Citation Nr: 1522685 Decision Date: 05/29/15 Archive Date: 06/11/15 DOCKET NO. 10-37 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for dizziness (now claimed as vertigo), to include as secondary to service-connected tinnitus. 2. Entitlement to service connection for dizziness (now claimed as vertigo), to include as secondary to service-connected tinnitus. (The issue of whether termination of the Veteran's nonservice-connected pension benefits was proper is addressed in a separate decision.) REPRESENTATION Veteran is represented by: The American Legion ATTORNEY FOR THE BOARD C. Banister, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1964 to May 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board notes that in a written correspondence received in March 2014, the Veteran expressed his desire to change his representative to Disabled American Veterans (DAV). However, the Veteran did not submit a new VA Form 21-22 appointing DAV as his representative. Furthermore, the Veteran's correspondence was received over 90 days after the appeal was certified to the Board, and there has been no motion or showing of good cause for the delay. See 38 C.F.R. § 20.1304(b)(1)(i) (2014). Therefore, the American Legion remains the Veteran's representative of record. The reopened claim of entitlement to service connection for vertigo is addressed in the remand portion of the decision below and is remanded to the RO. FINDINGS OF FACT 1. The Veteran's original claim of entitlement to service connection for dizziness was denied in a March 1992 rating decision. Although the Veteran was provided notice of the rating decision and notice of his appellate rights via an April 1992 letter, he did not perfect an appeal, and new and material evidence was not received within the one-year appeal period. 2. Evidence received since the March 1992 rating decision relates to an unestablished element necessary to substantiate the Veteran's claim of entitlement to service connection for dizziness, and raises a reasonable possibility of substantiating that claim. CONCLUSION OF LAW Evidence submitted to reopen the claim of entitlement to service connection for dizziness (now claimed as vertigo) it new and material, and therefore, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. 3.156 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist veterans in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2014). Because the Board is reopening the claim of entitlement to service connection for dizziness, no discussion of the duties to notify and assist is warranted with regard to that claim, as the decision poses no risk of prejudice. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in active service or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2014). Disability which is proximately due to, or aggravated by, a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (2014). In April 1991, the Veteran submitted a claim of entitlement to service connection for dizziness, which was denied in a March 1992 rating decision. Although the Veteran was provided notice of the rating decision and notice of his appellate rights via an April 1992 letter, he did not perfect an appeal. No new and material evidence was received within the one-year appeal period. As such, the March 1992 rating decision is final. See 38 38 U.S.C.A. § 7105; C.F.R. §§ 20.200, 20.202, 20.302, 20.1103 (2014); see also 38 C.F.R. § 3.156(b). In May 2008, the Veteran submitted a claim to reopen the claim of entitlement to service connection for vertigo, which was denied in a September 2008 rating decision because the RO determined that new and material evidence had not been received to reopen the previously denied service connection claim for dizziness (now claimed as vertigo). Thereafter, the Veteran perfected an appeal. As an initial matter, the Board must determine whether the Veteran's service connection claim for vertigo is the same claim as the previously denied service connection claim for dizziness or whether it constitutes an independent claim. When determining whether a claim is independent from a previously adjudicated claim, VA must consider whether the evidence truly amounts to a new claim based upon a different diagnosed disease or whether the evidence substantiates an element of a previously adjudicated matter. Velez v. Shinseki, 23 Vet. App. 199, 204 (2009). However, a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury when it is an independent claim based on distinct factual bases. Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008); 38 U.S.C.A. 7104(b) (West 2014). When the Veteran submitted his Application for Compensation or Pension (VA Form 21-526) in April 1991, he did not specify any disabilities for which he was seeking service connection, but stated that he received treatment for dizziness on the rifle range during service. In an April 1991 written statement, the Veteran reported experiencing one dizzy spell during service, for which he was evaluated at the post hospital. He stated that the cause of the dizziness was unknown. In May 2008, the Veteran submitted a claim of entitlement to service connection for vertigo, which he asserted was caused by in-service acoustic trauma without the use of hearing protection. In a July 2008 written statement, the Veteran indicated that he received a diagnosis of vertigo approximately 18 months earlier. In a September 2008 written statement, the Veteran reported experiencing a dizzy spell on the rifle range during service and stated that he began experiencing dizzy spells in early 2006. Although the Veteran characterized his May 2008 claim as one for vertigo, the record shows that both claims involved complaints of dizziness, which the Veteran asserts he first experienced on the rifle range during service. Because an element of the