Citation Nr: 1806086 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 16-14 056 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for vertigo, to include as secondary to hearing loss and tinnitus. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Robert Batten, Associate Counsel INTRODUCTION The Veteran had active service from July 1973 to July 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huston, Texas. The Board notes that February 2014 rating decision addressed the Veteran's claims for entitlement to service connection for vertigo, entitlement to a TDIU, and an increased rating claim for the Veteran's service-connected bilateral hearing loss. In March 2014, the Veteran filed a Notice of Disagreement (NOD) specifically addressing his vertigo and TDIU claims. In February 2016, VA issued a Statement of the Case (SOC) in which VA interpreted the Veteran's NOD to include a disagreement with the February 2014 the decision that denied an increased rating for the Veteran's service-connected bilateral hearing loss. The Veteran filed a VA Form 9 in March 2016 perfecting his appeal. The Veteran stated in the March 2016 VA Form 9 that he had not sought an appeal for his bilateral hearing claim and that VA should "drop this issue from appeal." Therefore, the only issues before the Board are the claims for entitlement to service connection for vertigo and entitlement to a TDIU. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure the Veteran is given every possible consideration. The Veteran underwent a VA examination in February 2014. The examiner diagnosed the Veteran with peripheral vestibular disorder. The examiner opined that it is unlikely that his current peripheral vestibular disorder is related to his hearing loss. The examiner reasoned that the Veteran reported a head trauma in basic training that was not documented in the record. The examiner stated that the Veteran, however, was able to complete all the requirements over the next three years to reach discharge as a food service handler. The examiner also opined that the Veteran's hearing loss is unlikely due to the noise exposure or head trauma in service because he had normal hearing on discharge. The Board finds that the examiner's opinion is inadequate for adjudication; and thus a new examination is required. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board notes that the Veteran was service-connected for hearing loss and tinnitus in an October 2006 rating decision. The October 2006 rating decision was based on an October 2006 VA medical opinion that the Veteran's hearing loss and tinnitus were more likely than not related to a grenade incident or by duties as a subsistence storage specialist, which involved firing weapons. The February 2014 examiner did not address whether firing a weapon in service was related to the Veteran's peripheral vestibular disorder. Further, the February 2014 examiner did not provide any rationale to why the Veteran's peripheral vestibular disorder was not related to his now service-connected hearing loss. In addition, the February 2014 examiner did not provide an opinion as to whether the Veteran's peripheral vestibular disorder was caused by or was proximity due to tinnitus. Finally, the examiner did not provide an opinion as to whether either the Veteran's service-connected hearing loss and/or service-connected tinnitus aggravated (permanently worsened in severity beyond a natural progression) the Veteran's peripheral vestibular disorder. As the February 2014 examiner did not provide an adequate opinion or rationale as to the Veteran's claim for vertigo a new VA examination is warranted. In addition, the outcome of the claim for a TDIU could be impacted by the results of development ordered on remand; therefore, the issue of entitlement to a TDIU is inextricably intertwined with the issue of service connection for vertigo, and adjudication of entitlement to a TDIU should be deferred pending the proposed development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). 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. Afford the Veteran a VA examination to determine the nature and etiology of the Veteran's vertigo condition. The entire claims file including this Remand must be reviewed by the examiner. Any tests or studies deemed necessary should be conducted. The examiner should then provide the following opinions: a) Whether it is as least as likely as not (50 percent probability or greater) that the Veteran's vertigo was caused by active duty service or otherwise related to any in-service disease, event, or injury. In rendering this opinion the examiner should address the Veteran's statements concerning a grenade incident in-service. The examiner should also address that VA had conceded acoustic trauma due to firing weapons in the course of his service. The examiner should address the Veteran's private treatment record from September 2014, which notes that the Veteran had a history of multiple traumas to the ears that more likely affected his balance as well as a possible cause of his vertigo. b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's vertigo is proximately due to, OR alternatively, aggravated by (permanently worsened beyond the natural progression of such disorder), service-connected hearing loss and/or tinnitus. The examiner should address the Veteran's October 2006 VA examination, which found that a functional effect of the Veteran's tinnitus and hearing loss was dizziness and imbalance. If the examiner determines that the Veteran's vertigo is aggravated by hearing loss and/or tinnitus, the examiner should report the baseline level of severity of the vertigo condition prior to the onset of aggravation. c) The examiner must provide a detailed rationale for all opinions and reconcile it with all pertinent evidence of record. If an opinion cannot be rendered without resorting to pure speculation, the examiner should explain why. 2. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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) (2017).