Citation Nr: 1510858 Decision Date: 03/16/15 Archive Date: 03/27/15 DOCKET NO. 13-04 022 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a dry eye disability. 3. Entitlement to an initial rating in excess of 10 percent for vertigo. 4. Entitlement to a compensable initial rating for scar, status post open heart surgery. ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from June 1982 to July 2009. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. Jurisdiction then transferred to the RO in Baltimore, Maryland. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board determines that a remand is necessary to allow for further development of the claims. With regard to the initial rating claims for vertigo and chest scar, in his December 2012 VA Form 9, the Veteran discussed symptoms that suggested the disabilities were worse than documented at the most recent VA examinations in January 2011 for vertigo and February 2011 for scars. Generally, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Thus, the Veteran should be scheduled for additional VA examinations to assess the current nature and severity of his service-connected vertigo and scar. As for the dry eye disability, the Veteran was scheduled for an examination with QTC in April 2009 and did not attend. In his October 2010 notice of disagreement, he indicated that there had been a scheduling conflict between two examinations and that he was told the eye examination could not be rescheduled within the time frame allowed. Thus, it appears that the Veteran was either not aware that another QTC examination had been scheduled or that the examination was not cancelled as the Veteran believed. Regardless, the Veteran appeared for his other examinations in April 2009, and so the Board affords him the benefit of the doubt and remands the dry eye disability claim so that another VA examination may be scheduled. Finally, with regard to the back disability, the existing record does not demonstrate that the Veteran has a diagnosed back disability in relation to his complaints of back pain. However, the most recent VA treatment note is dated in January 2012, and the Veteran has been seen by VA on a regular basis. Therefore, the Board remands the appeal so that all VA treatment notes dated from January 2012 to the present may be added to the claims file. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). In addition, the Veteran should be scheduled for another VA examination to assess the existence and etiology of his back disability. 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, the appeal must be remanded so that a VA examination may be scheduled. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file all VA treatment records for the Veteran dated from January 2012 to the present. All requests and responses, positive and negative, must be documented in the claims file. 2. Schedule the Veteran for a VA examination to assess the current nature and severity of his service-connected vertigo. The claims file must be provided to the examiner for review in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The examiner must state whether the Veteran suffers from occasional dizziness or dizziness and occasional staggering and address the Veteran's disability in accordance with VA rating criteria. A complete rationale for all opinions must be provided. 3. Schedule the Veteran for a VA examination to assess the current nature and severity of his service-connected scar of the chest. The claims file must be provided to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. In addition to the chest scar, the examiner should identify any other scars related to the Veteran's chest surgery and assess their severity in accordance with VA rating criteria, to include the scars from drain tubes discussed by the Veteran in his December 2012 VA Form 9. A complete rationale for all opinions must be provided. 4. Schedule the Veteran for a VA examination to assess the existence and etiology of his dry eye disability. The claims file should be made available to the examiner for review in conjunction with the examination. Upon review of the record and examination of the Veteran, the examiner should respond to the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran's dry eye disability began in service, was caused by service, or is otherwise related to the Veteran's military service? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A complete rationale for any opinion offered must be provided. 5. Schedule him for a VA examination to assess the existence and etiology of his back disability. The claims file should be made available to the examiner for review in conjunction with the examination. Upon review of the record and examination of the Veteran, the examiner should respond to the following: a. Identify any current disability of the Veteran's back. b. Is it at least as likely as not (50 percent probability or greater) that any current disability of the back began in service, was caused by service, or is otherwise related to the Veteran's military service? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A complete rationale for any opinion offered must be provided. 6. Notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for any VA examination without good cause may include denial of one or more of the claims. See 38 C.F.R. §§ 3.158, 3.655 (2014). 7. After completing the above development, and any other development deemed necessary, readjudicate the issues remaining on appeal. If any benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative, if any, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. 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). 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 2014). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).