grant of service connection for vestibular dysfunction of the inner ear. The Board received this request prior to the promulgation of a decision. 2. The Veteran's vestibular disorder of the inner ear has been manifested by daily dizziness and occasional staggering throughout the pendency of his claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal by the Veteran of a Substantive Appeal concerning the issue of entitlement to an effective date prior to June 27, 2008 for a vestibular disorder of the inner ear have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The criteria for establishing entitlement to the highest disability evaluation of 30 percent for a vestibular disorder of the inner ear have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.87, Diagnostic Code 6204 (2012). CONTINUE ON THE NEXT PAGE REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between a Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (here, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. A December 2008 pre-rating letter provided pertinent notice to the Veteran in connection with what was then a claim for service connection for vestibular disorder of the inner ear. That letter indicated what information and evidence was needed to substantiate the claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. After the award of service connection for vestibular disorder of the inner ear, and the Veteran's disagreement with the initial rating assigned, the Veteran was sent a March 2010 SOC that set forth the criteria for a higher ratings for vestibular dysfunction of the inner ear. Additionally, the Veteran was sent a December 2011 SSOC which applied the criteria to the facts of his case. The Board finds that the Veteran had knowledge of what type of evidence was necessary to substantiate his claim. To the extent the Veteran may not have been provided with the complete criteria for rating the disabilities at issue in a notice letter, or that the notice letters are otherwise considered inadequate or not timely, on these facts, the absence of such notice is not shown to have prejudiced the Veteran. The Board finds that VA's duty to assist has been satisfied. The record reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of reports from VA examinations, as well as the Veteran's VA treatment records and records from the Social Security Administration (SSA). Also of record and considered in connection with the appeal are various lay statements given in support of the Veteran's claim. With regard to the Board hearing in May 2012, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, the U.S. Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the May 2012 hearing, the undersigned Veterans Law Judge enumerated the issues remaining on appeal. Also, information was solicited regarding the nature of the Veteran's vestibular dysfunction of the inner ear symptoms. Therefore, not only were the issues "explained . . . in terms of the scope of the claims for benefits," but "the outstanding issues material to substantiating the claim," was also fully explained. Id. at 497. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that Board hearing was legally sufficient. Withdrawn Claim The Veteran has perfected a claim of entitlement to an effective date prior to June 27, 2008, for the grant of service connection for vestibular dysfunction of the inner ear. By a rating decision dated July 2009, the RO, in relevant part, granted service connection for vestibular dysfunction of the inner ear, effective as of November 7, 2008. The Veteran filed a Notice of Disagreement (NOD) in August 2009. A March 2010 Statement of Case (SOC) assigned an earlier effective date of June 27, 2008, and this award was effectuated in a March 2010 rating decision. The Veteran appealed this issue to the Board in March 2010. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204(a) (2012). Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 20.204(c) (2012). During his May 2012 Board hearing, the Veteran stated that he wanted to withdraw his claim of entitlement to an effective date prior to June 27, 2008, for the grant of service connection for vestibular dysfunction of the inner ear. Hence, there remains no allegation of error of fact or law for appellate consideration as to this issue. Accordingly, the Board does not have jurisdiction to review the appeal of this issue and it is dismissed. Increased Rating for Vestibular Dysfunction Relevant Laws and Regulations Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2012). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2012). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in Fenderson v. West, the Court noted that where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. 12 Vet. App. 119, 126 (1999). Facts and Analysis The Veteran contends that he is entitled to a disability evaluation in excess of 10 percent for his service-connected vestibular disorder of the inner ear due to the severity of the symptomatology. Having reviewed the evidence of record in a light most favorable to the Veteran, the Board finds that his symptomatology is most appropriately rated as 30 percent disabling throughout the pendency of his claim. This is the highest schedular rating available for vestibular disorder of the inner ear. A January 2008 VA treatment record indicates that the Veteran denied vertigo at this time. However, according to a subsequent June 2008 record, the Veteran was suffering from ortostatic dizziness. An August 2008 VA treatment record also notes a long history of black out spells since being struck by lightning. However, a March 2009 VA otolaryngology note indicates that the Veteran was doing well with no change in vertigo. The Veteran was