Citation Nr: 9922448 Decision Date: 08/10/99 Archive Date: 08/24/99 DOCKET NO. 96-29 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an increased rating for tinnitus with Eustachian tube dysfunction due to barotrauma, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P.B. Werdal, Counsel INTRODUCTION The veteran served on active duty from January 1981 to December 1989. REMAND This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in September 1995 denying service connection for hearing loss the veteran attributes to his service-connected tinnitus, rated 10 percent disabling since January 1990. The veteran also claimed that he has lost the ability to fly in airplanes due to the barotrauma that caused his tinnitus, and sought compensation for that loss but the September 1995 rating decision did not address the arguments regarding the veteran's asserted loss of the ability to fly. At the time of that rating decision, the veteran was also pursuing several other claims for Department of Veterans Affairs (VA) benefits, including service connection for right knee and left shoulder disabilities, and increased ratings for service-connected right finger or hand, ankle and wrist disabilities. Those other claims were in various stages of development, and the veteran had perfected appeals of several of them. The veteran commenced this appeal by filing a Notice of Disagreement in November 1995 in which he expressed his disagreement with VA's denial of his claim for loss of the ability to fly. In a November 1996 rating decision the RO revised the grant of service connection for tinnitus to include tinnitus with Eustachian tube dysfunction due to barotrauma, and continued the 10 percent rating, and the veteran again expressed his disagreement in December 1996. He was provided a Statement of the Case explaining that a rating of more than 10 percent was not warranted because the evidence did not suggest he experienced severe symptomatology with tinnitus, dizziness and occasional staggering. The veteran perfected his appeal in June 1997, and requested an increased rating on an extraschedular basis due to the fact that his intolerance of swift changes in barometric pressure severely limits his daily activities, prevents him from flying and therefore severely hampers his employment opportunities. Following additional development, including several VA compensation and pension examinations, in November 1998 the veteran's claim for a higher rating for the residuals of barotrauma remained denied, as did the other claims for increased ratings for right finger, right ankle and right wrist disabilities, and the claim for service connection for hearing loss in the right ear. The claim of entitlement to service connection for defective hearing of the left ear as secondary to service-connected tinnitus with Eustachian tube dysfunction secondary to barotrauma was granted, however, and the disability was assigned a noncompensable rating. At that time the RO also concluded clear and unmistakable error was committed in its prior decision not to grant the bilateral factor for the veteran's service-connected calluses, and accordingly assigned the bilateral factor for those disabilities effective from January 1990. The veteran was provided a Supplemental Statement of the Case (SSOC) and rating decision in November 1998 explaining the bases for those determinations. In December 1998, the RO received a VA Form 21-4138, Statement in Support of Claim, in which he wrote: "Issue: Inability to fly/Sudden pressure changes. The only issue I am appealing is my loss of ability to fly/sudden pressure changes." He then went on to detail problems he suffers when subjected to sudden pressure changes, including when traveling on a subway system, in skyscrapers, and when driving through a fast moving storm. The symptoms he described included being in "a daze," "getting sick while traveling in an elevator" and "sudden dizziness." Based on the foregoing, the Board finds the veteran has withdrawn his appeal as to all issues except the claim of entitlement to an increased rating for tinnitus residuals of barotrauma to include consideration of the symptoms that result in the veteran's asserted inability to fly. 38 C.F.R. § 20.204. Upon receipt of the VA Form 21-4138 dated in December 1998, an SSOC was not prepared, and it does not appear the RO has yet considered that evidence. In February 1999 the RO advised the veteran that his appeal was being forwarded to the Board, but made no mention of having received and considered the December 1998 evidence. Argument submitted on the veteran's behalf in May 1999 indicated remand was appropriate in this case, as the RO had not addressed the evidence submitted by the veteran in December 1998, and the veteran had not waived first consideration of that argument by the RO. VA regulations require that a SSOC will be furnished to the appellant and his representative when additional pertinent evidence is received after the most recent SSOC was issued. 38 C.F.R. § 19.31. VA regulations also require the Board to remand a matter to cure a procedural defect. 38 C.F.R. § 19.9. Accordingly, this matter is REMANDED for the following action: The RO should consider the evidence submitted by the veteran on the VA Form 21-4138 received in December 1998, and take appropriate action with regard to the veteran's claim of entitlement to a disability rating on an extraschedular basis that contemplates the symptoms and manifestations he has described and has asserted impair his daily activities, including travel and employment, in accordance with the provisions of 38 C.F.R. § 3.321(b)(1998). The RO should undertake any additional development that it deems is warranted. Once such action is completed, a SSOC should be furnished to the veteran and his representative, if any, addressing the evidence not addressed in the SSOC dated in November 1998. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. While this case is in remand status, the veteran is free to submit additional evidence and argument on the question at issue. See Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21- 1, Part IV, paras. 8.44-8.45 and 38.02-38.03. Michael A. Pappas Acting Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991& Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1998).