Citation Nr: 1333358 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-35 287 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for Meniere's disease, to include as secondary to service-connected disability. 2. Entitlement to service connection for a urinary disability, claimed as secondary to Meniere's disease. 3. Entitlement to service connection for a colon disability, claimed as secondary to Meniere's disease. 4. Entitlement to service connection for a spinal disability, claimed as secondary to Meniere's disease. 5. Entitlement to service connection for partial paralysis, claimed as secondary to Meniere's disease. REPRESENTATION Appellant represented by: Minnesota Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran, his spouse, and his brother ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from February 1961 to July 1961. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which denied service connection for Meniere's disease, and a March 2010 rating decision that denied the remaining claims on appeal. In March 2012 and March 2013 the Board remanded the Veteran's claims for additional development. Also in March 2013, the Board granted service connection for tinnitus. 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 In the March 2012 remand, the Board found that the May 2011 VA examination report was inadequate because of subsequent submission by the Veteran of medical opinions from his longtime treating private physician. In the September 2011 and October 2011 medical opinions, the Veteran's private physician stated that he began treating the Veteran in the 1960s for symptoms that were related to Meniere's disease. The private physician further opined that the Veteran's Meniere's disease was related to a blast injury the Veteran sustained while in service. As such, the March 2012 remand instructed that the case be remanded in order for the VA examiner to review the claims file, to include the September 2011 and October 2011 private medical opinions, and provide an opinion as to whether it was at least as likely as not that the Veteran's Meniere's disease was incurred during active duty, to include as a result of the blast injury. The examiner was instructed to provide a rationale for any opinion expressed, to include an opinion as to the significance, if any, of the September 2011 and October 2011 private medical opinions which indicate that the Veteran had symptoms of Meniere's disease in the 1960s and that the Veteran's Meniere's disease was related to the in-service blast injury. The March 2013 remand notes that the April 2012 VA opinion, obtained as a result of the March 2012 remand instructions, was also inadequate and did not substantially comply with the March 2012 remand. Stegall v. West, 11 Vet. App 268 (1998). The March 2013 remand indicates that the April 2012 VA examiner did not address or even acknowledge the September 2011 and October 2011 private medical opinions (which indicate that the Veteran had been treated for symptoms of Meniere's disease in the 1960s). Instead, the Board noted that the April 2012 opinion was based upon the premise that the Veteran did not experience symptoms of Meniere's disease until 1974. As such, the March 2013 remand instructed the RO to forward the claims file to the VA examiner for another addendum opinion regarding whether it is at least as likely as not that the Veteran's Meniere's disease was incurred during active duty due to or as a result of the blast injury. The examiner was specifically requested to provide a rationale, including an opinion as to the significance of the September 2011 and October 2011 private medical opinions, which again were noted to relate that the Veteran was treated for symptoms of Meniere's disease in the 1960s and that the Veteran's Meniere's disease was related to the in-service blast injury. Pursuant to the March 2013 remand directives, another addendum medical opinion was apparently obtained in April 2013. (The medical opinion report indicates that the date of the note was January 2, 2013, but the entry date was April 30, 2013.) The opinion report reflects that Meniere's disease is less likely as not incurred in active duty or due to blast injury during active duty. The examiner reasoned that the Veteran denied any ear, nose, or throat trouble; dizziness or fainting spells; and running ears at service separation. The examiner also noted that the onset of the Meniere's disease, based upon private medical records, was in 1985, which is 24 years after service. The examiner also pointed out that there was no treatment soon after discharge except in 1985. The examiner further noted that although hearing loss and tinnitus were presumed to have been incurred in service (service connection was granted for these two disabilities), because the clinical features of Meniere's disease include episodic vertigo, sensorineural hearing loss and tinnitus, and because the Veteran did not complain of dizziness until 1985, which is close to 24 years after service, it is most likely that Meniere's disease is a "superseding injury that is not related to his military duty." The examiner went on to document what is recorded in the separation examination and in the 1985 private treatment records. Unfortunately, the April 2013 VA examiner again failed to address the September 2011 and October 2011 private physician's opinions in rendering the stated opinion, as required by the March 2013 Board remand. Moreover, the examiner did not even indicate that such private opinions were reviewed. As such, there is not substantial compliance with the objectives set forth in prior Board remands. 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). Consequently, a remand is required in order to obtain the requested opinion with an adequate rationale (one that addresses the September 2011 and October 2011 private physician's opinions). The Board also notes that service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2013). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b). Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board observes that 38 C.F.R. § 3.310 was amended, effective October 10, 2006. Under the revised regulation, 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. See 38 C.F.R. § 3.310(b). This requirement was not contained in prior versions of the regulation. Cf. 38 C.F.R. § 3.310 (2006). Because service connection for tinnitus has been granted, and because service connection for Meniere's disease was originally adjudicated and denied, in part, on the basis that Meniere's disease was not secondary to tinnitus (at the time the denial was based on the fact that service connection had not been granted for tinnitus), an opinion should be obtained regarding whether the Veteran's Meniere's disease is caused or aggravated by the now service-connected tinnitus. See 38 C.F.R. § 3.310(b). Allen v. Brown, 7 Vet. App. 439, 448 (1995) Finally, the Veteran's claims of entitlement to service connection for a urinary disability, a colon disability, a spinal disability, and partial paralysis, all claimed as secondary to Meniere's disease, are inextricably intertwined with the claim for service connection for Meniere's disease being remanded. Thus, the Board must defer adjudication of the urinary disability, colon disability, spinal disability, and partial paralysis claims pending resolution of the inextricably intertwined Meniere's disease issue. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). 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. Make the claims file available to an examiner other than the April 2013 VA examiner for another addendum opinion. The examiner is requested to review the claims file, including all post service treatment records as well as the September 2011 and October 2011 private medical opinions, in order to fully address: (1) whether it is at least as likely as not (50 percent or more likelihood) that the Veteran's Meniere's disease was incurred during active duty due to or as a result of the blast injury. The examiner is requested to provide a rationale for any opinion expressed, which should include an opinion as to the significance of the September 2011 and October 2011 private medical opinions (which relate that the Veteran was treated for symptoms of Meniere's disease in the 1960s, and that the Veteran's Meniere's disease was related to the in-service blast injury), along with the corresponding medical records dated from 1969 to 1976. If the examiner determines that the Meniere's disease was not incurred during active service as described above, the examiner should provide an opinion regarding whether it is at least as likely as not (50 percent or more likelihood) that the Veteran's Meniere's disease was caused or aggravated by his service-connected tinnitus and/or hearing loss. The VA examiner is advised that aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. Any opinion(s) expressed should be accompanied by a complete rationale. An additional examination of the Veteran should be scheduled only if deemed necessary to provide the requested opinion(s). 2. Thereafter, adjudicate the issue of entitlement to service connection for Meniere's disease, to include as secondary to service-connected disability, and readjudicate the remaining issues on appeal considering all evidence of record. If any benefit sought is not granted, issue a supplemental statement of the case and afford the Veteran and his representative an appropriate opportunity to respond. The case should be returned to the Board, as warranted. 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). _________________________________________________ U. R. POWELL 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).