Citation Nr: 20051237 Decision Date: 08/03/20 Archive Date: 08/03/20 DOCKET NO. 12-08 406 DATE: August 3, 2020 REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to a rating in excess of 30 percent for Meniere’s disease prior to July 23, 2019, is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) prior to July 23, 2019, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from to January 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions in April 2010 and May 2010 by the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded for additional development in March 2015 and December 2018. The Board notes that a subsequent August 2019 rating decision, in essence, established separate ratings for tinnitus, assigned a 10 percent rating effective from July 23, 2019, and for hearing impairment, assigned a 60 percent rating effective from July 23, 2019. An October 2019 rating decision, however, found that an increased 100 percent rating for Meniere’s disease effective from July 23, 2010, was more appropriate. The issues for appellate review have been accordingly revised. 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. 2. Entitlement to a rating in excess of 30 percent for Meniere’s disease prior to July 23, 2019, is remanded. 3. Entitlement to a TDIU prior to July 23, 2019, is remanded. The Veteran contends that he has an acquired psychiatric disorder as a result of active service, to include as secondary to his service-connected disabilities. The Board notes that although a December 2019 VA examiner found it was not likely that an acquired psychiatric disorder was incurred in or caused by service no opinion was provided as to whether the criteria for such disability was manifest for any identifiable period of time during the appeal. Nor did the opinion address the issue of aggravation due to a service-connected disability. It is also significant to note that the examiner did not acknowledge or address VA records dated in April 2015 noting an Axis I diagnosis of major depressive disorder. The Board finds the December 2019 opinion is in adequate and that additional development is required prior to appellate review. The Veteran also contends that his service-connected Meniere’s disease prior to July 23, 2019, was more disabling than reflected by the assigned 30 percent rating, and that he was unemployable including as a result of this disability. The Veteran’s claims for increased and, by VA regulation, separate ratings were received on July 29, 2009. It is noted, under 38 C.F.R. § 4.87, Diagnostic Code 6205, that Meniere’s syndrome is to be evaluated either under the prescribed criteria or by separately evaluating vertigo (as a peripheral vestibular disorder), hearing impairment, and tinnitus, whichever method results in a higher overall evaluation. However, under Diagnostic Code 6204, objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned. The Board notes that VA treatment reports show the Veteran underwent audiology evaluations on May 18, 2017, and June 19, 2018, but that pertinent audiogram findings are not included in the available record. This information is required for an adequate determination. The Board also notes that a March 2015 remand order requested that the Veteran be scheduled for a VA evaluation by a vocational specialist to ascertain and evaluate whether his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. The Veteran is not shown to have been evaluated by a vocational specialist nor has any explanation been provided as to why such examination was not warranted. A remand by the Board confers on a veteran or other claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). It is noted, however, that VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Board finds that additional development is required prior to appellate review. The matters are REMANDED for the following action: 1. Obtain copies of all VA treatment records pertinent to the issues remaining on appeal. Appropriate action must be taken to obtain copies of the Veteran’s audiology evaluations on May 18, 2017, and June 19, 2018. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disability, for any identifiable period of time since July 29, 2009. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including a February 1977 report of a history of depression or excessive worry. The examiner must also address whether any such disorder underwent an incremental increase in disability, regardless of its permanence, due to the service-connected hallux valgus with degenerative joint disease of the first metatarsophalangeal joint disabilities. The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. 3. Schedule the Veteran for a VA evaluation by a vocational specialist or other applicable examiner to ascertain and evaluate whether his service-connected disabilities prior to July 23, 2019, rendered him unable to secure or follow a substantially gainful occupation. The examiner must address the impact of the service-connected disabilities (including Meniere’s disease, right and left leg radiculopathy, degenerative changes of the right and left hips, degenerative arthritis of the spine with intervertebral disc syndrome, and status post osteochondrosis with left hip scar) on his ability to secure or follow a substantially gainful occupation consistent with his education and occupational experience. When addressing the functional limitations, the examiner should not consider the effects of age or any nonservice-connected disabilities. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Jennifer A. Flynn Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Douglas 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.