Citation Nr: 1606640 Decision Date: 02/23/16 Archive Date: 03/01/16 DOCKET NO. 11-31 130 ) 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 for service connection for a disability manifested by dizziness or vertigo (claimed as Meniere's disease). 2. Entitlement to service connection for a disability manifested by dizziness or vertigo (claimed as Meniere's disease). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from March 1968 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran appeared and testified at a Board hearing held at the San Antonio satellite office of the RO before the undersigned Veterans Law Judge in December 2015. A copy of the transcript of this hearing has been associated with the claims file. A review of the transcript demonstrates that the Veterans Law Judge complied with the requirements set forth in Bryant v. Shinseki, 23 Vet. App. 488, 491-93 (2010). The Veteran has claimed service connection for Meniere's disease. The record fails to show a current diagnosis of Meniere's disease; however, the Veteran has consistently complained of dizziness or vertigo and the diagnosis of vertigo is seen in the record. Construing the claim liberally, therefore, the Board finds that it should be characterized as one for service connection for a disability manifested by dizziness or vertigo (claimed as Meniere's disease). See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam order) (it is the responsibility of the Board to consider alternate current conditions within the scope of the claim). The issue is thus restated on the title page of this decision. The issue of entitlement to service connection for disability manifested by dizziness/vertigo (claimed as Meniere's disease) is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACTS 1. The RO denied service connection for Meniere's disease in a July 2006 rating decision. The Veteran did not appeal that decision, and it is final. 2. Some of the new evidence submitted subsequent to July 2006 in support of the Veteran's claim for service connection is material. CONCLUSIONS OF LAW 1. The July 2006 RO rating decision that denied service connection for Meniere's disease is final. 38 U.S.C.A. § 7105(b), (c) (West 2014); 38 C.F.R. § 3.160(d), 20.201, 20.302 (2015). 2. New and material evidence has been received, and the Veteran's claim for service connection is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants the reopening of the Veteran's claim for service connection, which represents a partial grant of the benefit sought on appeal. The Veteran's claim for service connection is remanded and any deficiency in notice can be addressed on remand. Thus, no discussion of VA's duty to notify and assist is necessary. The Veteran's claim for service connection for Meniere's disease was previously denied by the RO in a July 2006 rating decision. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a Notice of Disagreement with the decision. The decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c). The Veteran did not at any time indicate disagreement with this rating decision. Therefore, it is final. 38 U.S.C.A. § 7105. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a claimant. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). "New" evidence is defined as evidence not previously submitted to agency decision makers. "Material" evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claims sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The evidence received subsequent to the last final decision is presumed credible for the purposes of reopening a claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Warren v. Brown, 6 Vet. App. 4 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Furthermore, when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. In the present case, new evidence received since July 2006 includes the Veteran statements and testimony, VA treatment records, private treatment records and examinations, and VA examination reports. The Board notes that the Veteran has specifically alleged having Meniere's disease manifested by dizziness, vertigo, nausea, ear pressure, tinnitus and balance problems. The Veteran's claim was previously denied in the July 2006 rating decision on the basis of no current diagnosis of Meniere's disease that could be related to service. After reviewing the new medical evidence of record, the Board finds that there is still no medical diagnosis of Meniere's disease. The Board notes that, at the December 2015 hearing, the Veteran's representative essentially argued that the November 2014 VA examiner's findings that there is no diagnosis of Meniere's disease was inconsistent with the record, claiming that the record does contain evidence meeting the requirements for a diagnosis of Meniere's disease as set forth by the VA examiner. The Board finds, however, that whether there is a diagnosis of Meniere's disease is not something that can be based solely on a lay person's observations, but requires objective medical testing and opinions as well. See 38 C.F.R. § 3.159(a)(1) (Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions.); see also, Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App 171 (1991). Consequently, the Board may not disregard the lack of a medical diagnosis of Meniere's disease and must rely on the medical professionals' opinions as to the appropriateness of a diagnosis. Hence the Board finds that the new evidence of record fails to support the Veteran's claim that he has Meniere's disease. As previously discussed in the Introduction, however, the Board is found that the Veteran's claim should be expanded to consider all possible etiologies causing to reported dizziness, vertigo and balance problems, not just Meniere's disease. After considering the new evidence received since July 2006 in light of this change, the Board finds that some of the new evidence is sufficiently material to warrant reopening of the Veteran's claim for additional development, to include obtaining a new VA examination. Specifically, the Board finds the treatment notes from February and October of 2010 from the Veteran's private treating otolaryngologist (ENT) indicate a diagnosis of vertigo related to his complaints of dizziness and balance problems, which the previous evidence failed to demonstrate. Consequently these treatment records relate to a fact previously not established, i.e., a current diagnosis; however, it is unclear from these records and those received subsequently as to whether the Veteran's vertigo, dizziness and balance problems are related to his service-connected disabilities relating to his left ear (i.e., mastoiditis, hearing loss and tinnitus) or whether they are related to some other etiology such as benign paroxysmal