Citation Nr: 1318736 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 09-23 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a vestibular disorder, variously diagnosed as vestibular neuronitis and Meniere disease, to include as secondary to service-connected bilateral sensorineural hearing loss and tinnitus. 2. Entitlement to an increased (compensable) rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to March 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran has submitted medical treatise information indicating that his service-connected hearing loss and tinnitus are symptoms of his vestibular disorder. Therefore, a secondary service connection theory of entitlement for the vestibular disorder has been raised. As noted below, the Veteran has filed a notice of disagreement with the denial of entitlement to an increased (compensable) rating for bilateral hearing loss. In light of the above, the issues are as stated on the title page. The issue of entitlement to an increased rating for tinnitus (see August 2009 statement) 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 At the February 2008 VA examination, the Veteran reported that his vertigo and imbalance symptoms started in service and the examiner noted that history reported by the appellant. In his September 2007 claim, however, the Veteran reported he started experiencing dizzy spells just seven years ago. Similarly, a September 2007 VA treatment record shows that he has had true vertigo for at least 10 years. His service treatment records show no complaints of dizziness or balance problems and he denied any history of dizziness or fainting spells at his separation examination. Despite the inconsistencies on when the dizziness began, the Veteran is also asserting that his in-service blurred vision and headaches, as documented in the service treatment records, were the initial manifestations of the vestibular disorder, and that the disorder is related to the in-service noise exposure. The service treatment records also reveal that in 1968 the appellant had an earache in an unspecified ear. Moreover, a September 2008 VA treatment record reveals that a doctor noted that the medical issues included hearing loss with intermittent vertigo and tinnitus. Additionally, in the September 2007 claim, the appellant reported that his service-connected hearing loss and tinnitus are symptoms of his alleged Meniere disease. In light of the above as well as the need to address any relationship between the service-connected bilateral hearing loss and tinnitus and the vestibular disorder, an addendum to the VA examination is necessary. A September 2006 VA treatment record reflects that the Veteran received treatment for his vestibular disorder at Holyoke Hospital and Drs. Keenan, Malladi, and O'Neil ear, nose, and throat medical office. Since the service connection issue is being remanded for an addendum to the VA examination, the AMC should obtain to obtain records from the above-mentioned private providers as well as affording the Veteran another opportunity to identity treatment and authorize the release of records from Dr. Boyce. The AMC should also obtain any additional VA treatment records from the Northampton VA Medical Center since November 2012. Given that the vestibular disorder claim is now also being considered on a secondary basis theory of entitlement, the AMC must provide the Veteran notice of the information and evidence needed to substantiate and complete a claim of entitlement to service connection on a secondary basis, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). In a December 2008 rating decision, the RO denied entitlement to an increased (compensable) rating for bilateral hearing loss. In July 2009, the RO received the Veteran's VA Form 9 with an enclosed statement that the Board construes as a timely filed notice of disagreement with the denial of entitlement to an increased (compensable) rating for bilateral hearing loss. As such, the AMC must issue a statement of the case concerning the issue of entitlement to an increased (compensable) rating for bilateral hearing loss. Manlincon v. West, 12 Vet. App. 242 (1999). Accordingly, the case is REMANDED for the following action: 1. The AMC should issue a statement of the case addressing the issue of entitlement to an increased (compensable) rating for bilateral hearing loss. The Veteran is hereby informed that the Board may only exercise appellate jurisdiction over this matter if he perfects an appeal in a timely manner. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 (2012). 2. The AMC should provide the Veteran notice of the information and evidence needed to substantiate and complete a claim of secondary service connection for a vestibular disorder, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. 3. The AMC should ask the Veteran to identify all treatment for his vestibular disorder. The AMC should obtain records from Holyoke Hospital; Drs. Keenan, Malladi, and O'Neil ear, nose, and throat medical office; Dr. Boyce; and any other identified records. The appellant's assistance should be requested as needed. Regardless of the claimant's response, the AMC should obtain any additional records from the Northampton VA Medical Center since November 2012. Any obtained records should be associated with the Veteran's claims file. 4. Thereafter, the AMC should arrange for the Veteran's claims file to be reviewed by the February 2008 VA fee-basis examiner. If that examiner is unavailable, the AMC should make arrangements to have the appellant's claims file reviewed by another appropriate medical professional. The examiner shoulder address the following inquires: (a) is it at least as likely as not (probability of 50 percent or greater) that the vestibular disorder is related to active service, to include in-service noise exposure, the in-service earache in December 1968, and the blurred vision and headaches in August and September 1971; (b) is at least as likely as not (probability of 50 percent or greater) that the vestibular disorder was caused or aggravated (i.e. permanently worsen beyond the normal progression of the disability) by his service-connected bilateral hearing loss and/or tinnitus; and (c) is at least as likely as not (probability of 50 percent or greater) that the service-connected bilateral hearing loss and/or tinnitus is/are a symptom or symptoms of the vestibular disorder. If the examiner determines that it is necessary to again examine the Veteran to render these opinions, he should be scheduled for another examination. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 5. After the development requested has been completed, the AMC review the addendum to the examination report or, if applicable, the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the addendum or report is deficient in any manner, the RO must implement corrective procedures at once. 6. Thereafter, the AMC must readjudicate the issue on appeal, to include as secondary to the service-connected bilateral hearing loss and tinnitus. If the benefit is not granted, the Veteran should be furnished with a supplemental statement of the case, with a copy to his representative, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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. 2012). _________________________________________________ DAVID L. WIGHT 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).