Citation Nr: 20004803 Decision Date: 01/23/20 Archive Date: 01/21/20 DOCKET NO. 10-15 258 DATE: January 23, 2020 REMANDED Service connection for Meniere’s disease, to include as secondary to the service-connected hepatitis A, is remanded. Service connection for vertigo, to include as secondary to the service-connected hepatitis A, is remanded. Service connection for diabetes mellitus, to include as secondary to the service-connected hepatitis A, is remanded. Service connection for a bilateral lower leg/foot disorder, other than that due to the service-connected bilateral lower extremity radiculopathy, and secondary to service-connected lumbar spine disability, is remanded. An initial disability rating of 10 percent for hepatitis A prior to January 22, 2019, and in excess of 40 percent thereafter, is remanded. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities. REASONS FOR REMAND The Veteran served on active duty from July 1969 to June 1976, and from December 1986 to April 1991. This matter is before the Board of Veterans’ Appeals (Board) on appeal of July 2010, September 2010, June 2012, October 2012 rating decisions of the Regional Offices of the Department of Veterans Affairs (VA). In June 2013, the Veteran testified at a Board videoconference hearing before a Veterans Law Judge (VLJ). In October 2016, the Veteran was notified that the VLJ who had presided over the June 2013 hearing was no longer employed with the Board. The Veteran was offered an additional Board hearing before a newly assigned VLJ. 38 C.F.R. § 20.707. In November 2016, the Veteran requested a new Board hearing. As such, the matter was remanded in March 2017 for another Board hearing. Subsequently, in a June 2017 statement, the Veteran asked to withdraw the hearing. The service connection claims were last before the Board in August 2018, whereupon the Board issued a decision denying entitlement to service connection for Meniere’s disease, vertigo, diabetes mellitus and bilateral lower leg/foot disorder disabilities. In that same decision, the Board also granted an initial disability rating for hepatitis A from February 21, 2008 to February 2, 2012 and denied a disability rating in excess of 10 percent for any period on appeal. The Board referred the issue of entitlement to TDIU to the RO. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Partial Remand (JMR) in July 2019, the Court vacated the Board’s decision and remanded the issues to the Board with directions to further develop the file in support of the Veteran’s claim. The Board notes that in a September 2019 Board decision, the Board denied a disability rating in excess of 10 percent for the Veteran’s service-connected hepatitis A disability from August 10, 2018 to January 21, 2019, and denied an evaluation in excess of 40 percent thereafter. The change in the description of the rated issue, since the August 2018 Board decision, is noted on the title page. This matter arose from an entirely different appeal stream, and does not affect the inclusion of the hepatitis A issue with the current appeal. Of note, in its July 2019 JMR, the Court determined that Board erred in referring and not remanding or adjudicating the issue of TDIU as it is part and parcel of the Veteran’s increased rating claim. As such, the issue has been included on the title page. Claims on Appeal A review of the record shows that in a statement dated in April 2012, the Veteran noted that his claimed Meniere’s disease and vertigo disabilities were secondary to his service-connected hepatitis disability. A June 2012 correspondence reflects that the Veteran noted that his bilateral lower leg/foot disorder was secondary to his service-connected lumbar spine disability. The Board also notes that the Veteran contends that the incorrect rating code was applied to his service-connected hepatitis disability. As an initial matter, the Board notes that in its July 2019 JMR, the Court stated that the Veteran had been hospitalized at the Jacksonville Naval Hospital while in service. The Veteran’s Report of Medical Examination for discharge in 1976 shows that the Veteran had been hospitalized with hepatitis from December 3, 1969 to January 7, 1970. The Court noted that a request for the Veteran’s hospitalization records had been made, and, in a September 2009 correspondence, VA noted that a negative response had been received from the National Personnel Records Center. However, the Court notes that the dates of the records search were not for the complete date of the Veteran’s hospitalization. A review of the September 2009 response shows that the dates specified in the correspondence was from December 31, 1969 to January 7, 1970. Specifically, for the claims for service connection for diabetes mellitus and for the increased rating for hepatitis, the Court indicated that the Board should obtain the complete hospitalization records from the Jacksonville Naval Hospital, dated December 3, 1969 to January 7, 1970. As such, while on remand, the RO should make an attempt to obtain the complete hospitalization records. Regarding the Veteran’s denied claims for service connection for Meniere’s disease, vertigo, diabetes mellitus and a bilateral lower leg/foot disorder, the Court noted that the Veteran “had years of experience as a medical doctor” and stated that the statements describing his own symptoms and diagnoses were competent medical statements. The Court indicated that while the Board did not ignore the Veteran’s background as a medical doctor in its August 2018 Board decision, the Board noted that the Veteran did not have specific training or experience regarding vestibular and/or orthopedic disorders. Additionally, the Court also noted there was evidence of diagnoses of other bilateral lower extremity conditions. (See November 2016 statement from the Veteran, a January 2010 neurology report and August 2014 VA examination) A review of the examination reports of record, both VA and private, do not show that diagnoses of Meniere’s disease, vertigo, or bilateral lower leg/foot disorder, other than the service-connected bilateral lower extremity radiculopathy, have been provided. The records also show that a Veterans Heath Administration opinion dated in December 2017 