Citation Nr: 1636211 Decision Date: 09/15/16 Archive Date: 09/27/16 DOCKET NO. 09-09 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for vertigo, including as secondary to service-connected disabilities. 2. Entitlement to an effective date earlier than May 25, 2010, for the assignment of a 30 percent rating for service-connected peripheral neuropathy of the right lower extremity. 3. Entitlement to an effective date earlier than May 25, 2010, for the assignment of a 30 percent rating for service-connected peripheral neuropathy of the left lower extremity. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty in the Army from January 1968 to November 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, and an August 2010 rating decision by the RO in St. Petersburg, Florida. In pertinent part, the March 2007 rating decision denied service connection for hearing loss, vertigo, and hypertension. The August 2010 rating decision assigned increased ratings of 30 percent respectively for the peripheral neuropathy of the right and left lower extremities, and established service connection for peripheral neuropathy of the right and left upper extremities, all of which was effective from May 25, 2010. In December 2012, the Board, in pertinent part, denied service connection for a hearing loss disability and remanded the remaining issues on appeal for further development. In a February 2016 rating decision, the Agency of Original Jurisdiction (AOJ) granted effective dates of May 5, 2007 for the grant of service connection for peripheral neuropathy of each upper extremity. As this was the date sought by the Veteran, the action constitutes a full grant of benefits sought on appeal with respect to the effective dates assigned for the upper extremities. Likewise, in a March 2016 rating decision the AOJ granted the Veteran's claim for service connection for hypertension, this action represents a full grant of benefits sought on appeal with respect to this issue. Accordingly, the issues of entitlement to effective dates prior to May 25, 2010 for the grant of service connection for peripheral neuropathy of the right and left upper extremities and entitlement to service connection for hypertension are not before the Board. With respect to claim for service connection for vertigo, the development requested in the prior Remand has been completed and associated with the claims file. A Supplemental Statement of the Case was issued in March 2016. The case has been returned to the Board for appellate consideration. The issues of entitlement to effective dates prior to May 25, 2010 for a 30 percent evaluation for peripheral neuropathy of the right and left lower extremities are addressed in the Remand below. FINDING OF FACT Multifactorial disequilibrium is attributable to service-connected peripheral neuropathy. CONCLUSION OF LAW Multifactorial disequilibrium is proximately due to or a result of a service-connected disease or injury. 38 C.F.R. §§ 3.102, 3.159, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Clams Assistance Act of 2000 as amended (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). In this decision, the Board is granting the claims being decided herein. Further discussion of the VCAA is therefore unnecessary. Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As organic diseases of the central nervous system are chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 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. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310. At the outset, the Board notes that the Veteran does not claim, and the evidence does not reflect, that his disability is the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 are not applicable. The Board finds that the evidence of record demonstrates service connection for multifactorial disequilibrium is warranted. The Board acknowledges that the Veteran's vertigo was initially claimed as secondary to his nonservice-connected bilateral hearing loss, and not initially raised as a claim for service connection secondary to his service-connected diabetes mellitus and peripheral neuropathy. However, the Board finds that, on the basis of the February 2016 ear diseases examination, service connection for multifactorial disequilibrium is warranted. In this regard, the February 2016 VA examiner found that the Veteran had multifactorial disequilibrium which is causally related to his service; the Veteran's multifactorial disequilibrium is not a complication of his diabetes mellitus, it was caused by his peripheral neuropathy of the upper and lower extremities. According to the February 2016 VA examiner, the Veteran's balance and unsteadiness, diagnosed as multifactorial disequilibrium, was the result of his service-connected peripheral neuropathy of the upper and lower extremities. The VA examiner noted that the Veteran's service-connected peripheral neuropathy of the upper and lower extremities was caused by the Veteran's service-connected diabetes mellitus, and that the Veteran's multifactorial disequilibrium is secondary to these service-connected disabilities. The VA examiner also stated that the Veteran has benign paroxysmal positional vertigo as well, which was unrelated to noise exposure in service, and that his multifactorial disequilibrium was not "vertigo." The VA examiner noted that the Veteran's peripheral vestibulopathy and his multifactorial disequilibrium were separate disabilities, and that only the multifactorial disequilibrium, manifested by unsteadiness and balance issues, is secondary to the Veteran's peripheral neuropathy and diabetes mellitus. Additionally, the Board finds that the Veteran's reports of and treatment for impaired balance and being prone to falls are credible. In addition, the Board finds that the January 2006 VA physician's statement, which indicated that the vertigo was a complication of the service-connected diabetes mellitus, is consistent with the record. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's multifactorial disequilibrium is related to his service. With resolution of any reasonable doubt in the Veteran's favor, entitlement to service connection for multifactorial disequilibrium is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for multifactorial disequilibrium is granted. REMAND In its December 2012 decision, the Board observed that following the August 2010 rating decision the Veteran submitted a statement dated later that same month questioning why he was not assigned effective dates from May 2007 for these disabilities. The Board further noted that it appears that an August 2010 statement from the Veteran did constitute a timely NOD to the May 2010 effective date for the assignment of a 30 percent rating for the service-connected peripheral neuropathy of the lower extremities, and the May 2010 effective date for the establishment of service connection for peripheral neuropathy of the upper extremities. See 38 C.F.R. §§ 20.200, 20.201, 20.302. Despite the foregoing, the Board noted that the documents assembled for the Board's review do not show a Statement of the Case (SOC) has been promulgated on these issues as required by 38 C.F.R. §§ 19.29 , 19.31. In Manlincon v. West, 12 Vet. App. 238 (1999), the Court held that in circumstances where a NOD is filed, but a SOC has not been issued, the Board must remand the claim to direct that a SOC be issued. (Emphasis added). Consequently, the Board issued a remand to ensure an SOC is promulgated on these earlier effective date claims. While on Remand, the Agency of Original Jurisdiction (AOJ) issued a February2016 rating decision that awarded an effective day of May 5, 2007, for the grant of service connection for peripheral neuropathy of the right and left upper extremities. As this was the date sought by the Veteran, the action of the AOJ constitutes a grant of the benefits sought on appeal with respect to the effective date for the grant of service connection for peripheral neuropathy of the upper extremities. Thus, these issues are no longer before VA. However, while the AOJ issued a February 2014 rating dating that increased the evaluation for the Veteran's peripheral neuropathy of each lower extremity to 40 percent effective September 14, 2012, it did not increase the ratings assigned for the lower extremities prior to May 25, 2010. On the contrary, a codesheet from a March 2016 rating decision indicates that the ratings assigned for the lower extremities remains at 10 percent prior to May 25, 2010. Accordingly, the Veteran's claim for an effective date prior to May 25, 2010 for the grant of 30 percent disability ratings for each lower extremity remains open. The record does not reflect that the AOJ has issued a SOC on the issues pertaining to the lower extremity peripheral neuropathy as requested in the prior Remand. On remand, the Veteran should be provided with a SOC addressing his claims for entitlement to effective dates prior to May 25, 2010, for the grant of a 30 percent disability rating for peripheral neuropathy of each lower extremity. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where... the remand orders of the Board... are not complied with, the Board itself errs in failing to insure compliance). Accordingly, the case is REMANDED for the following action: The AMC/RO should issue to the Veteran a SOC as to the issues of entitlement to an effective date earlier than May 25, 2010, for the assignment of 30 percent evaluations for the service-connected peripheral neuropathy of the right and left lower extremities. The AMC/RO should advise him of the time period in which to perfect an appeal. If, and only if, he perfects an appeal as to these matters, should the case be returned to the Board for further consideration. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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). The Board also observes that the RO sent ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs