Citation Nr: 21026823 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-42 098 DATE: May 4, 2021 REMANDED Entitlement to a rating higher than 10 percent for benign paroxysmal positional vertigo (BPPV) (claimed as chronic motion sickness) for the period prior to February 6, 2021 is remanded. Entitlement to a total rating due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Court of Appeals for Veterans Claims (Court) vacated the Board's initial decision in this case and remanded it to the Board for further review. See 06/17/2020 CAVC Decision. In compliance with the remand, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development. See 10/06/2020 BVA Decision. The AOJ complied with the remand directives, but on further review the Board deems another remand is necessary. 1. Entitlement to a rating higher than 10 percent for BPPV (claimed as chronic motion sickness) for the period prior to February 6, 2021 is remanded. The Board remanded for a current examination, which the AOJ arranged as directed. See 02/23/2021 C&P Exam, 3rd Entry. Upon receipt of the examination report, the AOJ granted an increased rating from 10 to 30 percent, effective February 6, 2021, which is the maximum schedular rating for the disability. See 03/27/2021 Rating Decision Narrative; 38 C.F.R. § 4.87, Diagnostic Code 6204. Since the Court vacated the May 2019 Board decision, the rating for the BPPV for the entire rating period is still in issue. Pursuant to the Joint Motion for Remand (JMR), the Court determined that the Board did not provide adequate reasons and bases for determining that the evidence of record did not meet the criteria for occasional staggering, which is required for the maximum rating. In addition to comments in the examination reports, the written submissions by the Veteran's wife, and in his hearing testimony, both the Veteran and his wife have used the term, "staggering," when describing the Veteran's symptoms but with minimal description. The Board's concern is that some of the actions that the Veteran and his wife describe can be due to dizziness as well as staggering. The rating criteria do not define the term for purposes of the diagnostic code. A dictionary definition includes to reel from side to side: totter: to move on unsteadily. See Merriam-Webster Dictionary. Generally, the Board is at liberty to use a recognized medical dictionary to define a term, if the definition is not material to the Board's disposition of the appeal. 38 C.F.R. § 20.908(b)(2). Since the definition of staggering is material in this case, the Board finds that another examination is necessary. Id. 2. Entitlement to a total rating due to service-connected disabilities (TDIU) is remanded. This issue was remanded in the May 2019 Board decision, so it was not before the Court. It still was on remand at the time of the October 2020 remand. As directed in the May 2019 remand, the AOJ referred the matter to the Director, Compensation Service (Director) for consideration of a TDIU on an extraschedular basis. The Director denied a TDIU. See 10/14/2020 VA Memo. However, as the evidence which may be attained on remand could make the Veteran eligible for Schedular consideration at an earlier point in the rating period, this matter will be deferred. The matters are REMANDED for the following action: 1. Send the claims file to the examiner who conducted the February 2021 examination, or an equally qualified clinician if he/she is no longer available. Ask the examiner to review the Veteran's 2013 VA examinations for migraine headaches and ear conditions (03/27/2013 and 03/30/2013 VA Examinations); the May 2013 examination (05/01/2013 VA Examination); the Veteran's wife's statement (05/02/2013 Correspondence); portions of the Veteran's hearing testimony before the AOJ Decision Review Officer, or the entire transcript if deemed necessary (10/28/2014 Hearing Testimony, P. 5-6); and, the Veteran's testimony at his Board hearing (02/04/2019 Hearing Transcript, P. 4, 10). (Continued on the next page) Based on the review of the above identified evidence, ask the clinician to opine if it is at least as likely as not (at least a 50 percent probability) that it shows that the Veteran experienced occasional staggering due to his BPPV vice dizziness. A complete explanation must be provided. If the clinician answers in the affirmative, then identify the evidence on which the positive opinion is based for purposes of establishing an effective date. 2. After the above is complete, the AOJ shall readjudicate the BPPV rating for the period prior to February 6, 2021 and the TDIU issue as necessary. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. T. Snyder 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.