afforded a VA examination in July 2009. The Veteran was complaining of unsteadiness and dizziness that seemed to last throughout the day. The examiner diagnosed the Veteran with daily dizziness and some vertigo. Another examination was performed in December 2009. At this time, the Veteran was assessed as having vertigo and dizziness that occurred on a daily basis. A June 2010 VA treatment record also notes that the Veteran's dizziness and balance was "still bad." The record also contains a May 2011 VA treatment record. It was noted that the Veteran's dizziness was getting worse and that he was suffering from "blackout spells on and off." Finally, the Veteran was afforded a VA examination in October 2011. The examiner diagnosed the Veteran with vestibular dysfunction resulting in daily dizziness and occasional episodes of blackout spells. While it was noted that other factors could be contributing to the Veteran's dizziness, such as cerebral dysfunction, the examiner stated that the "main diagnosis for this gentleman is vestibular dysfunction of the ears" with daily dizziness and blackout episodes. According to a November 2011 record, the Veteran was complaining about dizziness and black out spells with syncope episodes "about once per month." The above evidence demonstrates that the Veteran's vestibular dysfunction of the inner ear is more appropriately rated as 30 percent disabling throughout the pendency of his claim. Under Diagnostic Code 6204, peripheral vestibular disorders with occasional dizziness are rated as 10 percent disabling. A higher evaluation of 30 percent is warranted when there is evidence of dizziness and occasional staggering. 38 C.F.R. § 4.87. This is the highest rating available under this code. The medical evidence of record demonstrates that the Veteran has daily dizziness, unsteadiness and problems with his balance as a result of his service-connected vestibular dysfunction of the inner ear. In May 2012, the Veteran testified to daily dizziness and staggering, resulting in occasional falls. The Board finds that the Veteran's testimony is credible as it is consistent with the other medical evidence of record. The Board concludes that the evidence clearly meets the criteria for a 30 percent schedular rating given evidence of dizziness and staggering. However, an evaluation in excess of 30 percent is not warranted. A 30 percent evaluation is the maximum available for vestibular disorders. See 38 C.F.R. § 4.87. The Board has considered whether there are any other applicable diagnostic codes that may apply to the Veteran's claim. However, higher ratings are only warranted for Meniere's syndrome, loss of auricle, or malignant neoplasm of the ear. See 38 C.F.R. § 4.87, Diagnostic Codes 6205-08. The Veteran is not service-connected for any of these disorders. As such, it would not be appropriate to rate his service-connected vestibular dysfunction under these codes. This is especially the case since the diagnostic code specifically provides for how his service-connected condition is to be rated. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. In this regard, to accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The provisions of 38 C.F.R. § 3.321(b) state as follows: Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court specified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. VA's General Counsel has stated that consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule. See VAOPGCPREC 6-96 (Aug. 16, 1996). In Thun, the Court further explained that the actual wages earned by a particular Veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that Veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability. The Thun Court indicated that extraschedular consideration cannot be used to undo the approximate nature of the rating system created by Congress. The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. However, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In the instant case, the Board notes that the schedular criteria does not reasonable describe the Veteran's symptomatology. In this respect, the medical evidence clearly shows that blackouts has been associated with the Veteran's service-connected vestibular dysfunction of the inner ear. Vestibular dysfunction of the inner ear is rated based on symptoms of dizziness and staggering. The rating criteria does not speak to blackouts. As such, the Board finds the rating criteria do not reasonably describe all of the Veteran's symptoms and as a result the schedular criteria is somewhat inadequate. The Board must now consider whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. The Veteran has not been hospitalized for this condition. While the Veteran has stated that he no longer works due, in part, to dizziness and blackouts , the Board notes that this will be contemplated in the Veteran's claim for a TDIU rating. There has been no evidence that the Veteran currently works and that he has marked interference with his employment. See Thun, 22 Vet. App. 111, 114-15 (2008). In light of the foregoing, a referral for an extraschedular rating is not warranted. In sum, the Board finds that a disability evaluation of 30 percent for vestibular disorder of the inner ear is warranted throughout the pendency of the Veteran's claim. See 38 U.S.C. § 5107(b). The claim is granted. ORDER The claim of entitlement to an effective date prior to June 27, 2008, for the grant of service connection for vestibular dysfunction of the inner ear is dismissed. A disability evaluation of 30 percent for vestibular dysfunction of the inner ear is granted. CONTINUE ON THE NEXT PAGE REMAND Lumbar Spine The Veteran contends that he is entitled to service connection for a lumbar spine disability. Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was afforded a thorough and comprehensive VA examination of the spine in March 2008. The examiner opined that it was less likely than not that the Veteran's current lumbar spine disability manifested during, or as a result of, a documented fall in military service. The examiner related the Veteran's current disability to his occupational and post-service injuries, and provided a great deal of rationale in support of this conclusion. However, since the above examination was performed, the Veteran has been awarded service connection for vestibular dysfunction of the inner ear secondary to a lightning strike. The Veteran has since alleged that his back disability is secondary to this condition because he has lost his balance and fallen, injuring his back. Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Also, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. See 38 C.F.R. § 3.310(b); Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). No opinion regarding the etiology of the spine on a secondary basis has been obtained. Therefore, the Veteran should be scheduled for a VA examination regarding the etiology of his claimed back disability. The examiner should opine as to whether it is at least as likely as not that any current lumbar spine disability is due to or the result of his service-connected vestibular disorder and any subsequent falls that are deemed to be associated with this condition. If not, the examiner should opine as to whether it is at least as likely as not that the Veteran's back disability was permanently aggravated beyond the natural progression as a result of his vestibular disorder. Service Connection for a Heart Condition The Veteran also contends that he is entitled to service connection for a heart disorder. The Veteran has alleged that his current heart condition arose as a result of an in-service lightning strike. This lightning strike is clearly supported by the evidence of record. Regrettably, a remand is necessary regarding this issue as well. The Veteran has alleged that his heart was stopped as a result of his in-service lightning strike. While the service treatment records fail to reflect any stoppage of the heart, it is not disputed that he encountered an electrical shock to the left ear while using a telephone during a lightning storm. The Veteran also has reported suffering a myocardial infarction in the 1980s. This is not reflected by the evidence of record. In January 1988, the Veteran underwent a chest X-ray. This was interpreted to reveal no acute disease process in the chest. The Veteran was subsequently treated in September 1989 with complaints of chest pain for the past day. The Veteran was diagnosed with unstable angina/rule out myocardial infarction. A record from the following day notes that the Veteran denied any episodes of chest pain, discomfort or dyspnea, and indicated that he had "never felt better in last year." It was felt that the Veteran's symptomatology was probably not an ischemic episode, but he was sent for a myocardial consultation anyway. The Veteran was subsequently seen in the cardiology clinic, and he was noted to have no further chest pain like that from his September 1989 admission. The Veteran was diagnosed with atypical chest pain. A June 2008 VA cardiology note also reflects that while the Veteran reported a heart attack in the 1980s, he had never undergone cardiac catheterization and there was no reason to suspect his chest pain or palpitations were cardiac in origin. Nonetheless, an April 2008 VA treatment record reflects a history of coronary artery disease (CAD). It is unclear what this history was based on. Also, according to a July 2010 VA treatment record, it was noted that a lightening injury can be very serious, with it most likely affecting the cardiovascular system through the mechanism of cardiac arrest. The VA neurologist noted that it was uncertain of the exact circumstances of injury to the Veteran since he was struck by lightning quite a few years ago. The record does reflect an extensive history of complaints involving the chest by the Veteran. In light of the above facts, the Board finds that additional development should be undertaken before appellate review may proceed. There is a confirmed incident of a lightning strike during military service, the Veteran is competent to report symptoms such as chest pain, he was noted to have a history of CAD in April 2008 and the July 2010 VA neurologist noted that lightning most likely affects the cardiovascular system. This is sufficient evidence to warrant further development. Initially, in his May 2012 hearing, the Veteran testified that he had an upcoming appointment for his heart to determine the cause of his complaints and symptomatology. The Veteran should be contacted and asked to identify where this appointment took place (assuming that it did). All necessary steps should then be taken to obtain records from this cardiology assessment. Once the above assessment is obtained, the Veteran should be scheduled for a VA examination to clarify whether he in fact suffers from any disability involving the heart, and if so, whether it is at least as likely as not that it manifested during, or as a result of, active military service, to include as due to a confirmed lightning strike. The examiner must consider the Veteran's lay statements pertaining to his history. Finally, the most recent evidence of treatment at a VA Medical Center (VAMC) of record is dated October 2011. Records prepared since this time should be obtained and incorporated into the Veteran's claims file. TDIU Rating As noted in the introduction, the record raises a claim for a TDIU rating based on the Veteran's claim for an increased rating for vestibular dysfunction of the inner ear. See Rice, supra. The Veteran should be given adequate notice as it pertains to substantiating this claim. The Veteran should be given an examination to determine whether his service-connected disabilities prevent him from obtaining and engaging in a substantially gainful occupation. Accordingly, the case is REMANDED for the following action: 1. VAMC records prepared since October 2011 should be incorporated into the Veteran's claims file, either physically or electronically concerning the issues on appeal. 