Citation Nr: 1303506 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 10-35 025 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for vertigo/Meniere's syndrome, to include as due to tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The rating decision addressed several issues, however, the Veteran only filed a notice of disagreement regarding the denial of entitlement to service connection for vertigo. The Veteran appeared and testified at a personal hearing in July 2012 before the undersigned Veterans Law Judge. A transcript of the hearing is contained in the record. 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 Unfortunately, a remand is required in regards to the Veteran's claim. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Such development would ensure that his due process rights, including those associated with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326, are met. The Veteran is service connected for bilateral tinnitus and hearing loss. During his July 2012 hearing, he testified that in 2001 the pitch of his tinnitus changed and he experienced severe vertigo. He went to Valley General Hospital in Monroe for treatment for this first episode of vertigo. He also saw a private physician, but stated that he has been unable to obtain any treatment records. He described being prescribed medications, placed on a low salt diet, and instructed to keep his fluids up to treat his vertigo. He also noted he was prescribed antihistamines and told to keep his ears clean to help alleviate his vertigo symptoms. When describing the onset of his vertigo, the Veteran indicated that the change in pitch of his tinnitus always precedes his vertigo. He stated that his tinnitus may aggravate his vertigo. A VA treatment record from May 2001, noted a 3-week history of vertigo. The Veteran described a feeling of swelling and then tinnitus in his right ear, followed later in the day by an episode of vertigo. He went to the emergency room at "Overlake" where he was prescribed meclizine. The physician noted it was "most likely" a viral infection of his inner ear causing his vertigo. His symptoms did not improve within one month, and he sought treatment again in July and August 2001. In August 2001, he was encouraged to maintain a low salt diet. In December 2003, he was noted to have polychondritis v. secondary-infected psoriasis on his right ear and face. He had impacted cerumen with some debris as well as peeling skin inside his right ear. While the record contains VA treatment records, the private treatment mentioned by the Veteran during his treatment and during his Board hearing are not of record. On remand, the Appeals Management Center should assist the Veteran in obtaining any outstanding records. In August 2009, the Veteran was afforded a VA audio examination. While the VA examiner noted the Veteran had a possible diagnosis of Meniere's syndrome, the examination did not address his service connection claim or offer an opinion as to the etiology of his claimed vertigo. VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of: (1) a current disability; (2) an in-service event, injury, or disease; and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, given the diagnosis of vertigo/possible Meniere's syndrome and the Veteran's statements that his vertigo symptoms and a change in his tinnitus symptoms always occur simultaneously, the Board finds that a VA examination is warranted to clarify the issue. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). In addition, the Board observes that the various notice letters provided to the Veteran have not addressed the requirements for establishing service connection on a secondary basis. Thus, upon remand, the Veteran also should be given appropriate VCAA notice, specifically to include notice of the requirements for establishing secondary service connection according to 38 C.F.R. § 3.310. Accordingly, the case is REMANDED for the following action: 1. Ensure that all VCAA notice obligations are satisfied in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A, implementing regulations, interpretative precedent Court decisions, and any other applicable legal precedent. In particular, the veteran should be informed of how to establish his claim of secondary service connection under 38 C.F.R. § 3.310. 2. The Veteran should be asked to sign and return release forms authorizing VA to obtain relevant outstanding private medical records. Specifically, the Veteran should be asked to fill out an authorization forms for (1) the private doctor from whom he sought treatment prior to his VA treatment, (2) Valley General in Monroe, and (3) Overlake hospital. The Veteran should also be notified that he may submit these records himself. The notification requirements of 38 C.F.R. § 3.159(c)(1) should be followed. VA should issue an initial records request and at least one follow-up request if the initial request yields no response. If these records cannot be obtained and there is no affirmative evidence that they do not exist, inform the Veteran of the records that could not be obtained, including what efforts were made to obtain them. All efforts to obtain these records should be recorded in the claims folder. 3. Schedule the Veteran for an appropriate VA examination for his claimed vertigo/Meniere's syndrome. The claims file and access to Virtual VA should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, conducting all appropriate diagnostic and physical testing, and obtaining a complete history from the Veteran, the examiner should document any current vestibular disability and render an opinion on the etiology of his vertigo/Meniere's syndrome, to include the relationship between such disability and his tinnitus. Specifically, the examiner should render an opinion as to whether it is at least as likely as not that any currently existing vestibular disability: (a) had its onset during military service, (b) is otherwise caused or aggravated by any incident of his military service, or (c) was caused or aggravated by his service-connected bilateral hearing loss or tinnitus. If the examiner determines that the Veteran's bilateral hearing loss or tinnitus aggravates a vestibular disability, then the examiner should attempt to determine to what degree the vestibular disability is aggravated. The examiner should provide complete rationales for all opinions expressed. 4. After the above is complete, readjudicate the Veteran's claim. If the claim remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. No action is required of the Veteran and his attorney until they are notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655 (2012). 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. 2012). _________________________________________________ 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) (2012).