positional vertigo. Accordingly, the Board finds that the evidence received subsequent to July 2006 is new and material and serves to reopen the claim for service connection. However, the Board cannot, at this point, adjudicate the reopened claim, as further assistance to the Veteran is required to comply with VA's duty to assist the Veteran in developing his claim. This is detailed in the REMAND below. ORDER New and material evidence having been presented, the Veteran's claim for service connection for Meniere's disease (now characterized as a disability manifested by dizziness or vertigo) is reopened and, to that extent only, the appeal is granted. REMAND The Board finds that additional development of the Veteran's claim for service connection for a disability manifested by dizziness or vertigo is necessary. The Board finds that additional development should be accomplished to obtain possible outstanding relevant private and VA treatment records. The record shows the Veteran is treated at the ENT clinic within the VA South Texas Healthcare System. VA records currently associated with the Veteran's claim file show he was seen in September 2013 for follow-up but the last treatment notes is from May 2010. Consequently it appears there may be VA treatment records between these dates that have not been associated with the claims file. On remand any outstanding records should be obtained, as well as any treatment records subsequent to September 2013. With regard to any private records, the Board notes that VA treatment records from 2009 show the Veteran was being treated by an outside primary care provider. At the November 2014 VA examination, the Veteran also reported that his primary care provider is within the civilian sector. The examiner noted these records were not available for review. In addition, the Veteran has submitted treatment records by a private ENT indicating that he was given a prescription to obtain balance testing in February 2010. At the December 2015 hearing, the Veteran indicated that he had received testing related to his dizziness/vertigo but no records of any testing are associated with the claims file. Consequently, on remand, efforts should be undertaken to obtain the Veteran's private primary care provider's treatment records, as well as any records related to testing of the Veteran's complaints of dizziness or vertigo. Once all available documentary evidence obtained has been associated with the claims file, the Veteran should be scheduled for new VA examination solely related to his claim of having dizziness, vertigo and problems. A medical opinion should be requested as to whether or not the Veteran has a definitive separate and distinct diagnosis of a disorder causing his dizziness/vertigo or whether this is merely a symptom of his service-connected mastoiditis, hearing loss and/or tinnitus. If a specific diagnosis is rendered, then a medical nexus opinion should also be obtained as to whether the identified disorder had its onset in service or is secondary to the Veteran's service-connected mastoiditis, hearing loss and/or tinnitus. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's medical records from the VA South Texas Healthcare System for treatment from May 2010 to the present. All efforts to obtain VA records should be fully documented, and the VA facility should provide a negative response if records are not available. 2. Contact the Veteran and ask him to complete a release form authorizing VA to obtain the treatment records from his private treating physicians, including his primary care provider and any medical care provider who conducted balance testing and any other tests specifically related to the Veteran's dizziness/vertigo. The Veteran should be advised that, in lieu of submitting a completed release form, he can submit these private medical treatment records to VA himself. If the Veteran provides a completed release form, then the medical records identified should be requested. All efforts to obtain these records, including follow-up requests, if appropriate, should be fully documented. The Veteran and his representative should be notified of unsuccessful efforts in this regard and afforded an opportunity to submit the identified records. 3. After all additional available evidence has been obtained and associated with the claims file, schedule the Veteran for an appropriate VA examination solely relating to his claim of having dizziness or vertigo. The claims file must be provided to and reviewed by the examiner, who must indicate in his/her report that said review has been accomplished. All necessary tests and/or studies should be accomplished to determine the etiology of the Veteran's complaints of dizziness, vertigo and balance problems. After reviewing the claims file and examining the Veteran, the examiner should render an opinion as to whether the Veteran's complaints of dizziness, vertigo and balance problems are due to a definite diagnosis of a disability that is separate and distinct from his already service-connected mastoiditis, hearing loss and tinnitus, or whether such complaints are merely a symptom or symptoms of these service-connected disabilities. If the examiner identifies a specific diagnosis related to the Veteran's complaints of dizziness, vertigo and balance problems, the examiner should render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the identified disorder had its onset in service or is otherwise related to any injury, disease or event incurred in service; or, in the alternative, whether it is at least as likely as not (i.e., at least a 50 percent probability) that identified disorder is proximately due to, related to, or has been aggravated by his service-connected mastoiditis, hearing loss and/or tinnitus. [The examiner is informed that "aggravation" refers to an identifiable, incremental, permanent worsening of the underlying condition, as contrasted with temporary or intermittent flare-ups of symptoms.] The examiner should give a detailed explanation for the reasons for the opinion(s) provided, including the reasons for accepting or rejecting the Veteran's theory(ies) of entitlement, and should set forth in detail and citation to the evidence and/or medical/scientific literature supportive of the opinion provided. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 4. After ensuring compliance with VA's duty to assist (including that the VA examination report is adequate), the Veteran's claim should be readjudicated. If such action does not resolve the claim, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for further appellate review, if in order. 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 2014). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs