Citation Nr: 21026038 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-46 204 DATE: April 29, 2021 REMANDED Entitlement to a disability in excess for residuals of right knee ACL tear is remanded. Entitlement to a compensable disability rating for mild hiatal hernia and pyrosis is remanded. Entitlement to a disability rating in excess of 20 percent for seizure disorder is remanded. Entitlement to a compensable disability rating for left varicose veins is remanded. Entitlement to a compensable disability rating for restless leg syndrome. Entitlement to a disability rating in excess of 30 percent for generalized anxiety disorder is remanded. Entitlement to a disability rating in excess of 30 percent for migraine headaches is remanded. Entitlement to service connection for vertigo and dizziness disorder, to include on a secondary basis is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Army from January 2008 to December 2010. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran and his spouse testified at a Board hearing. The transcript of that proceeding has been associated with the Veteran’s claims file. Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. REASONS FOR REMAND The Veteran asserts that each of his respective service-connected disabilities, as iterated above, have worsened in severity and that the assigned disability rating do not contemplate his symptoms adequately. The Veteran contends that a “distinct” vertigo and dizziness disorder was incurred in, aggravated by, or otherwise attributable to, service or increased in severity beyond its natural progression by, service-connected seizure disorder, generalized anxiety disorder, and/or migraine headaches. Entitlement to a disability in excess for residuals of right knee ACL tear, to include instability and left knee pain Entitlement to a compensable disability rating for mild hiatal hernia and pyrosis disorder To date, the RO has not sent an SSOC addressing VA-developed medical evidence to include October 2018 VA knee and intestinal conditions examination reports. These respective examination reports primarily address the left knee and lower gastrointestinal disorders but contain findings that are relevant to the right knee and upper gastrointestinal claims. A review of the record fails to disclose that the Veteran has waived RO consideration of VA-developed medical evidence. Therefore, a remand of these two issues is necessary for the issuance of an SSOC, and the Veteran will be provided with an opportunity to respond to this medical evidence—even if such evidence is collateral. 38 C.F.R. § 19.37(b). Entitlement to a disability rating in excess of 20 percent for seizure disorder is remanded. Entitlement to a disability rating in excess of 30 percent for generalized anxiety disorder is remanded. Entitlement to a compensable disability rating for left varicose vein is remanded. Entitlement to a compensable disability rating for restless leg syndrome. Entitlement to a disability rating in excess of 30 percent for migraine headaches is remanded. At the November 2019 Board hearing, the Veteran testified as to the worsening of each of these respective disabilities. The Veteran stated that he now experiences 15-20 seizure episodes every few years that result in hospitalizations; and this endorsed increase in seizures exacerbates symptoms of generalized anxiety disorder. The Veteran stated that he now experiences numbness in his legs and involuntary twitching, to such a degree that he periodically requires the use of a crutch. And, the Veteran stated that his service-connected migraine headaches have become light sensitive and sound sensitive—to a debilitating degree. See, e.g., November 21, 2019 Hearing Transcript, pp. 2-14. The Veteran’s is competent to report these discernable symptoms. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Veteran was last afforded VA examinations for these service-connected disabilities in 2014—close to 7 years ago. An examination of the Veteran does not become outdated after any arbitrary amount of time. The duty to get a new examination is triggered only when the available evidence indicates that the previous examination no longer reflects the current state of the Veteran’s disability. 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); VAOPGCPREC 11-95 (1995). Here, the Veteran’s testimony indicates worsening that triggers the need for VA examinations to assess the current severity of these respective service-connected disabilities. See 38 C.F.R. § 3.159 (c)(4)(i); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Entitlement to service connection for vertigo and dizziness disorder, to include as secondary to seizure disorder, generalized anxiety disorder, and/or migraine headaches At the Board hearing, the Veteran testified that episodes of vertigo and dizziness coincide with seizure, migraine headaches, and a changing roster of medications for the brain (presumably physiologically and psychologically). See, e.g., November 21, 2019 Hearing Transcript, pp. 6-7. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (1) contains competent evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that an event, injury, or disease occurred in service or certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) indicates that the disability or symptoms may be associated with the established event, injury or disease in service or with another service-connected disability. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. Id. The Veteran’s testimony indicates that his contended vertigo and dizziness disorder may be associated with established disabilities and diseases. As such, the need for a VA examination has been triggered. The matters are REMANDED for the following actions: 1. Provide the Veteran an SSOC on the claims of entitlement to a disability in excess for residuals of right knee ACL tear and entitlement to a compensable disability rating for mild hiatal hernia and pyrosis disorder. The Board herein intimates no opinion as to the outcome of these issues. 2. Obtain and associate with the claims file all outstanding VA treatment records. 3. After obtaining the necessary authorization from the Veteran, obtain and associate with the claims file any additional identified and relevant records addressing any and all issues on appeal. All attempts to secure these records must be documented in the record. If any requested records are unavailable, the Veteran should be notified of such in accordance with 38 C.F.R. § 3.159(e). 4. Arrange for VA examinations to assess the current severity of service-connected seizure disorder, generalized anxiety disorder, left varicose vein, restless leg syndrome; right knee, mild hiatal hernia and pyrosis, and migraine with appropriate clinician(s). The clinician(s) should review the claims file and indicate that such review has taken place within the body of each examination report. Clinician(s) must perform all necessary testing and interviewing. 5. Arrange for an examination for the Veteran’s contended vertigo and dizziness disorder with an appropriate clinician. The clinician should review the claims file and indicate that such review has taken place within the body of the examination report. Upon the rendering of a diagnosis of a vertigo and dizziness disorder (or analogous disease entity), if any, the clinician is asked to respond to the following: a. Whether it is at least as likely as not (50 percent or more) that the Veteran’s vertigo and dizziness disorder (or analogous disease entity), if any, was incurred in, aggravated by, or otherwise attributable to, service? AND b. Whether it is at least as likely as not that the Veteran’s vertigo and dizziness disorder (or analogous disease entity), if any, was proximately caused by, service-connected seizure disorder, generalized anxiety disorder, and/or migraine headaches? AND c. Whether it is at least as likely as not that the Veteran’s vertigo and dizziness disorder (or analogous disease entity), if any, was aggravated by, service-connected seizure disorder, generalized anxiety disorder, and/or migraine headaches? The Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology and functional limitations, must be acknowledged and considered in formulating any opinion. Should a clinician reject the Veteran’s reports, she/he must provide an explanation for such rejection. Complete, clearly-stated rationales for the conclusions reached must be provided. Explanations are required that consider the record and pertinent medical principles and the clinician’s rationale should include citation to pertinent evidence and/or medical principles relied upon to form all opinions. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.