On appeal from the Department of Veterans Affairs (VA) Regional Office in Pittsburgh, Pennsylvania
THE ISSUES
1. Entitlement to an increase evaluation in excess of 10
percent for scars, the residuals of head trauma.
2. Entitlement to an increased evaluation in excess of 10
percent for headaches, residuals of head trauma.
3. Entitlement to a total rating based on individual
unemployability due to service-connected disabilities (TDIU).
REPRESENTATION
Appellant represented by: Sean A. Ravin, Attorney at Law
WITNESSES AT HEARING ON APPEAL
C.N. Bash, M.D.
ATTORNEY FOR THE BOARD
P. Boominathan, Associate Counsel
INTRODUCTION
The veteran had active service from January 1971 to February
1973.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of rating decisions of the Department of Veterans
Affairs (VA) Regional Office (RO) in Pittsburgh,
Pennsylvania.
In August 2006, the veteran had a hearing before the
undersigned Acting Veterans Law Judge. A transcript of the
hearing is associated with the claims file.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
Though the Board regrets any additional delay in this appeal,
a remand is required. In the Board's December 2004 remand,
the RO was specifically directed to consider whether this
case should be forwarded to the Director of the VA
Compensation and Pension Service for extra-schedular
consideration. In the January 2006 rating decision and
supplemental statement of the case (SSOC), issued after the
December 2004 Board remand, there is no discussion of extra-
schedular consideration.
Additionally, the veteran has reported that tinnitus,
vertigo, and hearing loss are residuals from the in-service
head injury. October 2004 and September 2005 letters from
Dr. Bash indicate that these symptoms/conditions are
secondary to the major head trauma in 1972 because the record
does not provide a more likely etiology. The December 2004
Board remand stated that the VA examiner should identify all
clinical manifestations of the head injury, and specifically
mentioned hearing loss and dizziness. Though the March 2005
VA examiner noted that the veteran wore a hearing aid, the
examiner did not state if this condition was the residual of
the in-service head injury.
The United States Court of Appeals for Veterans Claims
(Court) has held that a remand by the Board confers on the
veteran or other claimant, as a matter of law, the right to
compliance with the remand order. Stegall v. West, 11 Vet.
App. 268, 271 (1998). Therefore, under the holding in
Stegall, this case must be remanded again to ensure full
compliance with the Board's December 2004 remand.
The Board notes that a March 2004 VA treatment record shows
that syncopal episodes were not epileptic in nature. The
March 2005 VA examiner found that the syncopal episodes were
the residuals of the in-service head injury, but the examiner
did not state if the these episodes were epileptic or
seizure-like in nature. In a September 2006 letter, Dr. Bash
reported that the syncope/blackouts were a form of seizure.
Therefore, it is unclear if these episodes are epileptic or a
form of seizure. Additionally, it is unclear if these
syncopal episodes are related to the headaches or independent
residuals of the in-service injury.
The Court has held that when a determination on one issue
could have a significant impact on the outcome of another
issue, such issues are considered inextricably intertwined
and VA is required to decide those issues together. Harris v.
Derwinski, 1 Vet. App. 180 (1991). The claim of entitlement
to a TDIU requires consideration of the effect on
employability of all service-connected disabilities. The
determination regarding the remanded issues could impact the
veteran's TDIU claim. The Board therefore finds these issues
to be inextricably intertwined. Thus, adjudication of the
TDIU claim will be held in abeyance pending further
development of the veteran's claims.
Accordingly, the case is REMANDED for the following action:
1. Obtain a medical opinion with respect
to the residuals of the in-service head
injury. The claims folder and a copy of
this REMAND must be made available to and
reviewed by the examiner prior to the
examination. If answering any question or
making any determination would require the
examiner to resort to speculation, the
examiner should so state. The examiner is
asked to express an opinion to the
following questions, as appropriate:
(a) Is it likely, at least as likely
as not (a 50 percent probability),
or unlikely that tinnitus, hearing
loss, and vertigo are due to the in-
service head injury?
(b) Given the opinions of record,
the Board has accepted that the
syncopal episodes experienced by the
veteran are the result of his
service-connected head injury. In
this regard, please state whether
the syncopal episodes are analogous
to a seizure disorder or epileptic
in nature. If the syncopal episodes
are epileptic in nature, describe
the nature of these episodes,
frequency, and symptoms.
2. After undertaking any other development
deemed essential in addition to that
specified above, the RO/AMC should re-
adjudicate the veteran's claim. If the
benefit sought on appeal remains denied, the
veteran and his attorney should be provided
a Supplemental Statement of the Case (SSOC).
The SSOC must notify the veteran of all
relevant actions taken on his claim for
benefits, and summarize the evidence and
discussion of all pertinent regulations to
include the provisions of 38 C.F.R. § 3.655.
The RO should specifically consider whether
this case should be forwarded to the
Director of the VA Compensation and Pension
Service for extra-schedular consideration.
The veteran and his attorney should also be
afforded the opportunity to respond to that
SSOC before the claim is returned to the
Board.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
M.A. HERMAN
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), 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) (2006).
