Citation Nr: 1033194 Decision Date: 09/02/10 Archive Date: 09/13/10 DOCKET NO. 06-35 874 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for Meniere's syndrome, also claimed as vertigo. 2. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The Veteran served on active duty from October 1978 to April 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal from March 2005 and June 2005 rating decisions rendered by the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA). In a November 17, 2009, decision, the Board denied service connection for Meniere's syndrome/vertigo and for hypertension. 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. ORDER TO VACATE The Board may vacate an appellate decision at any time upon request of the appellant or his representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2009). This case was remanded in April 2009 for additional development. In an October 5, 2009, supplemental statement of the case, the RO informed the Veteran that he had 30 days from the date of the notification to respond. On October 26, 2009, the AMC received additional evidence from the Veteran. That submission is timely, as it is within 30 days of the date on the supplemental statement of the case. The Board received the additional evidence on November 6, 2009. In a November 17, 2009, decision the Board denied the claims listed on the title page. It is clear from the November 2009 Board decision that the undersigned Acting Veterans Law Judge did not have the additional evidence the Veteran had timely submitted following the October 2009 supplemental statement of the case and prior to the Board's November 17, 2009, decision as it was not addressed in the decision. This additional evidence is not duplicative of evidence that had been submitted previously and is relevant to the Veteran's claims of service connection. Thus, the Board must vacate its November 17, 2009, decision because the additional evidence was in the custody of VA at the time the Board decided the case and neither the Board nor the agency of original jurisdiction have had an opportunity to review these records. This vacatur is based upon the denial of due process of law. As such, the November 17, 2009, Board decision denying the claim of entitlement to service connection for Meniere's syndrome, also claimed as vertigo, and hypertension, is vacated. REMAND In October 2009, VA received a private medical report addressing the etiology of the disabilities for which the Veteran seeks service connection. In the November 19, 2009, decision, the Board relied on the findings and conclusions set forth in June 2009 VA examination reports; however, the June 2009 VA examiners did not have the opportunity to review the October 2009 private medical report. The United States Court of Appeals for Veterans Claims (Court) has held that a medical opinion is considered adequate "where it is based upon consideration of the Veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Further, an opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Id. at 124. Here, the examiners who conducted the June 2009 VA examinations did not have the opportunity to consider the private medical report submitted by the Veteran in October 2009. As such, the Board finds that this matter must be remanded so that the examiners can comment on the findings and conclusions set forth in Dr. Bash's October 2009 report, the rationale Dr. Bash offered in support of his assessments, and to conduct any medical testing deemed necessary. Additionally, the Board finds that additional development is warranted. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran's claims folder to the examiners who conducted the June 2009 VA medical examinations (KJW, M.D.), or if the examiners are no longer available, suitable replacements, and request that the examiners prepare an addendum to the reports. The Veteran need not be re-examined unless an examination is deemed necessary by the examiner. The examiner is asked to review the claims file again and to review the October 2009 medical opinion prepared by Dr. Craig N. Bash, which is tabbed in green on the left side of the claims file. Dr. KJW's prior examination reports are tabbed in yellow on the right side of the claims file. The questions below are the same questions asked in the April 2009 Board remand. They will be asked again in light of the findings and conclusions set forth in Dr. Bash's October 2009 report. The examiner must specifically comment on the findings, conclusions and rationale offered by Dr. Bash's in his October 2009 report. a. The examiner should provide an opinion as to whether it is at least as likely as not that any Meniere's syndrome/vertigo are etiologically related to any incidents of the Veteran's period of active service, to include his October 1979 and March 1982 treatment sessions for a swollen and aching right ear and right external otitis. b. The examiner should provide an opinion as to whether it is at least as likely as not that any hypertension or hypertensive vascular disease is etiologically related to any incidents of the Veteran's period of active service, to include his May 1984 elevated blood pressure readings, or whether it developed within one year of his discharge from active duty. In offering these impressions, the examiners must acknowledge and discuss the findings, conclusions and rationale offered by Dr. Bash in his October 2009 report. All findings and conclusions should be set forth in a legible report, accompanied by a rationale in support of all conclusions expressed. 2. Then, readjudicate the claims. If the decisions remain adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the 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. 2010). ___________________________________________ STEVEN D. REISS 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) (2009).