Citation Nr: 1759970 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 10-33 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for vertigo, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1970. He has confirmed service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In June 2014, the Veteran testified before the undersigned Veterans Law Judge, at a hearing held at the RO. A transcript of that hearing is of record. This case has a lengthy procedural history. The matter was previously before the Board in July 2014 and August 2015, on which occasions it was remanded for further development. In September 2016, the Board issued a decision denying the claim. The Veteran appealed that denial to the Court of Appeals for Veterans Claims (Court), and in October 2017, the Court granted a Joint Motion for Remand (JMR) in which the parties agreed that the Board's decision was inadequate. The matter has since been returned to the Board for further compliance with the JMR. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board denied the Veteran's claim in September 2016. Particularly, the Board found that the Veteran's vertigo was not directly related to any in-service trauma, or in the alternative, was not secondary to any other service-connected disability, to include hearing loss, tinnitus, and heart disease. The Court granted a JMR in October 2017 reversing the Board's prior decision and remanding for specific development. Specifically, the parties agreed that the record was incomplete at the time of the Board's denial because several VA treatment records from July 2009 were not of record, and the parties agreed that those records contain "potentially relevant evidence." In July 2017, prior to the Court granting the JMR, the complete VA treatment record was associated with the claims file. Therefore, to the extent that the treatment records the JMR referenced as missing at the time of the prior decision have since been associated with the claims file, the Board finds that a remand to obtain those records is not necessary at this time. However, upon review of the entire claims file, to include all VA treatment records available through July 2017 and the prior VA examinations and opinions, the Board would seek a new examination which addresses any deficiency raised by the recently associated treatment records. In particular, although the December 2014 and May 2015 examinations and the March 2016 addendum opinion addressed direct service connection, the July 2009 records address a possibility of the Veteran's vertigo being caused by a Eustachian tube disorder. Particularly, the July 23, 2009, record indicates that such a disorder may be associated with the Veteran's tinnitus. See VBMS, CAPRI, 7/18/2017, p. 572-73. The Board also observes that such a Eustachian tube disorder is referenced again in VA treatment records from January 2010 (see id., p. 562), and again in October 2013 (see id., p. 366). Further, after the final VA medical opinion was rendered in March 2016, additional VA treatment records from October of that year attributed the Veteran's vertigo to a vestibular issue (see id., p. 50). This raises an additional question because the December 2014 VA examiner's opinion lists "hearing loss" as a potentially causative vestibular issue, although the examiner did not opine whether that was a direct cause of his vertigo (indeed, the opinion appears to opine exclusively as to any idiopathic causation, such as causation by aural or concussive trauma in service, as opposed to vestibular causation). See VBMS, C&P Examination, 1/7/2015). Finally, to the extent that the complete VA treatment records indicate at least some possible correlation between vertigo and a vestibular condition, the issue of aggravation beyond natural progression by hearing loss and tinnitus has not been sufficiently addressed. As such, the Board finds that a new examination should be conducted which completely addressed service connection secondary to service-connected hearing loss or tinnitus, and in contemplation of the complete treatment record. Finally, to the extent that the specific records referenced in the JMR addressed possible causation or aggravation by an inner ear issue, the Board finds that obtaining a further medical opinion regarding direct causation by in-service trauma or secondary to service-connected heart disease is not necessary at this time. Accordingly, the case is REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his claim. 2. Schedule the Veteran for a new ear, nose and throat examination. The complete claims file, including the available VA treatment records and a copy of this remand, should be made available to the examiner selected to conduct the examination. The examiner should conduct a thorough and comprehensive examination of the Veteran, to include taking a detailed history and conducting any testing deemed necessary. The examiner should then provide a diagnosis for the Veteran's vertigo symptoms. Thereafter, the examiner should provide the following opinions: * Is it at least as likely as not that the Veteran's vertigo is caused by, or is otherwise etiologically related to, the Veteran's service-connected hearing loss and/or tinnitus? * Is it at least as likely as not that the Veteran's vertigo has been worsened beyond its natural progression by his service-connected hearing loss and/or tinnitus? In addressing the requested opinions, the examiner is requested to explicitly comment on the July 2009 VA treatment records which attribute his vertigo to a possible Eustachian tube disorder. Likewise, the examiner should address the December 2014 examiner's opinion which listed hearing loss as a potential causative vestibular issue, and the 2016 VA treatment records which also attribute his disability to a vestibular issue. A comprehensive discussion of how the requested opinions were reached would be of assistance to the Board in adjudicating this claim, to include citation to evidence in the record, known medical principles, and medical treatise evidence, where applicable. 3. Thereafter, readjudicate the claim on appeal in light of all evidence of record. If the benefit should remain denied, issue a supplemental statement of the case and afford the Veteran and his representative adequate time to respond before returning the matter to the Board for further appellate review. 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). _________________________________________________ ERIC S. LEBOFF 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) (2017).