Citation Nr: 1542859 Decision Date: 10/06/15 Archive Date: 10/13/15 DOCKET NO. 11-07 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for bilateral hearing loss, to include as secondary to a service-connected disability. 2. Entitlement to service connection for vertigo, also claimed as Meniere's disease, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jaime M. Porter, Associate Counsel INTRODUCTION The Veteran served on active military duty from August 1983 to November 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran's claim for service connection for bilateral hearing loss was denied by the RO in a rating decision dated July 15, 2010. The Veteran's claim for service connection for vertigo was denied by the RO in a rating decision dated October 18, 2010. Although the Veteran initially claimed entitlement to service connection for vertigo, his reported symptoms also raise the possibility of Meniere's disease, which is characterized by hearing loss, tinnitus, and vertigo. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 539 (32nd Ed. 2012). The scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, because Meniere's disease can reasonably be encompassed by the Veteran's vertigo claim, the Board construes the claim as entitlement to service connection for vertigo, also claimed as Meniere's disease. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran claims that he suffers from bilateral hearing loss and Meniere's disease as a result of his active military service. According to the Veteran's DD Form 214, his military occupational speciality (MOS) was electronic warfare intercept aerial sensor repairer; he also received marksmanship and sharpshooter badges. For the reasons set forth herein, additional development is required prior to adjudicating the Veteran's claims for service connection for bilateral hearing loss, to include as secondary to tinnitus, and for service connection for vertigo, also claimed as Meniere's disease, to include as secondary to tinnitus. To establish service connection for a claimed disorder on a direct-incurrence basis, three elements must be met: (1) current disability; (2) in-service injury or event; and (3) nexus between current disability and in-service injury or event. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2014). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists, and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Hearing Loss The Veteran meets the first two elements required to establish service connection for hearing loss on a direct-incurrence basis. VA audiometric findings obtained in May 2010 show that the Veteran suffers from sensorineural hearing loss disability for VA purposes in both his left and right ears. 38 C.F.R. § 3.385 (2014). In addition, based on his MOS, the Veteran's exposure to acoustic trauma in service is conceded in this case. Thus, the question before the Board is whether the evidence of record demonstrates a nexus between the Veteran's in-service military noise exposure and his current bilateral hearing loss. The RO obtained VA medical opinions in July 2010 and October 2011. These opinions cite the Veteran's entrance and discharge audiograms, which both reflect normal hearing, and the lack of a "significant shift in hearing" during service, in concluding that the Veteran's hearing loss is not related to his military service. However, neither opinion addresses whether the Veteran's hearing loss is related to the reported two-week history of bilateral ear ache and decreased auditory acuity for which he received in-service treatment on or about December 19, 1986. At that time, the assessments were right ear external otitis, and possible bilateral otitis media. The medical opinions' failure to discuss the link, if any, between otitis media and hearing loss, necessitates remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)) (requiring remand for an inadequate medical opinion that is not based on consideration of the veteran's prior medical history and examinations, thereby rendering the Board unable to evaluate the claimed disability in a fully informed manner). The Veteran's claim for secondary service connection requires evidence that the Veteran's hearing loss was either caused by or aggravated by his service-connected tinnitus. In March 2011, a VA examiner considered whether the Veteran's bilateral sensorineural hearing loss is "at least as likely as not related to service-connected tinnitus." The examiner concluded that because the Veteran's tinnitus began during military service, but his hearing loss did not, the hearing loss is not related to tinnitus. However, this opinion does not address the question of causation, that is, whether the Veteran's tinnitus caused his hearing loss, nor does it consider whether the Veteran's hearing loss is aggravated by his service-connected disability of tinnitus. In May 2012, another VA opinion was requested to determine whether the Veteran's bilateral hearing loss is aggravated by his service-connected tinnitus. However, the resulting opinion was not responsive to this prompt. In concluding that tinnitus did not aggravate the Veteran's bilateral hearing loss, the VA examiner focused on whether the Veteran's tinnitus was service connected, an issue that had already been adjudicated in the Veteran's favor. The medical opinion thus relied on a faulty premise: that tinnitus should not have been deemed service connected in the first place. Moreover, in concluding that "tinnitus does not have any effect on hearing loss," the opinion referred to the "weight of medical evidence," but neither cited to nor explained this evidence. The examiner's failure to address the specific question before him-whether the service-connected tinnitus aggravated the Veteran's hearing loss-necessitates remand. See Barr, 21 Vet. App. at 311. Vertigo There are three VA medical opinions on record that consider whether a diagnosis of Meniere's disease, which encompasses the Veteran's claim for vertigo, is appropriate; however, each of these opinions is inadequate. The August 2010 VA opinion simply reviews the Veteran's medical records from the University of Minnesota Medical Center (UMMC), where he was examined in 2006, and notes that the Veteran did not receive a definitive diagnosis from UMMC, "although from the Veteran's history Meniere's disease could be a possibility." Despite acknowledging the possibility of Meniere's disease, the VA examiner provided no further explanation as to whether a diagnosis was appropriate. The examiner then concluded, without discussion, that "whatever the etiology of the vertiginous and syncopal episodes, it does not appear to be in any way connected to the Veteran's service." In addition, the VA opinion does not consider whether the Veteran's current symptoms are related to the episodes of dizziness and fainting that he experienced during service, which is competent evidence that must be considered. