Citation Nr: 1229522 Decision Date: 08/27/12 Archive Date: 09/05/12 DOCKET NO. 05-01 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for nausea and dizziness, to include as secondary to service-connected tinnitus and hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD H.J. Baucom INTRODUCTION The Veteran had active service from October 1966 to September 1968. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an October 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The case was previously before the Board in July 2008, March 2010, and August 2011 and was remanded each time for further development. In an August 2012 Informal Hearing Presentation, the Veteran's representative raises an argument regarding clear and unmistakable error (CUE) in an October 1969 rating decision. The issue of whether clear and unmistakable error in an October 1969 rating decision, which denied service connection for a hearing defect has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 service connection for a condition manifested by dizziness, nausea, and loss of balance, which he believes is associated with his service-connected tinnitus and hearing loss. There have now been three VA examinations to determine the nature and likely etiology of this condition but all three have been inadequate. In August 2011 the case was again remanded by the Board for an examination to determine the likely nature and etiology of the Veteran's claimed nausea, dizziness and loss of balance. In February 2012 a VA examination was conducted. The Veteran reported his symptoms and history of symptoms. The examiner identified the Veteran's constant tinnitus, and vague sensation of intermittent imbalance as signs or symptoms attributable to Meniere's syndrome, a peripheral vestibular condition or another diagnosed condition. The Veteran was tested and found to have vertigo, without nystagmus, with the head in the right lateral position and with him position changed from sitting to supine. The examiner reported that the Veteran describes symptoms which are most consistent with, but not definitively diagnostic of, Meniere's. The examiner noted that the Veteran had not been formally tested for this condition, and he has never undergone a electrocochleography evaluation which would further support the diagnosis of Meniere's, if positive. Despite noting that the symptoms were most consistent with Meniere's, but a formal test for that condition had not been conducted, no further testing was ordered. The examiner reviewed the claims file, noting that the Veteran did not report these symptoms during service. The examiner also reported that the caused of Meniere's are poorly understood, but may be due to a combination of factors. The examiner then opined that the Veteran's subjective symptoms of dizziness, nausea and loss of balance are not related to his service-connected ear disability but provided no rationale as to why. Additionally, the examiner failed to provide an opinion as to whether the Veteran's hearing loss or tinnitus aggravated any diagnosed condition associated with the symptoms of dizziness, nausea, and loss of balance. As the August 2011 remand instructions have not been complied with, and additional testing has not been completed, another remand is required. Failure of the Board to ensure compliance is error as a matter of law. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and likely etiology of his claimed symptoms, which include dizziness, nausea, and loss of balance. The examiner should conduct a thorough examination, and all necessary testing. After the testing is completed provide a diagnosis for any pathology found. The examiner should note that the Veteran is competent to report as to the symptomatology that he has experienced. The examiner shall answer the following questions: a) Is it at least as likely as not (50 percent or higher degree of probability) that any currently diagnosed condition associated with dizziness, nausea, and loss of balance was incurred in or aggravated by service? (b) Is it at least as likely as not that any currently diagnosed condition associated with dizziness, nausea, and loss of balance was caused by his service-connected hearing loss or tinnitus? (c) Is it at least as likely as not that any currently diagnosed condition associated with dizziness, nausea, and loss of balance was aggravated by his service-connected hearing loss or tinnitus? "Aggravation" is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the physician should indicate, to the extent possible, the approximate level of severity of the condition associated with dizziness, nausea, and loss of balance (i.e., a baseline) before the onset of the aggravation. The examiner shall provide a complete rationale for all opinions expressed. 2. The Veteran is hereby notified that it is his responsibility to report for any examinations and testing and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 3. Review the record and complete any further development, if necessary. Thereafter, readjudicate the issue on appeal. If the claim remains denied, the RO should issue a supplemental statement of the case and afford the Veteran and his representative an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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. 2011). _________________________________________________ M. E. LARKIN 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) (2011).