Citation Nr: 23037726 Decision Date: 07/07/23 Archive Date: 07/07/23 DOCKET NO. 23-00 171 DATE: July 7, 2023 REMANDED Entitlement to an initial disability rating in excess of 30 percent for the service-connected vertigo, to include whether the Veteran has Meniere's disease, is remanded. Entitlement to an effective date earlier than March 25, 2010, for the award for service connection for vertigo is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from March 1968 to August 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2016 and October 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a January 2023 decision, the Board remanded the issue of entitlement an initial rating in excess of 30 percent for the service-connected vertigo, to include whether the Veteran has Meniere's disease, to the RO for issuance of a Statement of the Case (SOC). In February 2023, the Agency of Original Jurisdiction (AOJ) issued an SOC addressing this matter and the Veteran timely appealed the matter to the Board. See March 2023 VA Form 9. Therefore, the matter is properly before the Board in this decision. As an initial matter, and as discussed further below, the issue of entitlement to a TDIU has been raised by the record as part and parcel of the Veteran's initial increased rating claim for his service-connected vertigo. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the issue of entitlement to a TDIU is also before the Board in this decision. 1. Entitlement to an initial disability rating in excess of 30 percent for the service-connected vertigo, to include whether the Veteran has Meniere's disease Although the Board regrets the delay, additional development of the Veteran's claim is warranted prior to adjudication of the claim. First, in January 2023 Correspondence, the Veteran stated that he was receiving Social Security Administration (SSA) income. As it is unclear whether the Veteran is receiving such income based upon his disabilities and as there are no SSA records in the claims file, a remand is warranted for the AOJ to attempt to obtain any outstanding SSA medical records. Second, the Board finds that a remand is warranted for further VA medical opinions to address all manifestations of the Veteran's service-connected disability. In this regard, the February 2023 VA examination reflects that the Veteran experienced nausea and sleep disturbance as attributed to his service-connected vertigo. The Veteran has also provided correspondence that his dizziness has a psychological impact on him. See December 2017 VA Form 21-4138 (resubmitted statement dated November 2006). However, it is unclear whether these are symptoms of his service-connected vertigo or symptoms of a separate and distinct disorder or disorders that are caused or aggravated by his service-connected vertigo. Additionally, the February 2023 VA examiner did not directly address whether the Veteran has Meniere's disease based on all the evidence of record. Therefore, to more accurately assess the nature and severity of the symptoms associated with the Veteran's service-connected vertigo and to clarify whether there is evidence of Meniere's disease during the appeal period, a remand is warranted for addendum VA opinions. 2. Entitlement to an effective date earlier than March 25, 2010, for the award for service connection for vertigo By way of background, in a July 2016 rating decision, the AOJ granted service connection for vertigo, claimed as Meniere's disease, and assigned a 10 percent initial rating effective March 25, 2010. In February 2017, the Veteran submitted a timely Notice of Disagreement (NOD) where he discussed his disagreement with the July 2016 rating decision and stated that his disability was a service connection problem since 1968. As the Veteran expressed his disagreement with the date of the award for service connection on the February 2017 NOD form, the Board finds that the Veteran's February 2017 NOD also constitutes a timely NOD as to the issue of entitlement to an effective date earlier than March 25, 2010, for the award of service connection for vertigo. However, the AOJ has not issued a SOC with respect to this issue, which is the next step in the appellate process. See 38 C.F.R. § 19.29; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Consequently, this matter must be remanded to the RO for the issuance of an SOC. The Board emphasizes that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed if the Veteran wishes to continue his appeal. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202. On remand, the Veteran will have the opportunity to file a timely substantive appeal if he wishes to perfect an appeal as to this matter. 3. Entitlement to a TDIU If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating, is whether TDIU is warranted. Rice, 22 Vet. App. at 447. Here, a December 2015 private treatment record reflects that the Veteran has a history of ringing and roaring in his ears and that he reported a loss of balance that progressively worsened over the past 15 years. The record further documents that these two activities caused the Veteran to stop working in 2013. The February 2023 VA ear conditions examination also shows that the Veteran is currently retired but that his service-connected vertigo has a functional impact on his ability to work in that his symptoms cause difficulty with computer work, type writing, and driving, and result in the need to miss work as well as tardiness or frequent work breaks, which decrease productivity. These records suggest an allegation of unemployability due to the Veteran's service-connected disabilities. Therefore, the issue of entitlement to a TDIU is also on appeal under Rice. See id. The Veteran has not been provided with a proper duty-to-assist notice letter for a TDIU claim, nor has any development been accomplished with respect to this claim. Accordingly, the Veteran must be provided with this requisite notice and the claim must be adjudicated in the first instance upon remand. Additionally, as the Veteran currently does not meet the schedular criteria for entitlement to a TDIU, the issue is inextricably intertwined with his remanded increased rating claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. The last VA treatment of record is dated June 2016. 