Citation Nr: 1135489 Decision Date: 09/21/11 Archive Date: 10/03/11 DOCKET NO. 05-29 687 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for Meniere's disease, with symptoms such as dizziness and loss of balance, to include as secondary to service-connected hearing loss and tinnitus. 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. J. Houbeck, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1965 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 Regional Office (RO) in St. Paul, Minnesota rating decision, which denied the claims on appeal. In his July 2004 notice of disagreement, the Veteran requested an informal hearing with a Decision Review Officer (DRO). An informal conference was held in May 2005. The Veteran's claim was remanded for additional development in September 2009. The requested development having been partially completed, the matter again is before the Board. 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 is seeking entitlement to service connection for Meniere's disease and entitlement to TDIU. Despite the extensive development already undertaken, the Board has determined that the matter must once again be remanded. In that regard, the Board notes that the September 2009 Board remand directed, in relevant part, that the Veteran be afforded a VA examination and requested that the examiner, "provide an opinion as to whether any currently diagnosed disability manifested by dizziness and loss of balance is related to active military service or events therein; or, whether such disability is proximately due to or aggravated by service-connected hearing loss and tinnitus." The Veteran was afforded a VA examination in December 2009. The examiner diagnosed Meniere's disease. As to etiology, the examiner concluded that "I cannot make a direct connection to the veteran's Meniere's disease and any injury while in service." In addition, the examiner indicated, "While Meniere's disease is definitely aggravating the veteran's hearing loss in the left ear, I cannot find any direct connection between Meniere's disease and his service." The examiner concluded, "the veteran's dizziness and loss of balance are secondary to Meniere's disease and therefore are not likely to be service connected disabilities." As noted above, the Board's September 2009 remand requested that the examiner provide an opinion as to whether any currently diagnosed disability manifested by dizziness and loss of balance is related to active military service or events therein; or, whether such disability is proximately due to or aggravated by service-connected hearing loss and tinnitus. As outlined above, the examiner opined that the diagnosed Meniere's disease was aggravating the Veteran's left ear hearing loss, but did not provide an opinion as to whether the Meniere's disease was proximately due to or aggravated by service-connected hearing loss and tinnitus. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). As such, a remand is required to obtain a supplemental opinion. Consideration of the Veteran's claim for entitlement to TDIU, remains deferred pending resolution of the Veteran's claim for service connection for Meniere's disease, as the TDIU claim is inextricably intertwined with this claim. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Obtain a supplemental opinion from the examiner who conducted the December 2009 examination. If the examiner is not available, obtain an opinion from another appropriate medical professional. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. However, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The claims file must be made available to and reviewed by the reviewer/examiner. The reviewer/examiner is asked to provide an opinion regarding whether the Veteran's Meniere's disease was proximately due to or aggravated by his service-connected hearing loss and tinnitus. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided, to include consideration and discussion of the medical evidence as discussed herein. Specifically, the examiner is requested to consider, and to discuss as appropriate, the February 2002 VA examination report that indicated the Veteran's balance problems could be related to his mixed hearing loss; the January 2003 private audiology report indicating that the Veteran's disequilibrium may be connected to his left ear conductive hearing loss and/or Meniere's disease or positional vertigo; and the October 2007 VA physician's statement that some or all of the Veteran's hearing loss was attributable to his Meniere's disease. 2. Upon completion of the above requested development and any additional development deemed appropriate, readjudicate the issues of entitlement to service connection for Meniere's disease, to include dizziness and loss of balance; and for entitlement to TDIU. All applicable laws and regulations should be considered. If the benefits sought on appeal remain denied, the appellant and his representative should be provided with a Supplemental Statement of the Case (SSOC). An appropriate period of time should be allowed for response. 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. 2010). _________________________________________________ MICHAEL LANE 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) (2010).