Citation Nr: 19117828
Decision Date: 03/12/19	Archive Date: 03/12/19

DOCKET NO. 17-34 101
DATE:	March 12, 2019

REMANDED

Entitlement to an increased rating in excess of 60 percent for Meniere’s Disease, from October 22, 2012, is remanded.

REASONS FOR REMAND

The issues of degenerative disc disease in the thoracolumbar spine and total disability rating based on individual unemployability (TDIU) have not been perfected on appeal and, thus, are not currently before the Board of Veterans’ Appeals. 38 U.S.C. § 7105(d); 38 C.F.R. § 20.101(d).

Entitlement to an Increased Rating in Excess of 60 Percent for Meniere’s Disease from October 22, 2012 is Remanded.

The Veteran contends that he experiences hearing impairment with attacks of vertigo and cerebellar gait more than four times a month. See June 2017 Substantive Appeal (VA Form 9) (Veteran reported experiencing vertigo four to five times per month); February 2019 Appellate Brief (Veteran reported that symptoms have worsened since the previous VA examination, experiencing vertigo and cerebellar gait more than once a week).

While the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted, see Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007) and VAOPGCPREC 11-95, in the context of a specific assertion of worsening or evidence suggesting a worsening since the last examination, an examination too remote for rating purposes cannot be considered “contemporaneous.” See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Suttman v. Brown, 5 Vet. App. 127, 138 (1993); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). 

In this case, the Veteran has made specific statements with regard to the worsening of the service-connected Meniere’s Disease. As such, the Board finds that further examination would be helpful in deciding the issue of rating Meniere’s disease.

This issue is REMANDED for the following action:

1. Schedule a VA examination to assist in determining the current severity and functional limitations of the Meniere’s Disease. The VA examiner should review the evidence associated with the record.

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2. Then readjudicate the issue on appeal in light of all pertinent evidence. If any benefit sought on appeal remains denied, provide the Veteran and representative with a supplemental statement of the case and allow an appropriate time for response.

 

J. PARKER

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	Danielle Costantino, Associate Counsel