Citation Nr: 1315412 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 09-18 498 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for Meniere's syndrome. ATTORNEY FOR THE BOARD R. Anderson, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 2003 to July 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO). The appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND The Veterans Claim Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), and the regulations implementing it apply in the instant case. While the notice provisions of the VCAA appear to be satisfied, the Board is of the opinion that further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to his claim. See 38 C.F.R. § 3.159 (2012). In essence, the Veteran claims that his diagnosed Meniere's syndrome was incurred in service. He states that he began experiencing vertigo (a known symptom of Meniere's) in service. The Veteran's service treatment records (STRs) do not note any complaints of vertigo; he asserts that he was denied the opportunity to seek treatment for such complaints in service. The Veteran has identified a private practitioner, Dr. Cynthia Gonzalez de Davila who practices in Mexico, as a provider who treated him for Meniere's syndrome, immediately upon his return from deployment. In a statement dated in September 2007 Dr. Gonzalez de Davila indicated that the Veteran had had vertigo for a little over 24 months; records of her treatment of the Veteran are not associated with the record. Based on the allegations in this matter and the evidence compiled to date, such records are likely to contain pertinent information, and must be sought. Furthermore, the Veteran's May 2009 substantive appeal suggests that he has received VA evaluations and/or treatment for vertigo, records of which are not associated with the claims file or in Virtual VA, and but are pertinent evidence which is constructively of record, and must be secured. Finally, the opinion offered on June 2007 VA examination is inadequate for rating purposes. The examiner's stated opinion, that the etiology of the Veteran's Meniere's Syndrome is idiopathic (unknown), is nonresponsive to the question of whether the Meniere's Syndrome is at least as likely as not related to his military service (to include on the basis that it became manifest therein). The Veteran is advised that a governing regulation provides that when evidence or information (to include identifying information and releases for private treatment records) requested by VA in connection with a claim for VA benefits is not received within a year following the request, the claim is to be considered abandoned. See 38 C.F.R. § 3.158(a). Accordingly, the case is REMANDED for the following: 1. The RO should secure for the record: (a) Complete clinical records of all VA evaluations or treatment the Veteran has received for vertigo/dizziness, hearing loss, and/or tinnitus since his discharge from service (records of which are not already associated with the record). (b) Records of all private evaluations and/or treatment the Veteran has received for vertigo, hearing loss, and/or tinnitus since service. He must assist in this matter by identifying all providers of such evaluations and/or treatment and providing releases for VA to secure records of the evaluations/treatment, specifically including all records of his treatment by Dr. Cynthia Gonzalez de Davila (who practices in Mexico) and (if his initial diagnosis of Meniere's was not by VA) records from the provider who made the initial such diagnosis. If any provider identified does not respond to VA's request for the treatment records, the Veteran should be so advised, and further advised that ultimately it is his responsibility to ensure that the treatment records are received. As it appears that records from Dr. Gonzalez de Davila will be in Spanish, the RO should arrange for any records received that are not in English to be translated to English prior to the further development ordered below. 2. Thereafter (and only if the private records sought above are received, the RO should arrange for the Veteran to be examined by an otolaryngologist to determine the likely etiology of his Meniere's syndrome. The entire record (to include this remand) must be reviewed by the examiner in conjunction with the examination. Based on a review of the record, and examination of the Veteran, the examiner should offer an opinion that responds to the following. Based on the factual evidence of record, what is the most likely etiology for the Veteran's Meniere's Syndrome? Specifically, is it at least as likely as not (a 50% or better probability) that such disability was incurred in (or is otherwise related to) his active service? The examiner must explain the rationale for all opinions. 3. The RO should then review the record, and readjudicate the Veteran's claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran the opportunity to respond. The case should then be returned to the Board, if in order, for further 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 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). _________________________________________________ George R. Senyk 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).