2. The Veteran should be contacted and asked to identify medical facilities/doctors that provided the heart assessment he reported he would be attending during his May 2012 hearing. After securing any necessary authorization from him, VA should obtain all identified treatment records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. The Veteran should also be scheduled for a VA examination before an appropriate physician to determine the nature and etiology of his lumbar spine disability. The Veteran's claims file and a copy of this remand must be made available for review by the examiner in conjunction with this examination and the examination report should reflect review of these items. The examiner is asked to perform all indicated tests and studies, and identify the proper disability associated with the Veteran's spine. The examiner should then opine as to whether it is at least as likely as not (at least a 50-50 probability) that this disability is 1) due to or 2) aggravated by the Veteran's service-connected vestibular disorder of the inner ear with any associated falls. In this respect, the Veteran claims that falls caused by the service-connected vestibular dysfunction of the inner ear caused or aggravated his current back disability. The examiner should note that aggravation is defined for these purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation and identify that aspect of the disability which is due to aggravation. A complete rationale must be provided for all opinions offered, and the examiner must consider and discuss the Veteran's lay statements regarding his history and symptomatology concerning his back disability. The examiner should also note the Veteran's past history concerning postservice back injuries. See history reported in March 2008 VA examination. 4. The Veteran should also be scheduled for a VA examination before an appropriate physician to determine whether he suffers from any disability of the heart. The Veteran's claims file and a copy of this remand must be made available for review by the examiner in conjunction with this examination and the examination report should reflect review of these items. The examiner is asked to identify all diagnoses associated with the heart (if any). If any chronic disability is identified, the examiner is asked to opine as to whether it is at least as likely as not (at least a 50-50 probability) that any disability manifested during, or as a result of, active military service, to include as due to a confirmed lightning strike. A complete rationale must be provided for all opinions offered, and the examiner must consider and discuss the Veteran's lay statements regarding his history and symptomatology. 5. Schedule the Veteran for appropriate examinations to ascertain the impact of his service-connected disabilities on his ability to obtain and retain a substantially gainful occupation. The claims file must be provided to and be reviewed by the examiner. The examiner must evaluate and discuss the effect of all of the Veteran's service-connected disabilities on his ability to obtain and retain a substantially gainful occupation. The examiner should identify each symptom associated with the service-connected disorder and then discuss the impact of those symptoms on the Veteran's ability to obtain and retain a substantially gainful occupation. The examiner should opine as to whether it is as likely as not (50 percent or more probability) that the Veteran's service-connected disabilities which are to date includes a left shoulder disability; simple phobia, claimed as post traumatic stress disorder (PTSD);intermittent chronic otitis media of the right ear; tinnitus, vestibular dysfunction of the inner ear; and hearing loss of the right ear, render the Veteran unable to secure or follow a substantially gainful occupation, without regard to his age or nonservice-connected disabilities. In other words, is it at least as likely as not (a 50-50 probability) that the Veteran's service-connected disabilities prevents him from obtaining and retaining a substantially gainful occupation. This should be addressed with respect to 1) each service-connected disability, and 2) the combined effect of all of his service-connected disabilities on his ability to engage in a substantially gainful occupation. A rationale for the opinions expressed should be provided. Note: If the RO subsequently grants service connection for additional disabilities, the examiner should be made aware of this is addressing the questions noted above. 6. The agency of original jurisdiction (AOJ) should then carefully review the medical opinions obtained to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, the AOJ should return the case to the examiner for completion of the inquiry. 7. The AOJ should then readjudicate the claims on appeal, including the claim for a TDIU rating, in light of all of the evidence of record. If an issue remains denied, the AOJ should provide the Veteran a supplemental statement of the case as to the issue on appeal, and afford him a reasonable period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs