Citation Nr: 1805272 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 15-03 963A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for Meniere's disease, to include as secondary to service-connected: traumatic brain injury (TBI), and/or tinnitus, and/or cervical strain with degenerative changes. 2. Entitlement to a rating for mechanical low back pain in excess of 10 percent prior to October 10, 2014, and in excess of 20 percent thereafter. 3. Entitlement to a compensable rating for TBI. 4. Entitlement to a compensable rating for tension headaches associated with TBI. 5. Entitlement to a total disability rating based on unemployability (TDIU), to include on an extraschedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD H. Daus, Associate Counsel INTRODUCTION The following issues were raised by the record in the November 2017 Board hearing, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ): (1) entitlement to earlier effective dates for service-connected disabilities; (2) entitlement to an increased rating for cervical strain; (3) entitlement to an increased rating for arthritis of the bilateral knees; (4) entitlement to an increased rating for tinnitus; and (5) entitlement to special monthly compensation based on the need for aid and attendance. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. See 38 C.F.R. § 19.9(b) (2017). The Veteran had qualifying service from January 1980 to January 1983 and December 1984 to May 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2013 and March 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In a February 2015 rating decision, the AOJ increased the low back disability from 10 percent to 20 percent, effective October 11, 2014. However, because the AOJ did not grant the maximum disability rating for this impairment, the appeal remains properly before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). In November 2017, the Veteran and his spouse testified at a videoconference hearing before the undersigned Veterans Law Judge. The Veteran has repeatedly contended that his service-connected disabilities preclude obtaining and/or maintaining a substantially gainful occupation. See Rice v. Shinseki, 22 Vet. App. 447 (2009); October 1988 VA Form 9 (fired because he could not keep up with union standards because of back and left arm pain); SSA disability determination received September 2010 (grant of disability benefits based on intracranial injury, organic brain damage, and benign paroxysmal positional vertigo); February 2011 representative correspondence (unable to work due to various disabilities, some of which are service-connected); June 2013 Notice of Disagreement (submitted the criteria for TDIU, implying its applicability to the claims); November 2017 testimony (representative requested TDIU, to include extraschedular analysis). TDIU is now properly before the Board; however, for the reasons discussed below, further development is required. Due to the Veteran's financial hardship, the Board has advanced these appeals on its docket. See 38 U.S.C. § 7107(a)(2) (West 2012); 38 C.F.R. § 20.900(c) (2017); November 2017 testimony. The appeals are REMANDED to the AOJ. VA will notify the Veteran when further action is required. REMAND The Veteran generally contended that: (1) his Meniere's disease is at least as likely as not (50 percent probability or greater) caused or aggravated beyond natural progression by his service, to include as secondary to service-connected TBI, and/or service-connected tinnitus, and/or service-connected cervical strain with degenerative changes; (2) the manifestations of his service-connected mechanical low back pain are more severe than contemplated by the current ratings (10 percent prior to October 10, 2014, and 20 percent thereafter); (3) the manifestations of his service-connected TBI are more severe than contemplated by the current, noncompensable rating; (4) the manifestations of his service-connected tension headaches are more severe than contemplated by the current, noncompensable rating; and (5) his service-connected disabilities have precluded obtaining and/or maintaining a substantially gainful occupation. See October 1988 VA Form 9; SSA disability determination received September 2010; February 2011 representative correspondence; June 2013 Notice of Disagreement; September 2013 report of general information; February 2015 VA Form 9; June 2016 VA Form 646; November 2017 testimony. However, the claims must be remanded because the Board requires: (1) medical analysis regarding the likelihood of the Meniere's disease being secondary to service-connected TBI, and/or service-connected tinnitus, and/or service-connected cervical strain with degenerative changes; (2) medical analysis regarding the current severity of the service-connected mechanical low back pain, as the Veteran has contended worsening since the last VA examination; (3) medical analysis regarding the current severity of the service-connected TBI, as the Veteran has contended worsening since the last VA examination; (4) medical analysis regarding the current severity of the service-connected tension headaches, as the Veteran has contended worsening since the last VA examination; and (5) consideration of TDIU, to include on an extraschedular basis, in light of the aforementioned development. See October 2014 VA examinations; November 2017 testimony. Accordingly, the case is REMANDED for the following action: (These appeals have been advanced on the Board's docket. See 38 C.F.R. § 20.900(c) (2017). Expedited handling is requested.) 1. Obtain any relevant, outstanding VA treatment records. 2. After completing the above, obtain an addendum opinion to assess whether the Meniere's disease was at least as likely as not caused or aggravated beyond natural progression by his service, to include as secondary to (caused by, aggravated by, or otherwise proximally due to) any of the following: (a) service-connected TBI; and/or (b) service-connected tinnitus; and/or (c) service-connected cervical strain with degenerative changes. No in-person examination is required for this directive, unless the examiner finds it necessary. 3. After completing the above, schedule examinations to assess the current severities of the service-connected: (a) mechanical low back pain; (b) TBI; and (c) tension headaches. 4. After completing the above, readjudicate the appeals. TDIU is inextricably intertwined with the other remanded issues. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The Veteran has the right to submit additional evidence and argument on the remanded matters. See Kutscherousky v. West, 12 Vet. App. 369 (1999). All remanded claims must be handled expeditiously. See 38 U.S.C. §§ 5109B, 7112 (West 2012). _________________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Only a Board decision is appealable to the United States Court of Appeals for Veterans Claims. See 38 U.S.C. § 7252 (West 2012). This remand is in the nature of a preliminary order and does not constitute a Board decision on the merits of your appeals. See 38 C.F.R. § 20.1100(b) (2017).