current claim was adjudicated in the March 1992 rating decision, the current claim of entitlement to service connection for vertigo is not independent from the April 1991 service connection claim for dizziness. See Velez, 23 Vet. App. at 204. Thus, the Veteran's service connection claim will only be reopened if new and material evidence is presented. See 38 U.S.C.A. § 5108. "New" evidence means evidence not previously submitted to agency decision makers. "Material" evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative no redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). At the time of the RO's March 1992 rating decision, the evidence of record consisted of the Veteran's service treatment records, a December 1991 VA examination, and the April 1991 Application for Compensation or Pension, which included a written statement from the Veteran. The RO denied the Veteran's claim, finding that the unexplained dizziness during service was acute in nature and fully resolved by the time the Veteran was discharged from active duty. The RO noted that there was no evidence that the Veteran ever experienced dizziness again, either during service or after his discharge from active duty. Since the March 1992 rating decision, the evidence of record includes the Veteran's statements, VA treatment records dated September 1998 through March 2008, and a March 2008 private audiogram accompanied by a letter from a private audiologist. The Board finds that the evidence is new, as it has not been previously submitted to VA for consideration. With respect to whether this evidence is material, the Board notes that the previous denial was based on the lack of any complaints of or treatment for dizziness, other than the single episode during service. A review of the Veteran's VA treatment records reveals that twice in July 2005, the Veteran reported intermittent episodes of dizziness and received a diagnosis of benign positional vertigo. Subsequent VA treatment records continue to show a diagnosis of vertigo, for which the Veteran is treated with meclizine. As the evidence of record now shows post-service complaints of dizziness and contains a diagnosis of vertigo, the Board finds that the evidence submitted since the March 1992 rating decision is material. See Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010) (holding that the threshold for reopening a claim is low and does not require a veteran to present evidence as to each previously unproven element of a claim, but merely new and material evidence as to at least one of the bases of the prior denial). Therefore, the Veteran has submitted both new and material evidence since the March 1992 rating decision, and the claim of entitlement to service connection for dizziness is reopened. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.156. ORDER New and material evidence having been received, the claim of entitlement to service connection for dizziness (now claimed as vertigo), is reopened, and to that extent only, the appeal is granted. REMAND The Veteran has not been afforded a VA examination in connection with the above-captioned service connection claim. Generally, a VA examination is necessary prior to final adjudication of a claim when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (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 appellant 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) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The evidence of record contains a diagnosis of benign positional vertigo. The Veteran asserts that during service, he experienced the same symptoms of dizziness that he is currently experiencing. The Veteran's service treatment records confirm that in January 1965, the Veteran sought treatment for "unexplained dizziness." Additionally, in September 2008, service connection was granted for tinnitus. In a September 2008 written statement, the Veteran indicated that his private audiologist advised him that tinnitus and vertigo are often related. Because there is at least an indication that the Veteran's current dizziness may be related to the in-service complaint of dizziness and/or his service-connected tinnitus, and there are no medical opinions of record addressing the etiology of the Veteran's current dizziness, the Board finds that a remand is necessary in order to provide the Veteran a VA examination. McLendon, 20 Vet. App. at 83. Accordingly, the case is remanded for the following action: 1. The Veteran must be afforded an appropriate VA examination to determine the nature and etiology of his current dizziness/vertigo. 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. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to: * Whether it is at least as likely as not that the Veteran's current dizziness/vertigo is related to his active duty, to include the Veteran's in-service complaint of dizziness. * Whether it is at least as likely as not that the Veteran's current dizziness/vertigo is proximately due to, or chronically aggravated by, his service-connected tinnitus. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide a 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. 2. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled 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 (2014). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the claims file showing that notice scheduling the examination was sent to the Veteran's last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the reopened claim must be adjudicated de novo. If the benefit sought is not granted, a supplemental statement of the case must be provided to the Veteran and his representative. The Veteran must be afforded an adequate opportunity to respond. 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). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs