Citation Nr: 1338231 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 11-01 081 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a peripheral vestibular disorder, claimed as dizziness, to include as secondary to service-connected hearing loss or service-connected tinnitus. ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1996 to August 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The August 2008 rating decision is on appeal as the Veteran submitted additional evidence in November 2008, April 2009 and June 2009, which was prior to the expiration of the appeal period for the August 2008 rating decision. The evidence consisted of the Veteran's statements regarding additional medical treatment for dizziness and a statement from a friend, all of which was not previously of record. Thus, the new and material evidence was received prior to the expiration of the appeal period and is considered as having been filed in connection with the claim. 38 C.F.R. § 3.156(b) (2013). Nevertheless, this claim was denied for a second time in a November 2009 rating decision. The Board has recharacterized the Veteran's service connection claim for dizziness to include as secondary to service-connected tinnitus, more broadly to include entitlement to service connection for any peripheral vestibular disorder to include as secondary to service-connected hearing loss or service-connected tinnitus. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may adequately identify the disability for which compensation benefits are sought by referring to a body part or system that is disabled, or by describing the symptoms of that disability); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a mental health disability claim includes any acquired psychiatric disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). A claim for an initial compensable rating for patellofemoral syndrome of the left knee was on appeal before the Board and remanded for further development in September 2003. An October 2004 rating decision granted a 10 percent evaluation for this disability. The Veteran did not appeal this rating decision and it is final. Therefore, this claim is no longer before the Board. 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 Board finds it necessary to remand the issue of entitlement to service connection for a peripheral vestibular disorder to include as secondary to service-connected hearing loss or service-connected tinnitus, to the agency of original jurisdiction for additional development and consideration. The Board does not find the October 2012 VA examination adequate for deciding the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination, it must provide an adequate one). This is because the October 2012 VA examiner stated that the Veteran currently suffered from vertigo two to three times a week. However, examiner stated in the rationale that if the patient's symptoms are resolved then no further testing is necessary, but if symptoms reoccur then a VEMP test should be considered to test for possible Meniere's disease. Based upon the record, the Veteran's symptoms have persisted over time, thus, all necessary testing should be conducted. Additionally, the October 2012 VA examiner did not review the Veteran's VA treatment records. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Finally, the October 2012 VA examiner did not provide a medical opinion for secondary service connection or direct service connection but commented only on aggravation of a non service connected condition by a service connected condition. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). Therefore, on remand, the Veteran should be afforded another VA examination for peripheral vestibular disorders to identify any disorders which may be present, and to provide the necessary testing to diagnosis Meniere's disease. A medical nexus opinion should also be provided to determine if any diagnosed peripheral vestibular disorder is directly related to service or if it is secondary to service-connected hearing loss or service-connected tinnitus. The record reveals that the Veteran last received treatment from Atlanta ENT Sinus and Allergy, in November 2012 and from Family ENT Services, in October 2012. Thus, the necessary authorization should be obtained from the Veteran and any additional records, from Family ENT Services, from October 2012, and from Atlanta ENT Sinus and Allergy, from November 2012, should be obtained and associated with the claims folder. 38 U.S.C.A. § 5103A(b) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c)(1) (2013). Finally, the most recent VA treatment records associated with the claims file, from the Atlanta VA Medical Center (VAMC), are from March 2009. Thus, on remand all relevant VA treatment records should be obtained from the Atlanta VAMC and any associated outpatient clinics, from March 2009 to the present, and associated with the claims file. See 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2). See also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record). Accordingly, the case is REMANDED for the following actions: 1. Obtain the necessary authorization from the Veteran and then attempt to obtain any additional records, from Family ENT Services, from October 2012, and from Atlanta ENT Sinus and Allergy, from November 2012. All attempts to obtain these records must be documented in the claims file. The RO must make two attempts to obtain these records unless the first attempt demonstrates that further attempts would be futile. If no records are obtained, the RO must (1) inform the Veteran of the records that were not obtained (2) tell the Veteran what steps were taken to obtain them, and (3) tell the Veteran that the claim will be adjudicated without the records but that if he later submits them, the claim may be reconsidered. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012 § 505(a), Pub L. 112-154, 126 Stat. 1165 (August 6, 2012) (codified as amended at 38 U.S.C.A. § 5103A(b)(2)(B)). 2. Obtain all VA treatment records for the Veteran from the Atlanta VAMC and any associated outpatient clinics, dated from March 2009 to the present, and associate them with the claims file. All attempts to obtain those records should be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 3. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of any peripheral vestibular disorder that may be diagnosed. All necessary tests should be conducted. The entire claims file should be made available for review in conjunction with the examination. As to each diagnosed peripheral vestibular disorder, the examiner is requested to provide the following: a. Whether it is at least as likely as not (50 percent probability or more) that the diagnosed peripheral vestibular disorder was present in service, was caused by service, or is otherwise related to service. b. Whether it is at least as likely as not (50 percent or greater degree of probability) that any peripheral vestibular disorder that is diagnosed was caused by or aggravated by the Veteran's service-connected tinnitus or service-connected hearing loss. The term at least as likely as not does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of conclusion as it is to find against it Aggravation is defined as a permanent worsening beyond the natural progression of the disease. A complete rationale for all opinions expressed must be provided. 4. The Veteran must be notified that it is his responsibility to report for the 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). 5. Finally, readjudicate the issue on appeal. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. The Veteran 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 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). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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). Department of Veterans Affairs