reflected a negative opinion regarding a relationship between the Veteran’s diabetes mellitus and his service-connected hepatitis disability. In its July 2019 JMR, the Court indicated that the Board’s explanation of the probative value of the Veteran’s statements, in light of his medical credentials, when weighed against the VA opinions, was not adequate. As the Court has remanded of the issues, the Board finds that additional VA examinations are needed to determine whether any diagnosed disabilities are related to the Veteran’s active duty service and/or service-connected disabilities. The VA examiner should include adequate consideration of the Veteran’s lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007). Next, in its July 2019 JMR, the Court noted that the Veteran stated that he was unemployable due to his service-connected disabilities and cited Rice v. Shinseki, 22 Vet. App. 447 (2009), noting that the record reasonably raised TDIU as a component of the underlying increased rating claim. The remanded claims may affect the claim of TDIU if they are granted. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain the Veteran’s hospitalization records from the Jacksonville Naval Hospital, specifically for the dates of December 3, 1969 to January 7, 1970. If no relevant records exist, the claims file should be annotated to reflect such. 2. Schedule the Veteran for a VA examination by an appropriate professional to determine the nature and etiology of the claimed Meniere’s disease. The examiner must review the entire claims file. All necessary tests and studies should be conducted. If a diagnosis of Meniere’s disease, is rendered, including when considering the Veteran’s lay statements and his professional training, the examiner is asked to address the following: a. Is it at least as likely as not (50 percent or greater probability) that any diagnosed Meniere’s disease was caused by service, or by the Veteran’s service-connected hepatitis disability? b. Is it at least as likely as not (50 percent or greater probability) that any diagnosed Meniere’s disease was aggravated (increased in severity beyond the natural progress of the condition) by the Veteran service-connected hepatitis disability? If aggravation is found, the examiner should provide the baseline manifestations of the Veteran’s Meniere’s disease prior to aggravation by the service-connected hepatitis disability. A complete rationale must be provided for all opinions expressed and conclusions reached. 3. Schedule the Veteran for a VA examination by an appropriate professional to determine the nature and etiology of the claimed vertigo. The examiner must review the entire claims file. All necessary tests and studies should be conducted. If a diagnosis of vertigo is rendered, including when considering the Veteran’s lay statements and his professional training, the examiner is asked to address the following: a. Is the vertigo complained of a symptom of the service-connected hearing loss and/or service-connected tinnitus or a separate disability? If a separate disability: b. Is it at least as likely as not (50 percent or greater probability) that any diagnosed vertigo was caused by service, or by the Veteran’s service-connected hepatitis disability? c. Is it at least as likely as not (50 percent or greater probability) that the diagnosed vertigo was aggravated (increased in severity beyond the natural progress of the condition) by the Veteran service-connected hepatitis disability? If aggravation is found, the examiner should provide the baseline manifestations of the Veteran’s vertigo prior to aggravation by the service-connected hepatitis disability. A complete rationale must be provided for all opinions expressed and conclusions reached. 4. Schedule the Veteran for a VA examination by an appropriate professional to determine the nature and etiology of the claimed bilateral lower leg/foot disorder. The examiner must review the entire claims file. All necessary tests and studies should be conducted. If a diagnosis of bilateral lower leg/foot disorder, other than that due to the service-connected bilateral lower extremity radiculopathy, is rendered, including when considering the Veteran’s lay statements and his professional training, the examiner is asked to address the following: a. Is it at least as likely as not (50 percent or greater probability) that any diagnosed bilateral lower leg/foot disorder was caused by service, or by the Veteran’s service-connected lumbar spine disorder? b. Is it at least as likely as not (50 percent or greater probability) that the diagnosed bilateral lower leg/foot disorder was aggravated (increased in severity beyond the natural progress of the condition) by the Veteran service-connected lumbar spine disorder? If aggravation is found, the examiner should provide the baseline manifestations of the Veteran’s bilateral lower leg/foot disorder prior to aggravation by the service-connected lumbar spine disorder. A complete rationale must be provided for all opinions expressed and conclusions reached. 5. Schedule the Veteran for a VA examination by an appropriate professional to determine the nature and etiology of the diagnosed diabetes mellitus disability. The examiner must review the entire claims file. All necessary tests and studies should be conducted. The examiner is requested to provide opinions, supported by a rationale, including when considering the Veteran’s lay statements and his professional training, as to the following: a. Is it at least as likely as not (50 percent or greater probability) that any diagnosed diabetes mellitus was caused by service, or by the Veteran’s service-connected hepatitis disability? b. Is it at least as likely as not (50 percent or greater probability) that the diagnosed diabetes mellitus was aggravated (increased in severity beyond the natural progress of the condition) by the Veteran service-connected hepatitis disability? If aggravation is found, the examiner should provide the baseline manifestations of the Veteran’s diabetes mellitus prior to aggravation by the service-connected hepatitis disability. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A-L Evans, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.