Citation Nr: 1320344 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 10-21 121 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for vertigo. 2. Entitlement to service connection for Meniere's disease. 3. Entitlement to service connection for a disorder manifested by bleeding ears. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION 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 & Supp. 2012). The Veteran served on active duty from September 1950 to April 1952. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Veteran appealed, and in July 2011 and again in March 2013, the Board remanded the claims for additional development. In April 2011, the Veteran and his spouse testified at a personal hearing before the undersigned. A transcript of that hearing is associated with the claims file. The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." 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, for the reasons discussed below, additional development, with ensuing delay, is required in the instant case. The Board regrets that a remand of these matters will further delay a final decision in these claims on appeal, but finds that such action is necessary to ensure that the appellant is afforded full due process of law. See 38 C.F.R. § 20.1304(c) (2012); Bernard v. Brown, 4 Vet. App. 384 (1993). In reviewing service-connection claims where a VA examination has been performed, the Board must make a determination as to whether the examination report is adequate to make a decision on the claim notwithstanding the fact that the Board may not have found the examination necessary in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Id. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). As noted, the claims on appeal were remanded by the Board in July 2011, and in March 2013. In July 2011, the Board determined that additional VA examination was necessary to address the presence, nature, and etiology of any bilateral hearing loss, tinnitus, vertigo, Meniere's disease, and bleeding ear condition. The requested exam was conducted in September 2011, but as noted in the Board's March 2013 remand, it was clear that the examiner did not review records showing treatment for ear conditions in 1968. The Board concluded that the opinions were inadequate, as all relevant history was not considered. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) (explaining that a medical opinion is adequate if it describes the disability in sufficient detail, takes into consideration the past medical history, and provides an analysis that the Board can weight against other evidence); Elkins v. Brown, 5 Vet. App. 474 (1993). Moreover, an adequate secondary opinion was not provided. While the September 2011 opinions addressed causation theories, they did not address the possibility of causation or aggravation of a currently non-service-connected condition by a service-connected condition. See 38 C.F.R. § 3.310 (2012); Schroeder v. West, 212 F.3d 1265, 1269-71 (Fed Cir. 2000). Thus, the Board requested an additional examination and/or an addendum opinion in the 2013 remand. A March 2013 addendum opinion as provided by a different VA examiner was added to the claims file. As an initial matter, the examiner who examined the Veteran in September 2011 was not available. However, the Veteran was not afforded an examination, as required in the Board's remand. Stegall. In addition, once again, the Board finds the opinions expressed to be inadequate. As before, it does not appear that the examiner reviewed the medical treatment records showing treatment for ear conditions in 1968. Furthermore, the opinion as to the possibility of aggravation by a service-connected disability is inadequate, because it states that the Veteran's ear disorders were not aggravated by service. There is no discussion as to whether or not his ear disorders were caused or aggravated by his service-connected hearing loss, or tinnitus, as was requested by the Board. See 38 C.F.R. § 3.310 (2012); Stegall. Thus, these opinions are not adequate. Stefl; Elkins. Moreover, the opinion is based, at least in part, on the conclusion that the currently claimed conditions first appeared in 1986. There is no discussion of the ear problems shown in the records many years earlier in 1968, as requested by the Board. Schroeder; Stegall. Therefore, additional VA examination is necessary addressing direct and secondary theories of entitlement to service connection for vertigo, Meniere's disease, and a disorder manifested by bleeding ears. Id. The appellant is hereby notified that it is the appellant's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim(s). 38 C.F.R. §§ 3.158 and 3.655 (2012). 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 Veteran must be scheduled for a new examination with regard to his claims for service connection for Meniere's disease, vertigo, and bleeding ear condition. The claims folder and a copy of this REMAND should be reviewed by the examiner, and the examiner must annotate the examination report that the claims file was in fact made available for review in conjunction with the examination. A rationale for any opinion rendered must be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. 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 that particular question(s). The examiner is asked to accomplish the following: (a) Provide an expert opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any Meniere's disease, vertigo, and/or bleeding ear condition, suffered by the Veteran at any time since he filed his claim in September 2008, had its onset during his active service or was caused by any event in his active service, to include being in close proximity to artillery. (b) Provide an expert opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any Meniere's disease, vertigo, and/or bleeding ear condition, suffered by the Veteran at any time since he filed his claim in September 2008, was caused by his service connected tinnitus and/or hearing loss. (c) Provide an expert opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any Meniere's disease, vertigo, and/or bleeding ear condition, suffered by the Veteran at any time since he filed his claim in September 2008, was worsened beyond its natural progression by his service-connected tinnitus and/or hearing loss. In this regard, an opinion based solely on the date of onset of the Meniere's disease, vertigo, and/or bleeding ear condition with respect to the date of onset of the hearing loss and/or tinnitus is not an adequate opinion. Note: The examiner's discussion should include reference to the Veteran's treatment in 1968 for ear problems, to include chronic otitis media (with a history of 5 years) and whether such indicated the onset of any the conditions on appeal. "Aggravation" is defined as a permanent worsening of the pre-existing or underlying condition, as contrasted to temporary or intermittent flare-ups of symptoms which resolve with return to the previous baseline level of disability. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 2. The RO/AMC must review the examination report taking into consideration the inadequacies that the Board found in the August 2011 and March 2013 VA reports, and ensure that the opinions rendered are adequate. If they are not adequate, the RO/AMC must take corrective action. 3. Then, readjudicate the issues of entitlement to service connection for Meniere's disease, vertigo, and a bleeding ear condition. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate opportunity to respond thereto. 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). _________________________________________________ T. STEPHEN ECKERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2012), 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).