Citation Nr: 1333548 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 13-22 988 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for vertigo, claimed as dizziness. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD R. Sauter, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1955 to March 1957. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which, in pertinent part, denied the Veteran's service connection claim for vertigo. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 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 A remand is required to ensure that there is a complete record upon which to decide the Veteran's claims. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claims for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c) and (d) (2013). The RO requested the Veteran's service treatment records from the National Personnel Records Center (NPRC), but the NPRC indicated that the records had likely been destroyed by fire. In these circumstances, when a veteran's service treatment are unavailable through no fault of his own, VA's duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). The Veteran asserts that his vertigo began in service when a sergeant threw a grenade to test it, and it exploded near him. The Veteran experienced immediate temporary hearing loss and ringing of the ears, followed by a prolonged period of clogged ears, headaches, and dizziness. The Veteran states that he never went to sick call or reported the incident because he "didn't want to get anyone in trouble." The Veteran further asserts that he continued to experience vertigo symptoms after service, including many "flare-ups" that required medical treatment. The Veteran is currently diagnosed with vertigo. See statements of Dr. H.S.W., Dr. M.S.G., and Dr. P.K., below. Additionally, the Veteran contends that he was diagnosed with Meniere's Disease in the 1970s, although there is no record of this diagnosis. The Veteran is currently service-connected for hearing loss and tinnitus, based upon acoustic trauma associated with his MOS as a radio operator. As to the etiology of his vertigo, in a January 2011 statement, Dr. H.S.W., M.D., P.A. asserted that the Veteran's vertigo originated in service. In an August 2011 statement, Dr. H.S.W. notes that the Veteran experienced a prolonged episode of vertigo between 1976 and 1978, which required a 3 to 4 week hospitalization and several weeks of missed work. Dr. H.S.W. further asserted that the Veteran has had many "flare-ups" of vertigo throughout his lifetime, dating back to his military service when the root causes occurred. The Veteran also submitted statements and treatment records from M.S.G., M.D., F.A.C.S., a specialist to whom the Veteran was referred by Dr. H.S.W. In statements dated November 2010, Dr. M.S.G. reported that the Veteran's "symptom is primarily disequilibrium and potentially lightheadedness," and expressed his opinion that the Veteran's hearing loss and vertigo "symptoms have persisted since his time in service." Finally, the Veteran submitted a February 2011 treatment record from a neurologist, P.K., M.D. After reviewing the Veteran's history and conducting an examination, Dr. P.K. diagnosed the Veteran with benign paroxysmal positional vertigo (BPPV). Dr. P.K. further stated that "[i]t is possible that [the Veteran's vertigo] was secondary to an injury received in the service." The Veteran received a November 2010 VA audiological examination in conjunction to his hearing loss and tinnitus claims, but has not yet been afforded a VA examination to determine the etiology of his vertigo. The VA examiner did not discuss the Veteran's vertigo, but noted that the Veteran reported experiencing his first bout of vertigo in 1957. In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the factor of relationship of current disability to service, the United States Court of Appeals for Veterans Claims (Court) has indicated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and a veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon at 83; see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service). Here, there is competent evidence that the Veteran is currently diagnosed with vertigo. The private medical statements do not clearly related vertigo to service. In light of the above, the Board finds that a VA examination with medical nexus opinion is required to determine whether his vertigo is causally related to active service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). 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) (2013). Expedited handling is requested.) 1. Arrange for the Veteran to undergo a VA examination to ascertain the current nature and etiology of his vertigo. The examiner should be requested to: a. Indicate all vertigo or dizziness-related disabilities currently shown, and; b. Render an opinion regarding whether it is at least as likely as not (50 percent or more probability) that any diagnosed vertigo had its onset in service or is otherwise related to service. For purposes of the opinions, the examiner should accept as true the Veteran's reported history of exposure to noise in service from a grenade that exploded near him with resulting vertigo symptoms. The examiner should reconcile the opinion with the conceded acoustic trauma in service, and the January and August 2011 statements of Dr. H.S.W., the November 2011 statements of Dr. M.S.G., and the February 2011 statement of Dr. P.K. Alternatively, the examiner should determine whether it is at least as likely as not that the Veteran's vertigo is proximately due to or, alternatively, permanently aggravated by, the Veteran's service-connected hearing loss and/or tinnitus. If it is determined that aggravation beyond the natural progress of the vertigo exists, the examiner should identify the baseline level of severity of the vertigo prior to aggravation and the level of severity of vertigo due to aggravation. "Aggravation" is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. In addressing the question of aggravation, the examiner should be informed that temporary or intermittent flare-ups of an injury or disease are not sufficient to be considered "aggravation" unless the underlying condition, in contrast with symptoms, has worsened. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. The claims folder must be made available for review in connection with this examination. The examiner should provide a complete rationale for all conclusions reached. 2. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case that addresses all relevant actions taken on the claim for benefits. The Veteran should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. 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). _________________________________________________ K. J. Alibrando 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) (2013).