Citation Nr: 1330573 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 11-07 341 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for vertigo, claimed as loss of balance and dizziness. 2. Entitlement to service connection for a low back disorder. 3. Entitlement to a rating in excess of 30 percent for posttraumatic headaches. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Fields, Counsel INTRODUCTION The Veteran served on active duty from October 1953 to October 1955, and from January 1959 to March 1965. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in October 2009 and February 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan. The October 2009 rating decision denied the two service connection claims on appeal, and denied a rating in excess of 10 percent for the service-connected headaches. In February 2011, the RO increased the rating for headaches to 30 percent for the entire period on appeal. Nevertheless, the appeal proceeds from the initial unfavorable rating decision, as this was not a full grant of the benefit sought, and the Veteran has not expressed satisfaction with this determination. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Veteran testified before the undersigned Veterans Law Judge at a hearing at the RO in April 2013. The Veteran also has a Virtual VA paperless claims file, which includes a copy of the hearing transcript and other documents that are already in the paper claims file. Any further development or adjudication of this matter should take into account this paperless file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Further development is necessary for a fair adjudication of the Veteran's remaining claims. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). First, there are possibly pertinent outstanding treatment records. During the April 2013 Board hearing, the Veteran testified that he was treated for ear difficulties shortly after separation from service, but he had not yet identified those providers. As the Veteran contends that his claimed loss of balance (vertigo or dizziness) could be due to his ear conditions or to his traumatic brain injury (TBI) during service, these records may be relevant. The Veteran also contends that his current low back disorder may be secondary to his dizziness or loss of balance, in that he falls frequently and hurts his back. Additionally, the Veteran has reported continued VA treatment for his headaches and other claimed conditions. VA's duty to assist includes making appropriate efforts to obtain identified treatment records that may have an impact on the outcome of the claim. See 38 C.F.R. § 3.159. The file currently includes only a few private records dated from 2008 through 2011, and various VA treatment records throughout the years, most recently in September 2011. As such, the Veteran should be requested to identify any outstanding records and providers, and efforts should be made to obtain them. Second, new VA examinations are needed to address all possible theories of causation for the service connection claims after all available medical records have been obtained. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim, and once an examination is provided, VA must ensure that the examination is adequate. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Although the Veteran denied any dizziness during a June 2009 examination for ear disease, he reported having dizziness and loss of balance since 1988 during a September 2011 VA examination for ear disease. As such, the nature of any disability manifested by loss of balance and dizziness is unclear. Further, the examiner did not offer an opinion as to whether such symptoms or disorder were related to service, or to the service-connected right-sided otitis externa or TBI residuals. Additionally, there is no VA examination for the Veteran's claimed low back disorder, or one that adequately addresses this claim on a secondary basis. Although a VA spine examination was conducted in October 2010, it focused on a claim for a neck disorder (or the cervical spine), not the low back that is on appeal. As such, a new examination is needed for these issues. Finally, a new VA examination is necessary to determine the current severity of the Veteran's service-connected headaches. Although he described his current headache symptoms in an August 2011 VA examination concerning Parkinson's disease, it is unclear if, at any point during the appeal, he has had very frequent completely prostrating and prolonged migraine attacks productive of severe economic inadaptability, which would warrant the next higher rating for migraine headaches. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. Further, the Veteran has indicated that he continues to receive VA treatment for his headaches. Any such treatment should be considered by the examiner for an accurate assessment. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Request the Veteran to identify any outstanding records from any providers who have treated him since separation from service for any symptoms of loss of balance (vertigo or dizziness) or low back disorder; and to complete the necessary release (VA Form 21-4142) for each non-VA provider. After obtaining any necessary authorizations, request copies of any outstanding treatment records, including but not limited to any records from the San Juan and Mayaguez VA treatment facilities. All requests and all responses for such records, including negative responses, should be documented, and all records received should be associated with the claims file. If any records cannot be obtained after making appropriate efforts, the Veteran should be notified of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence; and allowed an appropriate time to provide any such records. 2. Thereafter, schedule the Veteran for the appropriate VA examination(s) to determine the nature and etiology of his claimed loss of balance and low back disorder, and the current severity of his headaches. The entire claims file and a copy of this remand should be made available for review, and such review should be noted in the report(s). All necessary tests and studies should be conducted. The examiner(s) must respond to the following: (a) With regard to the claimed loss of balance: (1) Is there a diagnosable disability to account for the Veteran's complaints of chronic loss of balance, dizziness, vertigo, and gait problems? (2) Was any diagnosed disorder at least as likely as not (probability of 50 percent or more) incurred during service, to include as a result of the treatment for ear infections or traumatic brain injury with loss of consciousness? (3) If not, was any diagnosed disorder at least as likely as not proximately caused by the service-connected right-sided otitis externa, TBI residuals, or posttraumatic headaches? (4) If not, was any diagnosed disorder at least as likely as not proximately aggravated (worsened beyond its natural progression) by the service-connected right-sided otitis externa, TBI residuals, or posttraumatic headaches? (b) With regard to the low back: (1) Was any currently diagnosed low back disorder at least as likely as not (probability of 50 percent or more) incurred during service, to include as a result of the traumatic injury? (2) If not, was any diagnosed low back disorder at least as likely as not proximately caused by the service-connected right-sided otitis externa or TBI residuals? Further, was the low back disorder at least as likely as not caused by the claimed dizziness or loss of balance, including the Veteran's reports of falling due to dizziness and imbalance? (3) If not, was any diagnosed low back disorder at least as likely as not proximately aggravated (worsened beyond its natural progression) by the service-connected right-sided otitis externa or TBI residuals? Further, was the low back disorder at least as likely as not aggravated by the claimed dizziness or loss of balance, including the Veteran's reports of falling due to dizziness and imbalance? (c) With regard to the service-connected headaches: (1) Record the severity and frequency of the current manifestations of the headaches. (2) Offer an opinion as to whether, at any point during the period on appeal, the Veteran had very frequent completely prostrating and prolonged migraine attacks productive of severe economic inadaptability. Identify the period. In responding to each of the above, the examiner(s) should provide a clear explanation for any opinion offered. All lay and medical evidence should be considered. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. 3. After completing the above, if any benefit sought on appeal remains denied, issue a supplemental statement of the case to the Veteran and his representative. Allow an appropriate time to respond before returning the case to the Board for review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. All claims 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). _________________________________________________ JOAQUIN AGUAYO-PERELES 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).