Citation Nr: 1612836 Decision Date: 03/30/16 Archive Date: 04/07/16 DOCKET NO. 09-11 073A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for vertigo, to include as secondary to service-connected hearing loss and tinnitus. 2. Entitlement to service connection for dizziness, to include as secondary to service-connected hearing loss and tinnitus. 3. Entitlement to compensation under 38 U.S.C.A. § 1151 for vertigo, claimed as due to VA medical treatment at the Ashville, NC VA medical center (VAMC). 4. Entitlement to compensation under 38 U.S.C.A. § 1151 for dizziness, claimed as due to VA medical treatment at the Ashville, NC VAMC. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Biggins, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1963 to March 1967 and March 1976 to June 1976. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In March 2010, the Veteran provided testimony at a Travel Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. The case was most recently before the Board in January 2012, when it was remanded for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board remanded the case in January 2012 to provide the Veteran proper notice pertaining to his claim for compensation under 38 U.S.C.A. § 1151 and adjudication of that claim, as well as to obtain VA treatment records. The Veteran was provided proper notice in an April 2012 letter. The RO requested the Veteran's Ashville VAMC records for 1976 through 1977 and obtained an index card indicating the Veteran was a patient at the Ashville VAMC. The dates June 8, 1977 through June 11, 1977 were handwritten on the card, but the reason for the Veteran's admission was not noted. The Veteran's claim must be remanded again in order to obtain additional medical records. An August 2013 VA treatment record indicated that the Veteran's VA physician sent him to Mountain Lakes ENT in Seneca, SC, in order to determine an etiology for the Veteran's dizziness and vertigo. The Veteran was scheduled for videonystagmography (VNG) testing; however, the ENT specialist was unable to provide VNG testing at that time. The Veteran reported that the ENT specialist indicated his dizziness and vertigo were most likely due to a cardiac or neurological issue. It is not clear from the VA treatment records currently associated with the claims file if the Veteran was ever re-scheduled for VNG testing. An August 2013 VA treatment record noted that the Mountain Lakes ENT office notes were scanned into the Veteran's medical file, however, records from this visit have not been associated with the Veteran's claims file. Thus, as these records pertain to the Veteran's claim of a nexus between his dizziness and vertigo and his hearing loss and tinnitus the claim must be remanded in order to obtain the Mountain Lakes ENT records. A review of the claims folder revealed that there may be outstanding VA treatment records. The Veteran's claims file contains VA treatment records up until August 2014. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be in the constructive possession of VA adjudicators during the consideration of a claim regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462 (1998). For the sake of completeness if there are any outstanding VA treatment records dated after August 2014 they must be obtained on remand. Additionally, a new VA examination is needed. The Veteran was provided with a VA examination in April 2009 during which the examiner noted a notation of "equilibrium distorted" in the Veteran's Carolina Hearing Center records. The examiner indicated that the Veteran reported in a July 2008 statement that he was told his vertigo and dizziness were related to his hearing loss. The examiner noted that the Veteran had not been clinically evaluated for vestibular dysfunction at any time. The examiner concluded that the Veteran's dizziness and vertigo were not a result of his hearing loss because hearing loss does not cause dizziness or vertigo. The Board finds the April 2009 VA examination to be inadequate. The examiner noted that there had never been a clinical evaluation of the Veteran's vestibular dysfunction, but did not comment on whether such testing was needed to decide the claim. Further, the examiner did not address literature submitted by the Veteran that posited a positive connection between dizziness, vertigo, and hearing loss; but concluded, essentially, that no such connection was possible. Additionally, in September 2009 the Veteran submitted an Advanced Otolaryngology article on mastoiditis, indicating a connection between mastoiditis and vertigo, a medical dictionary insert from the free dictionary website, indicating dizziness can be associated with ear problems, and an AOL search inquiry, which shows several article titles and summaries indicating a link between dizziness, vertigo, hearing loss, and tinnitus. That literature, which directly contradicts the examiners conclusion that hearing loss does not cause dizziness or vertigo, has not been addressed by a subsequent opinion. Therefore, a new VA examination is needed. With regard to the claim for compensation under 38 U.S.C.A. § 1151, the Veteran has consistently stated that he underwent mastoidectomy surgery at VA in 1976, which was performed negligently and thus caused his dizziness and vertigo. The Veteran stated that the surgeon started the surgery but was unable to complete it as the Veteran was inoperable. The RO has been unable to obtain any related records and made a formal finding of such in January 2013. The Veteran had presented evidence that he was in the hospital at the time he alleges the mastoidectomy surgery occurred, however the evidence does not specifically state what treatment the Veteran received while in the hospital. Thus, a VA examination is needed to determine if the Veteran's ear presents any evidence that he had received the mastoidecomty surgery. The Veteran submitted a May 2012 statement indicating that he was treated by a private physician Dr. H.M. for dizziness and vertigo following his separation from service; however, there are no private treatment records from Dr. H.M. associated with the Veteran's claims file. Thus, the Veteran's private treatment records from DR. H.M. must be obtained. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Attempt to obtain and associate with the claims file any and all outstanding VA treatment records to specifically include, all VA treatment records dated after August 29, 2014. 2. Obtain the address of the Mountain Lake ENT specialist. After securing the necessary release, take all appropriate action to obtain these records. Inform the Veteran and provide him with the chance to submit additional records. 3. Take all appropriate action to obtain treatment records from Dr. H.M., whom the Veteran identified as treating him for vertigo and dizziness after his separation from service. 4. After completion of steps 1 through 3, arrange for the Veteran to undergo an appropriate VA examination for vertigo and dizziness. The claims file should be made available to and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. Based on the examination and review of the record, the examiner should diagnose any dizziness or vertigo and identify the most likely etiology of any diagnosed dizziness and vertigo. The examiner must specifically address the following: (a) Whether it is at least as likely as not (i.e., probability of 50 percent or higher) that the Veteran's dizziness and vertigo are related to his period of service. (b) Whether it is at least as likely as not (i.e., probability of 50 percent or higher) that the Veteran's dizziness or vertigo is caused by vestibular dysfunction. (c) Whether it is at least as likely as not (i.e., probability of 50 percent or higher) that the Veteran's dizziness and vertigo are aggravated (permanent worsening beyond normal progression) by his service-connected hearing loss. The examiner should address whether any aggravation of the Veteran's dizziness or vertigo is proximately due to or a result of his service-connected hearing loss or tinnitus and not due to the natural progress of the disease. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of dizziness and vertigo present (i.e., a baseline) before the onset of the aggravation. Taking into consideration the literature provided by the Veteran; an Advanced Otolaryngology article on mastoiditis, indicating a connection between mastoiditis and vertigo; a medical dictionary insert from the free dictionary website, indicating dizziness can be associated with ear problems; and an AOL search inquiry, which shows several article titles and summaries indicating a link between dizziness, vertigo, hearing loss, and tinnitus. (d) Whether there is any evidence that the Veteran had a mastoidectomy or any other surgery in either of his ears, taking into consideration the Veteran's statement that the surgery occurred in 1977 and was not fully completed. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 5. The RO should then re-adjudicate the claims on appeal. If any remain denied, the RO should issue an appropriate statement of the case and afford the Veteran and his representative an opportunity to respond. The case should then be returned to the Board. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ M. E. LARKIN 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) (2015).