Citation Nr: 1319381 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 12-34 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for Meniere's disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from July 1956 to July 1960. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied the Veteran's claim for service connection for Meniere's disease. The Veteran was notified in writing of the RO's June 2010 determination and his appellate rights and did not appeal. However, on August 19, 2010, the RO received a signed request from the Veteran to reconsider his claim based on new and material evidence that he provided. That information included an article from the Internet regarding Meniere's disease and a copy of a July 2002 rating decision that granted his claims for service connection for bilateral hearing loss and tinnitus. In addition, records of private treatment in 2010 include findings suggestive of Meniere's disease. The Veteran's statement and the private treatment records are construed as new and material evidence received during the appeal period after the June 2010 decision. As such, this evidence served to prevent the rating decision from becoming final and required readjudication of the original decision. Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. § 3.156(b) (2012). The claim was essentially readjudicated by the RO in November 2010, and the Veteran perfected an appeal following that decision. Hence, the June 2010 decision is not final and the Veteran's claim arises from this RO rating decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 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. REMAND Most of the Veteran's service treatment records are unavailable and are presumed destroyed in a fire, according to a May 2002 response from the National Personnel Records Center (NPRC). In June 2002, in conjunction with his claim for service connection for bilateral hearing loss, the Veteran submitted a completed Request for Information Needed to Reconstruct Medical Data (NA Form 13055). He reported treatment for hearing problems and hemorrhoid and appendix surgery. In a June 2010 memorandum, the RO concluded that the Veteran's service personnel and treatment records were unavailable. However, the Veteran was not asked to complete a NA Form 13055 in conjunction with his current claim on appeal regarding Meniere's disease. In the case of missing service department records, VA has a duty to search for alternate records. Washington v. Nicholson, 19 Vet. App. 362, 370 (2005). Private treatment records, dated from November 1993 to November 2012, from Drs. G.K. and M.B., the Veteran's treating physicians, show that the Veteran variously reported having vertigo and nausea since approximately 1957 or 1960. A March 29, 2004 neurological evaluation reflects that the Veteran was evaluated for forgetfulness/poor memory and irritability that was noted after a bout of presumed herpes encephalitis. He denied having vertigo or dizziness and his gait was stable. On May 13, 2009, the Veteran reported having equilibrium problems for approximately six to eight weeks and, on January 28, 2010, he was treated for chronic recurring vertigo with nausea. In a February 8, 2010 signed statement, Dr. M.B. reported that the Veteran gave a history of vertigo with intermittent vomiting since 1957. Dr. M.B. noted the Veteran's history of exposure to acoustic trauma in service and that, since then, he had tinnitus and variable vertigo that recently worsened. A March 17, 2011 record from B.K., M.D., indicates that the Veteran had a history of dizziness and lightheadedness since the late 1950s. According to an October 16, 2012 medical record from Primary Care Specialists, the Veteran gave a history of dizziness and lightheadedness since 1960 "stemming from military service". On November 13, 2012, Dr. G.K. noted the presence of vertigo, tinnitus, and hearing loss that was "possibly" related to Meniere's disease. Under the Veterans Claims Assistance Act (VCAA), VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. at 83. The record contains competent evidence of current Meniere's disease. The Veteran's reports and the fact that service connection has been established for hearing loss, suggest that Meniere's disease may be related to service. An examination is needed to determine whether the current disease is related to a disease or injury in service. Private treatment records dated as recently as November 2012 indicate that the Veteran has been receiving VA treatment. VA treatment records have not been obtained for the period since June 2010. As these may be relevant to the claim, VA has a duty to obtain them. 38 U.S.C.A. § 5103A(b)-(c) (West 2002 & Supp. 2013). 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. Provide the Veteran with a new NA Form 13055 and request that he complete it, identifying all treatment in service for vertigo, dizziness and/or Meniere's disease, and then submit the completed form to VA. 2. Obtain all records regarding the Veteran's treatment at the VAMC in Orlando, since June 2010, and by any additional VA and non-VA medical provider identified by him. Efforts to obtain records in VA custody must continue until they are obtained, unless it is reasonably certain that they do not exist or that further efforts would be futile. If any requested records cannot be obtained, the Veteran should be informed of the missing records, of the efforts made to obtain them, and of any further actions that will be taken with regard to his claim. 3. Schedule the Veteran for a VA examination by a physician to determine whether current Meniere's disease is related to service. All indicated tests and studies should be conducted. The claims folder must be provided to the examiner for use in the study of this case. After completion of the examination and review of the record, the examiner should answer the following questions. a. Has the Veteran had Meniere's disease or another disequilibrium disorder at any time since 2009? b. If so, is it as likely as not that the Veteran's Meniere's disease or other disequilibrium disorder is the result of a disease or injury in active service, or had its onset in such service? c. For any equilibrium disorder, including Meniere's disease, the examiner(s) should indicate whether it is at least as likely as not (a 50 percent or higher degree of probability) that it is proximately due to or the result of service-connected bilateral hearing loss and tinnitus. d. If not, is it at least as likely as not aggravated by service-connected bilateral hearing loss and tinnitus disabilities? If aggravated, what permanent, measurable increase in current equilibrium pathology is attributable to the service-connected bilateral hearing loss and tinnitus disorders? The examiner(s) should provide reasons for this opinion. The examiner should discuss the Veteran's post service reports of symptoms. The Veteran is competent to report symptoms and observable history. 4. If the claim remains denied, issue a supplemental statement of the case. Then return the appeal to the Board, if otherwise in order. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 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). _________________________________________________ Mark D. Hindin 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).