Citation Nr: 1334109 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-18 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for Meniere's disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran and his spouse. ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran had active service from June to October 1987 and from January 1993 to May 1998. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 2008 decision by the Department of Veterans Affairs (VA) Des Moines, Iowa, Regional Office (RO). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND Based upon its review of the Veteran's claims file, the Board finds that the duty to assist the Veteran has yet to be fully met with regard to this claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Veteran contends that he is entitled to service connection for Meniere's disease. In particular, the Veteran contends that his in-service treatment for flu-like symptoms, such as headaches, dizziness, and passing out, were the initial manifestations of the later diagnosed Meniere's disease. In the alternative, the Veteran alleges that medical personnel failed to accurately diagnose Meniere's disease in service. In October 2011, a VA examiner acknowledged that the Veteran was treated in service for vague complaints of nausea, dizziness, headaches, and syncope, but also noted that Meniere's disease was not diagnosed until 2006. In the examiner's opinion, the Veteran's vague, non-specific in-service symptoms were consistent with mixed migraine/tension headaches. In addition, the examiner indicated that there was no mention of overt vertigo, aural fullness or muffling, hearing loss, or tinnitus. Accordingly, the examiner determined that the currently diagnosed Meniere's disease was not caused by or the result of the Veteran's active duty service. The Board, as noted in its September 2012 remand of this issue, finds this examination report to be inadequate for evaluation purposes. Service treatment records reflect evidence of decreased auditory acuity and, by the October 2011 VA examiner's own account, right ear hearing loss was diagnosed in 1999, i.e., within one year after discharge from service. Additionally, a May 2008 VA examiner also identified 1999 as the date of onset for the Veteran's bilateral hearing loss. The October 2011 VA examiner, however, did not address the significance, if any, of the Veteran's decreased auditory acuity in 1999 as it pertains to his now diagnosed Meniere's disease. In September 2012, the Board remanded this matter for an addendum opinion to discuss the significance of the decreased auditory acuity in service and in 1999. This opinion was to be obtained after development of the record, specifically after receipt of an addendum opinion from the Veteran's private treating physician. The examiner was instructed to express an opinion as to whether the currently diagnosed Meniere's disease is related to the Veteran's period of active service, as well as an opinion as to whether the currently diagnosed Meniere's disease is proximately due to or aggravated by the Veteran's service-connected cluster headaches. The examiner was instructed to provide a complete rationale for all opinions expressed. In September 2012, prior to receipt of the statement of the Veteran's private physician in October 2012, the VA examiner issued a report, which summarized the private physician's May 2012 statement, as well as other pertinent medical information. The examiner documented the in-service notation of left sided hearing loss, but made no mention of the 1999 finding noted in prior VA examination reports. The examiner went on to opine that "cluster or migraine [headaches] do not cause" Meniere's disease. No rational was provided for this opinion. As to the relevance of the hearing loss, the examiner stated that there is "evidence of mild hearing loss in the [service treatment records] in the left ear. This is mild enough not to be noticed. That he had this does not affect the previously rendered opinion." This opinion is not compliant with the Board's remand instructions. It was not obtained after the development of the record, as was instructed by the remand, thus it did not include any opinion based upon the complete evidence of record. The examiner also failed to provide a complete rationale for the opinion that cluster headaches do not cause Meniere's disease, and gave no opinion as to whether the Veteran's cluster headaches or migraine headaches aggravate the Veteran's Meniere's disease. For these reasons, the September 2012 VA examiner's analysis of the Veteran's claim is inadequate. 38 C.F.R. § 3.159(c)(4) (2013); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (finding that if VA provides the Veteran with an examination in a service connection claim, the examination must be adequate). Further, the opinion is not in compliance with the Board's prior remand directives. Another remand for an addendum opinion is necessary. Stegall v West, 11 Vet App 268 (1998). On remand, the RO should again give the Veteran the opportunity to provide information related to any ongoing treatment of his Meniere's disease. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim, to include any VA or non-VA evidence. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claims; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. After the above development is completed, the claims file must be returned to the examiner who performed the October 2011 VA ear diseases examination and provided the September 2012 opinion, if available. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records were reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. Following a review of the evidence of record, and with consideration of the Veteran's statements, to include the Veteran's reports of symptoms during service and since, the examiner must provide an addendum which addresses the significance, if any, of the Veteran's decreased auditory acuity in service and the diagnosis of hearing loss in 1999 (i.e., within one year after discharge from service) as noted in the October 2011 VA examination report, on the Veteran's claim of entitlement to service connection for Meniere's disease. The examiner must express an opinion, to include consideration the Veteran's lay reports of symptoms in service and since, as well as the private physician's May 2012 and October 2012 opinions, as to whether the Veteran's currently diagnosed Meniere's disease is related to his period of active service or any incident therein. Additionally, the examiner must provide an opinion as to whether the currently diagnosed Meniere's disease is proximately due to or aggravated by the Veteran's service-connected cluster headaches. In reaching these conclusions, the examiner is reminded that VA laws and regulations do not preclude service connection for a post-service disability where a disability was not shown at the time of separation from service. The examiner must provide a complete rationale for all opinions expressed. 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. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. If the examiner that conducted the October 2011 examination and wrote the September 2012 opinion is unavailable, is unable to provide the requested opinions, or indicates that another VA examination is necessary, the RO must make arrangements with the appropriate VA medical facility for the Veteran to undergo a VA examination to determine the etiology of his Meniere's disease. In providing the etiological opinion, the examiner is reminded that VA laws and regulations do not preclude service connection for a post-service disability where a disability was not shown at the time of separation from service. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records were reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. All pertinent symptomatology and findings must be reported in detail. All indicated testing must be conducted. Following a review of the evidence of record, an examination of the Veteran, and with consideration of the Veteran's statements, to include the Veteran's reports of symptoms during service and since, the examiner must provide an opinion which addresses the significance, if any, of the Veteran's decreased auditory acuity in service and the diagnosis of hearing loss in 1999 (i.e., within one year after discharge from service) as noted in the October 2011 VA examination report, on the Veteran's claim of entitlement to service connection for Meniere's disease. The examiner must express an opinion, to include consideration the Veteran's lay reports of symptoms in service and since, as well as the private physician's May 2012 and October 2012 opinions, as to whether the Veteran's currently diagnosed Meniere's disease is related to his period of active service or any incident therein. Additionally, the examiner must provide an opinion as to whether the currently diagnosed Meniere's disease is proximately due to or aggravated by the Veteran's service-connected cluster headaches. The examiner must provide a complete rationale for all opinions expressed. 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. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 4. If another examination is required, the RO must notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of the 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 (2013). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which 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. 5. After the requested examination or addendum has been completed, the RO must review the examination report or addendum to ensure that it is in complete compliance with the directives of this remand and the Board's prior remand. An examination report or addendum must be returned to the examiner if it is deficient in any manner and the RO must implement corrective procedures at once. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim on appeal must be readjudicated. If the issue on appeal 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. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).