Citation Nr: 1339762 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 09-13 255 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a vestibular disorder, to include Labyrinthitis and Meniere's disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to July 1967. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND In a July 2012 remand, the Board determined that the January 2012 VA supplemental opinion was inadequate with which to decide the claim. In the January 2012 opinion, the VA examiner identified the Veteran's current disability as a peripheral vestibular disorder "based strictly" on a St. Louis University for Circulatory Disorders consultation report dated in August 2010. Also based solely on the August 2010 St. Louis University consultation report, the examiner opined that "any" present vestibular disorder was not due to any history of acoustic trauma or any medication treatment of a service-connected disability. As the examiner's opinions were based solely on the August 2010 consultation report, the Board determined that the opinions were inadequate because the opinions did not take into consideration to all of the evidence of record. Due to this, and additional inadequacies, the Board directed in the July 2012 remand that the RO obtain an additional supplemental opinion. Although the March 2011 VA examiner provided an additional supplemental opinion in July 2012, the Board again finds the VA supplemental opinion to be inadequate. Specifically, the VA examiner reviewed the August 2010 St. Louis University consultation report when providing an opinion in this case. In the July 2012 supplemental report, the examiner noted that the record included a statement regarding the St. Louis University examination. The examiner stated, however, that he did not see these findings when he reviewed the claims file. Thus, once again, the VA examiner did not adequately consider all of the evidence of record when providing an opinion in this case. Additionally, the July 2012 supplemental opinion does not clarify the exact nature of the Veteran's current vestibular disorder or its relationship to service and/or the Veteran's service-connected disabilities. In the supplemental report, the examiner identified the Veteran's current diagnosis as postural vertigo. The examiner stated that this "could" be classified as a peripheral vestibular disorder, but it was his opinion that it was "at least as likely as not" that the Veteran did not have Labyrinthitis or Meniere's disease. Thus, the exact nature of the Veteran's current vestibular disorder remains unclear. Moreover, the examiner failed to provide an opinion regarding whether the postural vertigo diagnosis is etiologically related to the Veteran's service or whether the diagnosis is due to or aggravated by the Veteran's service-connected disabilities, to include the medications used to treat the service-connected disorders. Thus, the July 2012 supplemental report does not comply with the July 2012 remand directives. Given that the July 2012 VA supplemental opinion report does not comply with the July 2012 remand directives, the Board must again remand the case so that a medical opinion regarding whether any currently or previously diagnosed vestibular disorder is related to his military service. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); see also, Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). 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. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. 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 claim; 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 completion of the above, the Veteran must be afforded a VA examination to determine whether any currently or previously diagnosed vestibular disorder, to include Labyrinthitis, Meniere's disease, a peripheral vestibular disorder, or vertigo is related to the Veteran's military service. The examination must be conducted by an appropriate clinician who has not previously examined the Veteran and/or provided an opinion in this case. 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 have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. Any indicated diagnostic tests and studies must be performed. All pertinent symptomatology and findings must be reported in detail. The examiner must identify all vestibular disorders found on clinical examination. Based on review of the entire record, the clinical examination, and with consideration of the Veteran's statements, the examiner must opine as to whether any previously or currently diagnosed vestibular disorder is related to his military service, to include, but not limited to, acoustic trauma. The examiner must also opine whether any previously or currently diagnosed vestibular disorder is due to or aggravated by the Veteran's service-connected disabilities, to include as being due to or aggravated by medication prescribed to treat the service-connected disabilities. A complete rationale for all opinions stated must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, the examiner must provide the reasoning for that determination. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether the opinion could not be rendered due to limitations of knowledge in the medical community at large or those of the particular examiner. The report prepared must be typed. 3. 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 of 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 the scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to the last known address. Documentation must also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 4. The RO must review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. 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 and argument on the matter or matters the Board has remanded. 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 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).