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (holding that competent lay evidence can suffice to establish a medical diagnosis). The VA opinion merely notes that these episodes occurred, but does not provide an explanation of the connection, if any, to the Veteran's current symptoms of vertigo. Another VA medical opinion was provided in November 2010; however it merely adopts, without explanation or analysis, the results of the Veteran's 2006 examination at UMMC. Thereafter, the RO sought "clarif[ication] if the Veteran has a clinical diagnosis of vertigo and Meniere's disease"; "a medical rationale as to whether or not the Veteran's vertigo and Meniere's disease, if diagnosed, is due to or caused by the in-service treatment for otitis media and/or the noted fainting episode in service on 08-06-84"; and a medical rationale as to whether the vertigo and Meniere's disease, if diagnosed, are due to or aggravated by the Veteran's service-connected tinnitus. The VA opinion provided in December 2010 does not address these matters. First, the opinion provides neither a positive nor negative diagnosis of Meniere's disease. Further, the opinion does not discuss the Veteran's in-service treatment for otitis media or his fainting episode. Finally, the opinion states that it is unlikely the tinnitus is "in any way related to vertiginous and syncopal records," without providing an explanation or rationale for this conclusion. An adequate medical examination requires that the examiner be fully cognizant of the Veteran's medical history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (Vet. App. 2008). In addition, the medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The December 2010 VA opinion is thus insufficient. The absence of either a positive or negative diagnosis for Meniere's disease, coupled with the failure to address the connection, if any, between the Veteran's in-service maladies and his current symptoms, leaves the Board incapable of evaluating the Veteran's claim in a fully informed manner. For these reasons, the claim for Meniere's disease must be remanded. See Barr, 21 Vet. App. at 311. Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claim file to an individual with the appropriate expertise to obtain a supplemental medical opinion as to whether the Veteran's bilateral hearing loss is due to, or caused by, his in-service treatment for complaints of bilateral ear ache and decreased auditory acuity assessed as right ear external otitis and possible bilateral otitis media on or about December 19, 1986. The individual is requested to obtain a detailed history of the Veteran's symptoms, review the record, and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss is related to his military service, specifically his in-service treatment for complaints of bilateral ear ache and decreased auditory acuity assessed as right ear external otitis and possible bilateral otitis media on or about December 19, 1986. Additionally, the individual is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the bilateral hearing loss was caused or aggravated to any degree by any service-connected disability, specifically to include the service-connected tinnitus. The term "aggravation" means a permanent increase in the underlying disability beyond the natural progression of the disease, as contrasted to a temporary worsening of symptoms. 2. Schedule the Veteran for a VA examination by an individual with the appropriate expertise to determine whether the Veteran has current chronic vertigo, otherwise claimed as Meniere's disease. The Veteran's claims file should be made available to the examiner in conjunction with the examination. Any and all indicated evaluations, studies, and tests should be accomplished. If chronic vertigo and/or Meniere's disease is diagnosed, the examiner is asked to determine whether the disability is due to or caused by the Veteran's military service, including his in-service treatment for complaints of bilateral ear ache and decreased auditory acuity assessed as right ear external otitis and possible bilateral otitis media on or about December 19, 1986, and/or his reported episodes of fainting and dizziness. The examiner is requested to obtain a detailed history of the Veteran's symptoms, review the record, and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any demonstrated chronic vertigo and/or Meniere's disease is related to the Veteran's military service, including his in-service treatment for complaints of bilateral ear ache and decreased auditory acuity assessed as right ear external otitis and possible bilateral otitis media on or about December 19, 1986, and/or his reported episodes of fainting and dizziness. Additionally, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any demonstrated chronic vertigo and/or Meniere's disease was caused or aggravated to any degree by any service-connected disability, specifically to include the service-connected tinnitus. The term "aggravation" means a permanent increase in the underlying disability beyond the natural progression of the disease, as contrasted to a temporary worsening of symptoms. 3. Following the above, and completion of any other development deemed necessary in light of the above, readjudicate the claims on appeal. If any benefit sought remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the case is returned to the Board for appellate consideration. The appellant 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). This claim 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 2014). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).