2. Obtain and associate with the claims file any records that are in possession of the SSA that are pertinent to the claims at issue. Make a notation in the claims file of all attempts to obtain these records and all responses received. 3. Provide the Veteran with notice of the requirements for entitlement to a TDIU, including a VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability), and invite him to submit this form and any additional evidence in support of the claim. 4. Provide the Veteran with another opportunity to identify and/or submit any outstanding private treatment records relevant to his claims. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. 5. Obtain addendum medical opinions from an appropriate medical professional(s) to address the Veteran's claim for an initial disability rating in excess of 30 percent for the service-connected vertigo, to include whether the Veteran has Meniere's disease. If the examiner(s) determines that he or she cannot respond to the Board's directives as set forth below without additional examination of the Veteran, the Veteran should be afforded such an examination. The claims file, to include a copy of this Remand, must be made available to and be thoroughly reviewed by the VA examiner(s). The VA examiner(s) is(are) asked to respond to the following: (a) Provide an opinion as to whether it is at least as likely as not (likelihood is approximately balanced or nearly equal, if not higher) that the Veteran has or had a diagnosis of Meniere's disease during the pendency of the appeal. Why or why not? (b) If the VA examiner finds that the Veteran does not have a diagnosis of Meniere's disease during the pendency of the appeal, how does that reconcile with the May 2010 VA treatment record assessing the Veteran with Suspect Meniere's, the VA medication list indicating that the Veteran was prescribed Hydrochlorothiazide for Meniere's and blood pressure in 2010, and the Veteran's current symptoms and disabilities of vertigo, hearing loss, and tinnitus? (c) If the VA examiner finds that the Veteran has a diagnosis of Meniere's disease, provide an opinion as to whether it is at least as likely as not (likelihood is approximately balanced or nearly equal, if not higher) that such (1) had an onset during the Veteran's active service; (2) is otherwise related to the Veteran's active service; (3) is caused by the Veteran's service-connected disabilities; OR (4) is aggravated by the Veteran's service connected disabilities. In rendering his or her opinion, the examiner should address BOTH the causation and aggravation questions in his or her rationale. If aggravation is found, the examiner should quantify the degree of aggravation, if possible and state whether there was a medically ascertainable increase in disability regardless of permanence. (d) Provide an opinion as to whether the Veteran's complaints of sleep disturbance, psychiatric issues, and nausea are due to a definite diagnosis (or diagnoses) of a disability (or disabilities) that is(are) separate and distinct from his already service-connected vertigo OR whether such complaints are merely a symptom of his service-connected vertigo. If the VA examiner determines that additional examination(s), to include a psychological examination, of the Veteran is(are) necessary to provide a reliable opinion, such examination(s), should be provided. ? (e) If any specific diagnosis(es) related to the Veteran's sleep disturbance, psychiatric, and nausea complaints is(are) identified, provide an opinion as to whether it is at least as likely as not (likelihood is approximately balanced or nearly equal, if not higher) that such is (1) caused by OR (2) aggravated by the Veteran's service-connected vertigo. In rendering his or her opinion, the examiner should address BOTH the causation and aggravation questions in his or her rationale. If aggravation is found, the examiner should quantify the degree of aggravation, if possible and state whether there was a medically ascertainable increase in disability regardless of permanence. The VA examiner must provide a complete rationale for all opinions expressed. In this regard, a detailed discussion of the relevant facts and medical principles involved would be of considerable assistance to the Board. If any opinion cannot be provided without resorting to mere speculation, the VA examiner should provide a complete explanation stating why, to include explaining whether the inability to provide a more definitive opinion is the result of a need for additional information or that the examiner has exhausted the limits of current medical knowledge in providing answers to the questions. 6. Furnish to the Veteran and his representative an SOC with respect to the matter of entitlement to an effective date earlier than March 25, 2010, for the award of service connection for vertigo. Afford the Veteran and his representative the appropriate opportunity to file a substantive appeal to perfect an appeal of the issue. The Veteran is reminded that to obtain appellate review of any matter not currently in appellate status, a timely appeal must be perfected for that particular claim. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Purcell, Amanda 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.