Citation Nr: 21003747 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 13-33 861 DATE: January 22, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for residuals, brain tumor surgery with vertigo of central origin is remanded. Entitlement to an initial rating in excess of 10 percent for deviated nasal septum associated with residuals, brain tumor surgery with vertigo of central origin is remanded. Entitlement to an initial compensable rating for chronic sinusitis associated with residuals, brain tumor surgery with vertigo of central origin is remanded. Entitlement to an initial compensable rating for allergic rhinitis associated with residuals, brain tumor surgery with vertigo of central origin is remanded. Entitlement to an initial rating in excess of 10 percent for blepharospasms, partial paralysis of the 5th facial dermatome associated with residuals, brain tumor surgery with vertigo of central origin is remanded. Entitlement to an initial rating in excess of 10 percent for blepharospasms, partial paralysis of the 7th facial dermatome associated with residuals, brain tumor surgery with vertigo of central origin is remanded. Entitlement to an initial rating in excess of 10 percent for trismus associated with residuals, brain tumor surgery with vertigo of central origin is remanded. Entitlement to an initial compensable rating for migraine including migraine variants associated with residuals, brain tumor surgery with vertigo of central origin is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1974 to August 1978 and April 1982 to October 1992. In April 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In January 2018 and September 2019, the Board remanded the claim for further development. In August 2012, the agency of original jurisdiction (AOJ) granted the Veteran’s claim for service connection for residuals, brain tumor and awarded 10 percent effective March 6, 2012. In October 2012, the AOJ granted the Veteran’s claim for service connection for benign paroxysmal positional vertigo and awarded a noncompensable rating effective March 6, 2012. In February 2017, the Veteran’s vertigo rating was increased to 10 percent effective March 6, 2012. In August 2020, the AOJ proposed to sever service connection for the separate 10 percent evaluation for residuals, brain tumor surgery. In October 2020, the AOJ effectuated the severance. The AOJ stated that the August 2012 rating decision erroneously granted a 10 percent evaluation under diagnostic code 8003 to incorporate any residuals under the minimum evaluation for benign brain growths while also granting separate evaluations for compensable residuals that totaled 10 percent or more. The AOJ stated that this was a clear and unmistakable error because the Veteran was granted 10 percent evaluations for the same symptoms under two or more diagnostic codes. The AOJ incorporated the issue of brain tumor surgery with the evaluation for the vertigo condition identified as one of the residuals of your brain tumor surgery. As such, the issue was recharacterized as entitlement to an initial rating in excess of 10 percent for residuals, brain tumor surgery with vertigo of central origin. In his November 2020 Appellate Brief, the Veteran, through his representative, requested examinations to determine the current severity of the Veteran’s disabilities. The representative stated that the April 2018 and June 2019 examinations do not adequately address the nature and severity of the Veteran’s residuals of a brain tumor. The Board notes that the Veteran’s last examination was in April 2018 with an addendum regarding the Veteran’s ear disability in June 2019. While the Board is not required to direct a new examination simply due to the passage of time, a new examination is appropriate when the claimant asserts that the disability in question has undergone an increase in severity since the last examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). As such, the Board finds that a remand is necessary to ascertain the current severity of the Veteran’s residuals, brain tumor surgery with vertigo of central origin and the other residuals to include chronic sinusitis; allergic rhinitis; deviated nasal septum; blepharospasms, partial paralysis of the 5th and 7th facial dermatome; trismus; and migraine with migraine variants. The matters are REMANDED for the following action: 1. Obtain and associate all outstanding VA treatment records with the claims file. 2. Thereafter, schedule VA examination(s) to determine the current severity of the Veteran’s residuals, brain tumor surgery with vertigo of central origin and the other residuals to include chronic sinusitis; allergic rhinitis; deviated nasal septum; blepharospasms, partial paralysis of the 5th and 7th facial dermatome; trismus; and migraine with migraine variants. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner(s) in conjunction with the examination. The examination report(s) must include a notation that this record review took place. All indicated tests and studies must be conducted. The supporting rationale for all opinions expressed must be provided. 3. Thereafter, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, furnish the Veteran and his representative a Supplemental Statement of the Case and afford them the opportunity to respond before the file is returned to the Board for further consideration. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore 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.