Citation Nr: 1803084 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 14-38 514 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for vertigo, to include as secondary to service-connected tinnitus. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to a compensable rating for bilateral hearing loss to include on an extraschedular basis prior to June 5, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran served on active duty from November 1945 to May 1948, and, from October 1950 to July 1968. This appeal to the Board of Veterans' Appeals (Board) arises from January 2009 and May 2009 rating decisions. In June 2011, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO. The Board, in pertinent part, denied entitlement to a compensable rating for bilateral hearing loss, prior to June 5, 2010, in a March 2015 decision. The Board also remanded service connection claims for vertigo, to include as secondary to tinnitus, and a left knee disorder. The Veteran appealed the Board's March 2015 decision to the U.S. Court of Appeals for Veterans Claims (Court), insofar as it declined to refer for extraschedular consideration the Veteran increased rating claim for bilateral hearing loss, effective prior to June 5, 2010, per Doucette v. Shulkin, 28 Vet. App. 366, 369-71 (2017); and did not address the competency of a VA audiology examination provided in November 2008, as it pertains to Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In a May 2017 memorandum decision, the Court set aside the Board's March 2015 decision with respect to the compensable disability rating for bilateral hearing loss prior to June 5, 2010, to include extraschedular consideration of that matter, and remanded the case for further adjudication consistent with the Court's decision. The case is now returned to the Board for appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Initially, it is noted that not all of the development in the Board's March 2015 remand was conducted pertaining to the service connection claim for vertigo secondary to tinnitus and a left knee disability. Specifically, the supplemental medical opinions regarding the etiologies of these disabilities were not provided. Thus, these matters are remanded once again. As for the increased rating claim for bilateral hearing loss, prior to June 5, 2010, pursuant to the Court's memorandum decision, the case is referred for extraschedular consideration, particularly with consideration of the Veteran's complaints of dizziness, which are not considered by the rating schedular for hearing loss. See Doucette v. Shulkin, 28 Vet. App. 366, 369-71 (2017). An analysis as to the adequacy of the November 2008 VA examination as it pertains to Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) is deferred until additional development is conducted below. 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). Expedited handling is requested.) 1. Make arrangements to obtain any relevant VA treatment records for the Veteran's left knee and vertigo disabilities dated from April 2014 to present. 2. Ask the Veteran to identify any additional pertinent treatment records for his hearing loss prior to June 2010, or his vertigo and left knee disabilities at any relevant time during the appeal. Make arrangements to obtain any records identified. 3. After any additional relevant records are obtained, make arrangements to obtain a supplemental opinion from the VA examiner who provided the November 2012 VA examination regarding the etiology of the Veteran's left knee and vertigo disabilities. If deemed necessary, reschedule the Veteran for additional VA orthopedic and/or neurological examinations. The virtual file (including any additional relevant treatment records) and a copy of this remand must be made available to, and reviewed by, the examiner in conjunction with the opinion and/ or examination. The examiner must note that the claims file was reviewed. Any and all indicated studies and tests should be completed. The examiner must provide an opinion as to the following: (a) whether it is at least as likely as not (50 percent probability or more) that the Veteran's current left knee disability had its onset in service or is otherwise related to active service, including his reported injury to the left knee in 1955 in service. In making this assessment, the examiner should consider the following: (1) The Veteran's competent reports of injury to his left knee in service when a cable slid into him; (2) The Veteran's competent statements regarding onset of symptoms in his left knee in service, and his contention that his subsequent injury to the knee in 1977, 2006, and 2007 was an aggravation of the previous left knee injury in service; and (3) the records of post-service injury to the left knee in 1977, 2006, and 2007. (b) whether it is at least as likely as not (50 percent probability or more) that the Veteran's current diagnosis of benign positional vertigo had its onset in service or is otherwise related to active service, including his exposure to acoustic trauma in service. (c) whether it is at least as likely as not that the Veteran's dizziness (claimed as vertigo) is caused by, or alternatively, aggravated (chronically worsened beyond the natural progression of such disorder) by the Veteran's service-connected bilateral hearing loss and/or tinnitus. In making this assessment, the examiner should consider the following: (1) The Veteran's competent reports of experiencing vertigo in service and continued symptoms after separation from service; and (2) the Veteran's presumed exposure to acoustic trauma in service. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A complete rationale for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 4. Thereafter, refer the claim for an increased rating for bilateral hearing loss prior to June 5, 2010, to the Director of VA's C&P Service or VA's Undersecretary for Benefits, for consideration and adjudication of the question of whether the Veteran is entitled to a higher rating on an extraschedular basis during the time period from September 9, 2008 to June 5, 2010. Particularly it should be noted that the Veteran had complaints of dizziness associated with his hearing loss, which is not contemplated by the rating criteria for hearing loss, 38 C.F.R. § 4.85, Diagnostic Code 6100. 5. Thereafter, readjudicate the claim. If any benefit sought remains denied, issue a Supplemental Statement of the Case to the Veteran and his representative and provide an opportunity for the Veteran and his representative to respond. The case should then be returned to the Board for review. The Veteran 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. §§ 5109B, 7112 (2012). S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2016).