Citation Nr: 21023819 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 19-15 217 DATE: April 21, 2021 REMANDED Entitlement to an initial increased rating for a disability characterized by episodes of dizziness/vertigo, diaphoresis, nausea, ringing in the ears, a lump in the throat, a knot in the stomach, weakness, and seizures, evaluated as 10 percent disabling prior to January 24, 2019, and 20 percent disabling thereafter (including on an extraschedular basis), is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1962 to July 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2018 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). The February 2018 rating decision implemented the order of an April 2017 Board decision granting service connection for a disability characterized by episodes of dizziness/vertigo, diaphoresis, nausea, ringing in the ears, a lump in the throat, a knot in the stomach, and some weakness. The Board notes that the February 2018 rating decision, a March 2019 rating decision and March 2019 statement of the case, and an August 2019 Board remand all characterized the increased rating issue in different ways. A November 2019 memorandum decision from the United States Court of Appeals for Veterans Claims (Court) identified the issue for which service connection was granted as a disability characterized by episodes of dizziness/vertigo, diaphoresis, nausea, ringing in the ears, a lump in the throat, a knot in the stomach, and weakness. The Court then modified part of the decision granting service connection “to reflect the symptom of seizures as a part of the grant of service connection.” The Board has listed the initial increased rating claim to reflect the Court’s classification and modification. The Board has noted multiple letters from the Veteran’s attorney requesting an AOJ notice letter for the March 2019 rating decision. The failure to generate and send this letter has not impacted the Veteran’s claim, as the sole issue addressed in that rating decision was the initial increased rating claim. The Veteran successfully perfected an appeal to the Board, as demonstrated by the prior August 2019 Board remand. Thus, while the AOJ must develop a notice letter for the March 2019 rating decision and provide it to the Veteran, the Board finds that it is appropriate to continue a substantive review of the claims file and remand the two issues below. 1. Entitlement to an initial increased rating for disability characterized by episodes of dizziness/vertigo, diaphoresis, nausea, ringing in the ears, a lump in the throat, a knot in the stomach, weakness, and seizures, evaluated as 10 percent disabling prior to January 24, 2019, and 20 percent disabling thereafter (including on an extraschedular basis), is remanded. Remand is necessary to comply with a directive from the August 2019 Board remand. The prior remand directed the AOJ to obtain a VA medical opinion that discussed “the severity, frequency, and duration” of the symptoms associated with the service-connected disability. Because such an opinion was not provided, remand is necessary to obtain it. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that the Board errs as a matter of law when it fails to ensure compliance with its remand orders). Additionally, the Board notes that VA examinations have not been performed for some of the symptoms. To the extent that the requested opinion cannot be provided for some or all of the characteristic symptoms without a VA examination, such examinations should be provided. Moreover, although the AOJ obtained a December 2020 advisory opinion from the Director of Compensation Service, as directed in the August 2019 Board remand, an additional advisory opinion is needed. The December 2020 advisory opinion did not consider all eight symptoms that characterize the Veteran’s entitlement service-connected disability (dizziness/vertigo, diaphoresis, nausea, ringing in the ears, a lump in the throat, a knot in the stomach, weakness, and seizures). Thus, an additional advisory opinion should be obtained after the new VA medical opinion (and any VA examinations deemed necessary) has been completed. 2. Entitlement to a TDIU is remanded. The Veteran has raised the issue of entitlement to a TDIU. Because a decision on the issue of entitlement to an initial increased rating for disability characterized by episodes of dizziness/vertigo, diaphoresis, nausea, ringing in the ears, a lump in the throat, a knot in the stomach, weakness, and seizures could significantly impact a decision on the issue of entitlement to a TDIU, the two issues are inextricably intertwined. A remand of the claim for TDIU is required The matters are REMANDED for the following action: 1. Provide the Veteran and his representative with a copy of the March 2019 notification letter. 2. Obtain a VA medical opinion from an appropriate clinician regarding the severity, frequency, and duration of the dizziness/vertigo, diaphoresis, nausea, ringing in the ears, lump in the throat, knot in the stomach, weakness, and seizures that characterize the Veteran’s service-connected disability. The opinion should cover the entire period on appeal, from September 2010 to the present. If the clinician determines that an opinion cannot be rendered for one or more of the symptoms without a VA examination, schedule the Veteran for an examination by an appropriate clinician. 3. After obtaining the VA medical opinion and any VA examinations deemed necessary, refer the issue of entitlement to an extraschedular rating for a disability characterized by episodes of dizziness/vertigo, diaphoresis, nausea, ringing in the ears, a lump in the throat, a knot in the stomach, weakness, and seizures to the Director of Compensation Service, pursuant to 38 C.F.R. § 3.321(b). 4. Then, readjudicate the claims.  If the benefits sought remain denied, issue a supplemental statement of the case and, after appropriate time for response, return the matters to the Board if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Ripplinger, 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.