Citation Nr: 1322358 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 05-03 168 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a disability manifested by earache and/or dizziness other than left otitis media and left Eustachian tube dysfunction. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the RO in Cleveland, Ohio, which denied service connection for a disability claimed as ear aches and dizziness, and hearing loss. In April 2006, the Veteran testified at a videoconference hearing before one of the undersigned Veterans Law Judges. A transcript of this testimony is associated with the claims file. In December 2006, the Board remanded both issues for additional development. The claim was returned to the Board and in a January 2010 decision the Board denied entitlement to service connection for hearing loss. At this time the issue of service connection for a disability claimed as ear aches and dizziness was remanded for additional development including additional examination and medical opinions. As a result of the January 2010 remand, a March 2011 rating decision granted service connection for left otitis media and Eustachian tube dysfunction and assigned a noncompensable (0%) disability rating. The Veteran disagreed with the initial disability rating assigned and perfected an appeal with respect to this issue which is addressed in a separate Board decision. In June 2011, the Board again remanded the issue remaining on appeal, as indicated in the issue section above, for additional examination and medical opinions. In February 2013, the Veteran testified at a videoconference hearing before another of the undersigned Veterans Law Judges. A transcript of that proceeding is also of record. Testimony on the issue of entitlement to service connection for disability manifested by earache and/or dizziness other than left otitis media and left Eustachian tube dysfunction was taken at this hearing. As noted above, the Veteran testified at two separate hearings before two different Veterans Law Judges, both of which are deciding this case. Accordingly, this appeal must now be addressed by a panel, which includes the Veterans Law Judges who presided at the hearings. See 38 C.F.R. § 20.707. In that regard, the Board acknowledges that claimants are entitled to an opportunity for a hearing before every panel member who will ultimately adjudicate the appeal. See Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). The Veteran was contacted and presented the opportunity to have a hearing before a third Veterans Law Judge. In June 2013 the Veteran explicitly waived his right in writing to have a hearing before the third member of the panel addressing the appeal. Additional development is still required with respect to the issue on appeal. Accordingly, 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. The issue of entitlement to an initial compensable disability rating for left otitis media and left Eustachian tube dysfunction is the subject of a separate remand by the Board. REMAND At present, service connection is in effect for left ear otitis media and Eustachian tube dysfunction. Accordingly, the issue involving service connection which remains on appeal is service connection for disability manifested by earache and/or dizziness other than left otitis media and left Eustachian tube dysfunction. There are two distinct symptoms in this claim, i.e., earache and dizziness. Because of this, two separate VA Compensation and Pension examinations were conducted in January 2012. One examination was an otolaryngology (ears) examination and the other was a neurology examination, the latter which was to address the Veteran's symptom of dizziness. Unfortunately, the neurologic examiner did not provide an opinion with respect to secondary service connection. That is, the examiner did not express an opinion as to whether or not the claimed dizziness/disequilibrium was related to the service-connected left otitis media and Eustachian tube dysfunction. When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Accordingly, the case is REMANDED for the following action: 1. The examiner who conducted the January 2012 VA Cranial Nerves examination must provide an addendum to the opinion previously provided. If this examiner is unavailable, an opinion from a physician of the appropriate expertise must be obtained. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. After review of the evidence of record the examiner must indicate: whether the symptoms of dizziness and disequilibrium are related to, caused by, or aggravated by the service-connected left otitis media and Eustachian tube dysfunction and/or tinnitus? If the examiner determines that the requested opinions cannot be rendered without an examination, then the appropriate VA examination must be conducted. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. If a new examination is required, the RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of his claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the examination, documentation must be obtained that shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim for service connection for a disability manifested by earache and/or dizziness other than left otitis media and left Eustachian tube dysfunction must be readjudicated. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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 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). JOY A. MCDONALD MARK F. HALSEY Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals __________________________________________ KATHLEEN K. GALLAGHER 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).