Citation Nr: 1319026 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 10-24 874 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for inner ear disorder with vertigo. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from October 1945 to May 1949. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Muskogee, Oklahoma, Department of Veterans Affairs (VA) Regional Office (RO), which declined to reopen the Veteran's claim for service connection inner ear disorder with vertigo. In July 2011, the Board reopened the claim for service connection for inner ear disorder with vertigo, and remanded the claim for further development. The Board remanded the reopened claim in January 2013 for further development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 on his part. REMAND This claim requires further development prior to final adjudication. At the outset, it is important to note that this claim for service connection for inner ear damage with vertigo is claimed on a direct basis and, in the alternative, secondary to the Veteran's service-connected anxiety disorder. As previously indicated, during the pendency of this appeal, by rating decision of June 2012, service connection for anxiety disorder, not otherwise specified, was granted, and awarded a 30 percent rating, effective December 2008. The medical evidence of record indicated that anxiety was due to the Veteran's service-connected hearing loss and tinnitus. It is important to note that during the appeal, the Veteran submitted information from the internet which indicated, in pertinent part, that vestibular dysfunction can occur as a result of anxiety. It also indicated that these distorted brain signals can be received from the inner ear. These findings, raised the claim of service connection for an inner ear disorder with vertigo, secondary to his now service-connected anxiety disorder. Therefore, the provisions of applicable regulation, 38 C.F.R. § 3.310, are of import. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(a)(b). That regulation permits service connection not only for disability caused by service- connected disability, but also for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2012). See also Allen v. Brown, 7 Vet.App. 439, 448 (1995). A VA examination report of August 2011, diagnosed anxiety disorder, more likely than not due to the Veteran's service-connected hearing loss and tinnitus. Thereafter, anxiety disorder was service connected on a secondary basis. A VA examination report of November 2011, indicated, in pertinent part, that the examiner diagnosed the Veteran with peripheral vestibular disorder, that was at least as likely as not caused by service. However, that examiner did not give a rationale for these findings. In May 2013, the AMC, sought an independent medical opinion regarding the Veteran's claimed inner ear damage with vertigo. This examiner, a podiatrist, indicated that the Veteran's inner ear disorder with vertigo was less likely as not caused by or aggravated by his time in military service or secondary to his service-connected anxiety condition. The examiner stated that the Veteran's vertigo occurred most likely during his civilian years long after service and there was no medically based scientific evidence to indicate an etiology or aggravation from military service. The examiner also stated that there was little medical based scientific evidence to support a direct relationship of anxiety causing a true inner ear dysfunction to include vertigo. It is important to note that the Veteran had symptoms of vertigo and claimed that he had inner ear damage with vertigo. He has variously been diagnosed with labyrinthitis, peripheral vestibular disorder, and benign paroxsymal positional vertigo. It is not clear from the record the cause of his claimed inner ear damage with vertigo, if it is one of the aforementioned diagnosed disabilities, and if it is the result of service, or in the alternative, if it is due to or aggravated by his service-connected anxiety disorder. The independent medical opinion sought by the AMC did address that the condition claimed by the Veteran was not caused by his inservice foot fungus. The opinion also indicated that there was no direct relationship between the Veteran's service-connected anxiety disorder and his claimed inner ear damage with vertigo. This aspect of the opinion did not address whether the Veteran's anxiety disorder aggravated, or made worse, the Veteran's inner ear damage with vertigo. As a result, if a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent to return the report as inadequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012). This opinion is inadequate in this regard. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the Board's remand. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran needs to be provided another VA examination to answer the question posited in the January 2013 Board remand and to provide sufficient rationale. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The AMC/RO should arrange for the Veteran to be scheduled for appropriate VA examination(s)ENT and/or psychiatric examination to determine the nature and etiology of any currently diagnosed inner ear disorder with vertigo. All indicated studies should be performed. After examination and review of the claims folder, the examiner should appropriately diagnose the Veteran's inner ear damage with vertigo. Thereafter, the examiner(s) should provide an opinion, with supporting rationale, as to whether it is at least as likely as not (probability of 50 percent or greater) that: The Veteran's service-connected anxiety disorder caused or aggravated his diagnosed inner ear disorder with vertigo. If it is determined that aggravation beyond the natural progress of the inner ear disorder with vertigo exists, the examiner should be asked to identify the baseline level of severity of the symptoms prior to aggravation and the level of severity of symptoms due to service-connected aggravation. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. The claims file must be made available to the examiner(s) for review and the examiner should indicate in his/her report whether or not the claims file was reviewed. Supporting rationale must be provided with all requested opinions. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 3. When the development requested has been completed, the case should again be reviewed by the RO/AMC on the basis of the additional evidence. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). _________________________________________________ BARBARA B. COPELAND 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).