Citation Nr: 1328701 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 07-11 250 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a vestibular disorder, to include as due to a traumatic brain injury (TBI) during active service. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). (The motion for revision of a prior decision by the Board of Veterans' Appeals due to clear and unmistakable error is the subject of a separate decision issued simultaneously with this decision under a separate docket number.) REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active military service from August 1964 to August 1967. The Veteran's decorations for his active service include an Army Commendation Medal with a V device for Valor, a Combat Infantryman Badge, and a Purple Heart Medal. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Jurisdiction over the claim was subsequently transferred to the VA RO in Milwaukee, Wisconsin. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. This case was previously before the Board in January 2011, at which time the issues currently before the Board were remanded for additional development. The case has now been returned to the Board for further appellate action. The Board notes that the Veteran perfected appeals of the issues of entitlement to service connection for bilateral hearing loss and tinnitus. A May 2011 rating decision granted service connection for bilateral hearing loss disability and tinnitus. There is no indication that the Veteran has disagreed with the disability ratings or effective dates assigned in that decision. Therefore, that is considered to be a full grant of the benefits sought on appeal and those claims are not longer on appeal to the Board. REMAND The Board finds that additional development is required before the Veteran's claims on appeal can be decided. The Veteran has asserted that he has a vestibular disorder as a result of two traumatic brain injuries (TBI) sustained as a result of exposure to two severe concussive blasts while serving in the Republic of Vietnam. In support of his claim, the Veteran submitted a statement from Mr. J.N., who served with him in the Republic of Vietnam. In the letter, Mr. J.N. noted that the Veteran was knocked unconscious two separate times as a result of explosions occurring while they were involved in combat operations while serving in the Republic of Vietnam. In case of a Veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b) (West 2002); Libertine v. Brown, 9 Vet. App. 521 (1996); Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). The Board finds that the Veteran's statements regarding his exposure to concussive blasts during active service are credible and are consistent with the circumstances, conditions, and hardships of his service. Therefore, the Board concedes that the Veteran's exposure to concussive blasts occurred as described. In January 2011, the Board directed that the Veteran be afforded a VA examination to determine the nature and etiology of any currently present disability manifested by vertigo. In June 2011, the Veteran was afforded a VA examination. At that time, the VA examiner reported that the Veteran's diagnosis was best described as Meniere's disease as he experienced a change in sensation in his left ear that accompanied his vertiginous episodes, because the episodes lasted several minutes at a time, and because the Veteran reported that his vertiginous episodes occurred while sitting still and not just with head movement. However, the examiner then reported that the Veteran's presentation was not particularly classic for Meniere's disease or any other common vertiginous illness in that the Veteran did not demonstrate the low frequency progressive hearing loss common with Meniere's disease and the association of tinnitus with the onset of vertiginous spells. However, the examiner opined that it was less likely as not that the Veteran's vertiginous condition was related to his exposure to noise and concussive blasts during active service. The examiner noted that the delay of onset of the vertiginous condition following the concussive blast spoke of a disconnect between the two events. There is no indication from the record that the examiner was a specialist in evaluating TBIs. The Board finds that opinion is inadequate for adjudication purposes. The examiner does not appear to be certain as to the exact nature of the Veteran's vestibular disorder, as it was not classically presented. Yet, the examiner still provided a negative nexus opinion, despite the uncertainty. Additionally, the examiner cited to the delay of onset of the vertiginous condition following the concussive blast in support of the opinion. However, the Veteran has reported that he experienced vertigo immediately following the blasts and has consistently reported that he has sought treatment for vertigo since at least 1970, just a few years following his separation from active service. Finally, the Veteran has specifically asserted that his vestibular disorder is a result of concussive blasts sustained in active service, yet the Veteran has not been afforded an examination by a TBI specialist. Therefore, as the June 2011 opinion is inadequate, it cannot service as the basis of a denial of entitlement to service connection. With regard to the Veteran's claim of entitlement to TDIU, the Board notes that in the January 2011 decision, the Board directed that the issue of entitlement to TDIU be adjudicated. A review of the record shows that the issue of TDIU was not adjudicated as directed. The Board notes that in a February 2011 rating decision, the Veteran was granted entitlement to a schedular 100 percent rating for service-connected PTSD. The Board can only assume that the issue of TDIU was not adjudicated as it was presumed to be rendered moot with the grant of the schedular 100 percent rating for PTSD. However, the issue of entitlement to TDIU is no longer considered moot when a Veteran is service-connected for disabilities other than that which the single 100 percent disability rating is based. Bradley v. Peake, 22 Vet. App. 280 (2008). The Veteran is in receipt of service-connected disability benefits for disabilities other than the PTSD upon which his schedular 100 percent disability rating is based. Therefore, the Board finds that the development conducted does not comply with the directives of the January 2011 remand. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Board finds that the Veteran should be afforded a new VA examination by a TBI specialist to determine the nature and etiology of any currently present vestibular disorder and the claim of entitlement to TDIU should be adjudicated. Additionally, current treatment records should be obtained before a decision is rendered in this case. Accordingly, this case is remanded to the RO or the Appeals Management Center in Washington, D.C., for the following actions: 1. Provide all required notice in response to the TDIU claim, to include providing and requesting the Veteran to complete and return the appropriate form to claim entitlement to a TDIU, and then adjudicate the Veteran's claim of entitlement to a TDIU. 2. Obtain any pertinent private or VA Medical Center treatment records not already of record in the claims file. 3. Then, schedule the Veteran for a VA TBI examination by a physician with sufficient expertise to determine the nature and etiology of any currently present vestibular disorder. The examiner must review the claims file and note that review in the report. Any indicated studies should be performed. Based upon the examination results and a review of the record, the examiner should provide an opinion with regard to any currently present vestibular disorder as to whether it is at least as likely than not (50 percent or greater probability) that the disability is etiologically related to the Veteran's active service, to specifically include the Veteran's two conceded concussive blast injuries sustained during service. The examiner should presume that the Veteran is a reliable historian with regard to his reports of loss on consciousness during active service and onset and the unremitting nature of his vertigo. The rationale for all opinions expressed must be provided. 4. Then readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Harvey P. Roberts 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).