Citation Nr: 1801022	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  11-28 093	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to service connection for Meniere's syndrome.

2.  Entitlement to a disability rating in excess of 10 percent for bilateral pes planus with plantar fasciitis.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

K. Mitchell, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1995 to August 2000 and from January 2002 to December 2002.

These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2009 and July 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  The May 2009 rating decision denied a rating in excess of 10 percent for bilateral pes planus with plantar fasciitis.  The July 2010 rating decision denied the claim to reopen service connection for Meniere's syndrome on the basis of no new and material evidence submitted.

In September 2017, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.  

The issue of entitlement to service connection for Meniere's syndrome was initially denied in an April 2005 rating decision.  In an April 2005 letter to the appellant, the RO informed him of its decision.  The appellant did not submit a timely notice of disagreement (NOD) to the April 2005 rating decision, nor did he submit any additional evidence within a year following its issuance.  See 38 C.F.R. § 3.156(b) (2017); Buie v. Shinseki, 24 Vet. App. 242 (2010).  Thus, the April 2005 rating decision became final one year later.  38 C.F.R. § 3.156 (2017).

In February 2010, the Veteran submitted a claim to reopen his previously denied claim for service connection for Meniere's syndrome.  In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156.  In support of the petition to reopen, the appellant submitted service treatment 

records reflecting that he had been prescribed Meclizine, a medication used to treat dizziness, in May 1999 while on active duty.  It does not appear that this official service treatment record was of record at the time the RO previously considered the claim in April 2005.  Under current regulations, notably, 38 C.F.R. § 3.156(c)(1), at any time after VA issues a decision on a claim, if VA receives or associates with the record relevant official service department records that existed and had not been associated with the record when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section.  Under the applicable regulations, the addition to the record of official service records not previously available requires reconsideration of prior decisions, rather than evaluating claims under a new and material evidence to reopen standard.  See 38 C.F.R. § 3.156(c).  Since relevant service records in existence but unavailable at the time of the prior final rating decision have been obtained and added to the record, the provisions of 38 C.F.R. § 3.156(c) are for application.  The newly received official service department records are relevant to the appellant's claim because they show that he was treated for and prescribed medications for dizziness and symptoms of vertigo during active duty; thus, the Board finds that that there is a sufficient basis under provisions of 38 C.F.R. § 3.156(c) to reconsider the appellant's claim on the merits, and the receipt of new and material evidence is not required. 

The issue of entitlement to a disability rating in excess of 10 percent for bilateral pes planus with plantar fasciitis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if additional action is required on his part.


FINDING OF FACT

The Veteran has Meniere's syndrome which manifested during active duty service and has been symptomatic since service.  



CONCLUSION OF LAW

The criteria for service connection for Meniere's syndrome have been met.  38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA Duties to Notify and Assist - VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017).  In this case, the Board is granting in full the issue decided herein.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered.

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017).  To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 

The Veteran contends that his currently diagnosed Meniere's syndrome with symptoms of dizziness and vertigo began in service and has continued since service.

Since the Veteran's service discharge in 2002, VA and private treatment records show treatment of vertigo and dizziness, as well as a June 2009 diagnosis of Meniere's syndrome.  In support for his claim, the Veteran submitted a copy of an official service record showing that in May 1999 he was prescribed Meclizine.  The Veteran states that he was taking that medication for his dizziness and balance issues in service.  Additionally, the Veteran submitted a March 2010 statement from Dr. K.S., stating that it is likely the Veteran's in-service dizziness and vertigo were not yet diagnosed as Meniere's syndrome, and that the Veteran still experienced persistent, sometimes severe, episodes of dizziness.  A March 2012 statement from Dr. M.K.P. states that the records showing Meclizine refills in 1999 indicate a long standing problem that was occurring, but perhaps not formally diagnosed, while on active duty.  

At the September 2017 Board hearing, the Veteran testified that the symptoms he had in service are the same symptoms he's had since service.  Based on this, and the information above, the Board finds that service connection is warranted for Meniere's syndrome.  The preponderance of the evidence supports the Veteran's claim, and service connection for Meniere's syndrome is granted.  See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017).


ORDER

Entitlement to service connection for Meniere's syndrome is granted.


REMAND

Although further delay is regrettable, the issue of entitlement to a disability rating in excess of 10 percent for bilateral pes planus with plantar fasciitis must be remanded for further development.

During the September 2017 Board hearing, the Veteran and his representative requested a new VA examination because the Veteran's bilateral foot disability has worsened since the April 2010 VA examination.  A July 2011 podiatry consult reflects that the Veteran had a decreased medial arch bilaterally with a gait analysis revealing increased angle of gait with bilateral excessive pronation.  A March 2012 statement from Dr. K.P. states that the Veteran has chronic foot pain with pes planus and pronation.  It does not discuss the severity of the pronation.  As the treatment notes since the last VA examination indicate a degree of pronation, whether it is severe, objective evidence of marked deformity (pronation, abduction, etc.) or pronounced; marked pronation is not clear.  To ensure the Veteran's bilateral foot disability is properly rated, and to avoid a premature determination, the Board finds a new VA examination is warranted to ascertain the current severity of the Veteran's bilateral pes planus with plantar fasciitis disability as the most recent examination is more than seven years old.

Accordingly, the case is REMANDED for the following action:

1.  Obtain the appropriate release of information forms where necessary, and procure any records of outstanding treatment that the Veteran has recently received.  All such available documents should be associated with the claims file.

2.  Following completion of the above, schedule the Veteran for a VA examination to determine the current severity of his service-connected bilateral pes planus with plantar fasciitis.  The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination.  All indicated studies should be performed.

The examiner should provide an opinion as to whether the Veteran's bilateral pes planus is mild, moderate, severe or pronounced, and should indicate whether there is evidence of marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use, any indication of swelling on use and/or characteristic callosities. In addition, the examiner should indicate whether there are symptoms such as marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, or severe spasm of the tendo Achilles on manipulation. The examiner should state whether the symptoms of pes planus are improved by orthopedic shoes or appliances.

3.  Thereafter, the AOJ should readjudicate the remaining issue on appeal.  If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered, and they should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review.

The appellant 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 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. §§ 5109B, 7112 (2012).



______________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs