Citation Nr: 1333598 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 08-09 773A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss, on a direct basis or as secondary to Meniere's disease. 2. Entitlement to service connection for tinnitus, on a direct basis or as secondary to Meniere's disease. 3. Entitlement to service connection for Meniere's disease. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active military duty from August 1961 to December 1964. The appeal comes before the Board of Veterans' Appeals (Board) from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran contends that he developed hearing loss and tinnitus as a result of noise exposure working as a jet engine mechanic in service. The Veteran's DD 214 confirms that the Veteran was a jet engine mechanic in service. The Veteran was afforded a VA examination in September 2007 to address whether the Veteran has hearing loss and tinnitus as a result of noise exposure in service. The September 2007 VA examiner noted the Veteran's statement to him that he had been diagnosed with Meniere's disease in 1966 or 1967, which was a few years following his separation from service. The VA examiner then noted that the Veteran's hearing loss and tinnitus and clinical findings were a classic Meniere's disease profile. The examiner thereby concluded, based on the absence of hearing loss findings upon service separation and the absence of findings of Meniere's disease in service, that the Veteran's hearing loss and tinnitus were due to Meniere's disease post service, and were accordingly not causally related to service. The Veteran's authorized representative subsequently asserted that the September 2007 VA examination constituted an implied claim for service connection for Meniere's disease. The Board agrees. The Veteran had already expressed intent to claim benefits based on hearing loss and tinnitus, and the medical examiner's conclusions and the Veteran's own report of medical history linked these claimed disabilities to an intermediary disease - one potentially linking service to the claimed disabilities of hearing loss and tinnitus - while presenting the possibility of a link between that intermediary disease to service. 38 C.F.R. § 3.155(a) (2013). Applicable VA regulations broadly define a "claim" to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p) (2013); see also Rodriguez v. West, 189 F.3d 1351, 1353 (Fed. Cir. 1999) (claim principally requiring an expression of intent to apply for the benefits sought). The authorized representative, in a January 2012 Informal Hearing Presentation, pointed out that the Veteran's service treatment records reflect treatment from August 1962 to October 1962 for ear infections, and the Veteran's service separation examination in September 1964 further reports treatment for bilateral ear infections in March or April of 1963. (The service records do not reflect any explanation why records of treatment for ear infections in March or April of 1963 are not included or otherwise reflected in service treatment records beyond their notation in the separation examination.) The authorized representative has argued that ear infections in service may have precipitated Meniere's disease or otherwise reflected early onset of intermittently symptomatic Meniere's disease, notwithstanding the September 1964 service separation examination's statement (on which the September 2007 VA examiner substantially relied) that the Veteran had made a "full recovery" from his in-service ear infections. The Veteran was provided additional ear disease and audiological examinations in November 2012. The examiners indicated that the Veteran's claimed ear problems to include Meniere's disease are not related to service or any incident of service. The Veteran's claim for service connection for Meniere's disease was denied by a January 2013 rating decision. The Veteran provided a notice of disagreement to the denial for Meniere's disease in a March 2013 letter. The Board concludes that the claim for service connection for Meniere's disease is inextricably intertwined with the Veteran's claims for service connection for bilateral hearing loss and tinnitus, precisely because the claim for service connection for Meniere's disease also raises a new theory of entitlement to service connection for bilateral hearing loss and tinnitus as secondary to claimed Meniere's disease. See Robinson v. Mansfield, 21 Vet. App. 545 (2008) (in reviewing a claim, VA is not required to raise sua sponte all possible theories of entitlement, but must consider those bases reasonably raised either by the claimant, or the evidence of record). The United States Court of Appeals for Veterans Claims has held that a claim which is inextricably-intertwined with another claim which remains undecided and pending before the VA must be adjudicated prior to a final order on the pending claim, so as to avoid piecemeal adjudication. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the hearing loss and tinnitus claims must be remanded to allow the RO or AMC to address the claim for service connection for Meniere's disease in a statement of the case (SOC), and then for the RO or AMC to consider the claims for service connection for hearing loss and tinnitus again, including as secondary to service-connected Meniere's disease if Meniere's disease is itself service connected. See Manlincon v. West, 12 Vet. App. 238 (1999). After the RO has issued the SOC, the claim as to this issue concerning Meniere's disease should be certified to the Board only if the Veteran perfects the appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should undertake all actions required by 38 C.F.R. § 19.26, including issuance of a statement of the case, so that the Veteran may have the opportunity to complete an appeal on the issue of entitlement to service connection for Meniere's (if he so desires) by filing a timely substantive appeal. If a timely substantive appeal is not filed, the matter should be terminated at the RO/AMC. 2. Thereafter, the RO/AMC should readjudicate the claims on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be issued a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. The Veteran 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). These claims 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. 2013). _________________________________________________ J.A. MARKEY 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).