Citation Nr: 0001717 Decision Date: 01/20/00 Archive Date: 01/28/00 DOCKET NO. 94-19 940 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE 1. Entitlement to an increased evaluation for tinnitus, currently evaluated as 10 percent disabling. 2. Entitlement to an increased evaluation for headaches as residuals of a concussion, currently evaluated as 10 percent disabling. 3. Entitlement to an increased (compensable) disability evaluation for service-connected bilateral hearing loss. 4. Entitlement to an increased (compensable) disability evaluation for service-connected perforated tympanic membrane. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD T.J. Kniffen, Associate Counsel INTRODUCTION The veteran had active service from May 1960 to February 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 1992 rating decision from the Seattle, Washington Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for headaches as residuals of concussion, ruptured left tympanic membrane, tinnitus and hearing loss. These disorders were evaluated as one disability and the RO assigned a 10 percent disability rating. In a July 1999 RO decision these disabilities were separately evaluated. 10 percent disability ratings each were assigned to the veteran's service-connected tinnitus and headaches as residuals of a concussion, while noncompensable ratings were assigned to ruptured left tympanic membrane and bilateral hearing loss. In AB v. Brown, 6 Vet. App. 35, 38 (1993), the United States Court of Veterans Appeals held that regarding a claim for an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation. The Court also stated that it follows that such a claim remains in controversy "where less than the maximum available benefits are awarded. In view of this decision, the Board will consider whether the assignment of higher disability ratings is warranted. The Board notes that the veteran relocated from Seattle, Washington to Saipan after he filed his claim. As a result, VA transferred this case to the RO in Honolulu, Hawaii. REMAND In an August 1996 decision the Board remanded this case to the RO for additional development. The Board noted that the 10 percent disability rating that was assigned by the RO in July 1992 was assigned under 38 C.F.R. § 4.124a, Diagnostic Code 8045 (1995), which addressed neurologic and subjective residuals of brain trauma, to include headaches and dizziness. The Board also noted that Diagnostic Code 8045 also refers to consideration of 38 C.F.R. § 4.132, Diagnostic Code 9304 (1995), in cases where residuals of brain disease due to trauma include dementia. In the Board's August 1996 remand, the veteran was to be scheduled for specialist examinations to determine the nature and severity of his service-connected disabilities. The veteran was to be contacted and asked to identify additional medical evidence pertinent to this claim which was not already of record. The Board specifically instructed: "The RO should specifically note its consideration of the provisions of 38 C.F.R. § 3.321(b)." This provision related to extraschedular ratings of service-connected disabilities. In 1998 the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) rendered a decision in Stegall v. West, 11 Vet. App. 268, 271 (1998) which held that the Board is obligated to ensure that the RO complies with its directives, as well as those of the Court. Compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance and a remand of the claim will likely ensue. See Stegall. In November 1999, the veteran's representative noted that the RO has not contacted the veteran with respect to the additional medical evidence and requested a remand for that purpose. The Board has carefully reviewed the evidence of record and determined that additional development of this case as set forth in the August 1996 remand was not accomplished in full by the RO. In addition to the matter of possible additional medical evidence identified by the veteran's representative, the Board notes that it does not appear that its remand instruction with respect to consideration of 38 C.F.R. § 3.321(b) was complied with. To ensure that the Department of Veterans Affairs (VA) has met its duty to assist the veteran in developing the facts pertinent to the claim and to ensure full compliance with due process requirements and Stegall, the case is REMANDED to the (RO) for the following development: 1. After any necessary information and authorization is obtained from the veteran, copies of any post-service treatment records not previously obtained, associated with the veteran's residuals of a concussion with tinnitus, hearing loss, perforated left tympanic membrane and headaches, should be obtained by the RO and incorporated into the veteran's claims folder. 2. The RO should then readjudciate the veteran's claims. The provisions of 38 C.F.R. § 3.321(b) must be addressed by the RO. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. Barry F. Bohan 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) (1999).