Citation Nr: 1804665 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-16 654 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an increased rating in excess of 30 percent for posttraumatic stress disorder (PTSD) with a history of alcohol abuse. 2. Entitlement to service connection for disability exhibited by balance problems and vertigo, to include as secondary to PTSD with a history of alcohol abuse. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. C. King, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, Virginia. In a November 2015 decision, the Board determined that the criteria for an evaluation higher than 30 percent for PTSD were not met, and that the Veteran was not entitled to service connection for balance problems/vertigo. In a June 2017 Memorandum Decision, the Court of Appeals for Veterans Claims (CAVC) vacated and remanded these matters for re-adjudication. In keeping with the provisions of the decision from CAVC, the appeal is hereby REMANDED to the Agency of Original Jurisdiction (AOJ) for further development. VA will notify the appellant if further action is required. REMAND The Veteran contends that his balance problems/vertigo are related to his service-connected PTSD with a history of alcohol abuse. The Veteran, through his representative, set forth a theory of service connection that "while ataxia may occur as a result of several conditions, one is alcoholism []." See October 2016 Appellant Brief at 18, citing NIH: National Institute of Neurological Disorders and Stroke, "Ataxias and Cerebellar or Spinocerebellar Degeneration Information Page," http://www.mayoclinic.org/diseases-conditions/ataxia/basics/causes/con-20030428. Alternatively, the Veteran contends that the balance problems/vertigo are manifestations of a neurobehavioral effect, and related to his service at Camp Lejeune. The Veteran also contends he is entitled to an evaluation in excess of 30 percent for PTSD with a history of alcohol abuse. The Veteran has not, to date, been afforded a VA examination to address the nature and etiology of the balance problems/vertigo. In general, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury ("secondary service connection"). 38 C.F.R. § 3.310(a) Certain diseases are presumed to have been caused by exposure to contaminants in the water supply at Camp Lejeune, if the veteran served for at least 30 days during the period from August 1, 1953 to December 31, 1987. 38 C.F.R. §§ 3.307(a)(7), 3.309(f). VA Training letter 11-03 (revised) (Nov. 29, 2011) indicates service at Camp Lejeune and manifestation of a neurobehavioral effect is, on its own, sufficient to warrant a VA examination. VA's duty to assist includes the conduct of a thorough and comprehensive medical examination. Robinette v. Brown, 8 Vet. App. 69 (1995). This duty is triggered when the record (a) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of a disability; (b) contains competent evidence that the disability may be associated with the claimant's active service; and (c) does not contain sufficient medical evidence to reach a decision on the claim. See 38 U.S.C. § 5103A(d). Review of service records indicates that the Veteran served from October 1967 through January 1928 at Camp Lejeune. The record demonstrates recurrent symptoms of loss of balance and vertigo. A private treatment note dated December 2001 from a clinic noted that the Veteran reported bouts of dizziness, especially when getting up, and when bending his head back; additionally, ataxia and anosmia are noted; a private treatment record from February 2005 noted that the Veteran reported slipping while getting out of the shower; an October 2009 private treatment record noted that the Veteran reported feeling dizzy while standing up. During an August 2012 VA psychology visit, the Veteran complained that he fell over for no obvious reason, and indicated that he does not become dizzy or have any obvious reasons for having fallen. In an October 2012 letter which also describes PTSD symptoms, the Veteran stated "I stumble a lot my balance is shot." The Veteran reiterated problems with his balance control in his October 2013 notice of disagreement and his April 2014 appeal. The Board finds the record to contain sufficient evidence that the Veteran is experiencing recurrent symptoms of balance problems/vertigo. As it is reasonably possible that the claimed condition is a manifestation of a neurobehavioral effect, or that the condition may be associated with the Veteran's service connected PTSD with a history of alcoholism, the Board finds that there is competent evidence that the Veteran's disability may be associated with his active service. There is no medical evidence in the file addressing the nature and etiology of the Veteran's symptoms, and as a result, the evidence is currently insufficient to make a decision on the claim for service connection. Accordingly, a VA examination is warranted to address the nature and etiology of the balance problems/vertigo. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Regarding the claim for an increased evaluation for PTSD with a history of alcoholism, the symptoms of balance problems/vertigo are claimed to be (and may be) related this condition. Consideration of such balance problems/vertigo in rating the mental disorder could, in-theory, warrant a higher rating. See 38 C.F.R. § 4.130 (an evaluation of 70 percent is warranted for occupational and social impairment with deficiencies in most areas due to such symptoms as, among others, spatial disorientation). Complete evaluation of the Veteran's PTSD with a history of alcoholism accordingly requires a medical opinion linking or ruling out the symptoms of balance problems/vertigo. Thus, due to being intertwined (at this juncture) with the claim being remanded, adjudication of the claim for an increased evaluation for PTSD with a history of alcoholism must be deferred. See Harris v Derwinski, 1 Vet. App. 80 (1991). The Board notes (for the sake of clarity) that if the condition causing the balance problems/vertigo is ultimately service-connected and rated, the Veteran will receive only one rating for the symptoms, and will not obtain additional ratings for the same symptoms under separate diagnostic codes. 38 C.F.R. § 4.14. Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any outstanding, pertinent VA and private treatment records not already of record in the claims file. 2. Arrange for an examination with any examiner(s) qualified to opine on the etiology of the Veteran's balance problems/vertigo, and qualified to opine on whether these symptoms are linked to the Veteran's service at Camp Lejeune or his service-connected PTSD with a history of alcoholism. In the examiner's consideration of whether the symptoms claimed are related to mental disorders, the examiner is requested to please note if consideration under the provisions set forth in the DSM-IV would have any effect on the opinion, as this appeal was pending prior to August 4, 2014. The contents of the electronic claim files (in VBMS and Virtual VA), to include a copy of this Remand, are to be made available to the designated examiner for review. The examiner is to note in the medical report that this action has been accomplished. All tests and studies, as well as the clinical findings contained therein, should be reported in detail. **Based on the examination results, review of the record, and any other developmental steps deemed necessary to answer such an inquiry, the examiner should identify any diagnosis or diagnoses manifesting in symptoms of balance problems and/or vertigo. **Thereafter, the examiner must provide an opinion as to whether it is more likely than not (50 percent or greater probability) that any diagnosed condition became manifest during service or within one year of the Veteran's separation from active service. **The examiner should also provide an opinion as to whether it is more likely than not (50 percent or greater probability) that any diagnosed condition was caused or aggravated by the Veteran's active service. **The examiner should also provide an opinion as to whether it is more likely than not (50 percent or greater probability) that any diagnosed condition caused or aggravated by any of the Veteran's service-connected disabilities. Aggravation, as used above, is defined as a worsening, exacerbation, or an increase in severity of the condition. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The medical professional should discuss the particulars of this Veteran's medical history and the relevant medical sciences that apply to this case, which may reasonably make clear the medical guidance in the study of this case. If any requested opinion cannot be provided without resort to mere speculation, the examiner should explain in full why this is the case and identify any additional facts or evidence (if any) that would allow for a more definitive opinion. 3. After the development above has been completed, review the file and ensure that all development sought in this REMAND is completed. Arrange for any further development indicated by the results of the development requested above, and re-adjudicate the issues on appeal. If the determination remains adverse to the Veteran, the AOJ should furnish an appropriate supplemental statement of the case and afford the Veteran the opportunity to respond. The case should be returned to the Board for further appellate consideration, if in order, for further review. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. 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. §§ 5109B, 7112 (2012). _________________________________________________ B. MULLINS 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) (2017).