Citation Nr: 1007274 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 03-02 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for a disability manifested by vertigo, to include an underlying vestibular disorder, to include as secondary to service-connected hearing loss and/or tinnitus. REPRESENTATION Appellant represented by: V. Girard-Brady, Esq. ATTORNEY FOR THE BOARD J. T. Sprague, Associate Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps from July 1966 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The Case has been previously adjudicated by the Board, and its decision was vacated by the U.S. Court of Appeals for Veterans Claims (Court) on the basis of a joint motion for remand between counsel for the Secretary of VA and the appellant. The case has been remanded to effectuate the Court order; however, additional development is required before final adjudication can occur. 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 The Veteran contends that he is entitled to service connection for a vestibular disorder, manifested by vertigo, and that the condition had causal origins in service or, alternatively, is related to service-connected tinnitus and hearing loss (either causally or by aggravation) which was incurred as a result of in-service noise exposure. This claim has a rather lengthy history, and initially, the Board denied the claim for service connection in a 2006 decision on the basis that the medical evidence did not support a finding that the current vestibular disorder was caused by service, or that service-connected tinnitus/hearing loss played any role in the onset of the claimed condition. The Board placed a great deal of reliance on an addendum opinion authored in August 2005. This written opinion noted that it was "impossible to say when dizziness started and indeed the evidence seems to point to the fact that [it] did not start in 1968 or 69." The opinion stated that "even if it did start at that time, one could not prove a closer relationship with the hearing loss and tinnitus caused by noise." The opinion further went on to state that the Veteran had a negative MRI, and that although an ENG had not been performed, even if the cause of vertigo was determined to be inner-ear related (as opposed to of central origin), it would still "not in anyway approve or dis[prove] any connection with [the Veteran's] service or determine when this started." Despite this rather unequivocal opinion, which was based on a thorough claims file review and was well-rationalized in coming to a conclusion, the Secretary of Veterans Affairs and counsel for the appellant posited a joint motion for remand with the U.S. Court of Appeals for Veterans Claims (Court) on the basis that the 2005 opinion was not based on a physical examination. The Court vacated the Board's denial, and the Board remanded the claim so that a contemporaneous medical examination addressing etiology could be afforded. The returned opinion, dated in April 2009, stated that the Veteran has had complaints of vertigo only for the last 15-20 years, and even with a March 1968 in-service annotation regarding dizziness, there was no way to tell if current vertigo was related to a specific in-service event without resort to speculation. The examiner stated that there was no incident in service that caused vertigo, and that the March 1968 annotation of dizziness does not necessarily correlate with the current vertigo, which the examiner also noted to not be related to tinnitus or hearing loss, as "there is no evidence" (presumably in currently understood medical theory) "that these disorders cause or aggravate vertigo." The Veteran and his representative have taken exception with the April 2009 examination. First, the Veteran alleges that he has experienced vertigo for more than 15-20 years, and that service connection should be allowed based on continuity of symptomatology from his in-service episode of dizziness in 1968. As a layperson, the Veteran is competent to report on the existence of symptoms, and thus his allegations of episodes of dizziness since 1968 must be conceded. Indeed, unless there is a question regarding the credibility of the individual in question, a lay person is generally competent to assess what comes to them through their senses, including feelings of dizziness. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Essentially, it is the Veteran's contention that the examiners incorrectly focused on an inability to attribute a current vertigo condition with a single event in service, and thus they ignored the alleged continuous complaints of dizziness from 1968 onward. There is thus a pertinent medical question that has been raised in disagreement with the 2009 examination which requires expert clarification. The 2009 examiner did not discuss service connection based on a continuity of symptomatology, and incorrectly assessed the Veteran as having had complaints of dizziness only since the early 1990s. Thus, additional medical clarification is needed, and the claim must be sent to the examiner who conducted the 2009 examination, if available, for an addendum opinion regarding continuity of symptoms. If, however, that examiner is not available, the Veteran should be scheduled for a new VA examination addressing any potential etiology of the vertigo disability, to include if the symptoms of a current disorder have been present since service. Accordingly, the case is REMANDED for the following action: 1. The case should be returned to the examiner who conducted the April 2009, if available, for an addendum opinion regarding continuity of symptomatology. Specifically, the examiner should provide an opinion as to whether the noted dizziness in 1968 is at least as likely as not (50 percent probability or greater) the beginnings of a current vestibular disorder manifested by vertigo. The claims file should be reviewed, and it would be a great help if references to medical literature were included to support any opinions reached. If the 2009 examiner is not available, the Veteran should be afforded a new examination, and that examiner should offer an opinion as to whether the Veteran's current disorder, manifested by vertigo, is in any way causally related to any period of active duty, to include noting if symptoms present in 1968 are associated with the current vertigo disorder, and if those symptoms have been continuously present from service to the present. 2. After completion to the extent possible of the directed development, re- adjudicate the Veteran's claim. If the claim remains denied, issue an appropriate supplemental statement of the case and forward the case to the Board for final adjudication. 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. 2009). _________________________________________________ James L. March 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) (2009).