Citation Nr: 18154048 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-35 625 DATE: November 29, 2018 ORDER The claim for entitlement to service connection for vertigo is reopened. The claim for entitlement to service connection for depression is reopened. New and material evidence sufficient to reopen the claim for entitlement to service connection for Meniere’s disease has not been received. Entitlement to service connection for vertigo is granted. REMANDED Entitlement to service connection for depression is remanded. FINDINGS OF FACT 1. A November 2005 rating decision denied entitlement to service connection for the claims of vertigo and Meniere’s disease; the Veteran did not perfect these appeals. 2. Additional evidence received since the November 2005 rating decision is new to the record, relates to an unestablished fact necessary to substantiate the merits of the claim of service connection for a vertigo, and raises a reasonable probability of substantiating that claim. 3. Additional evidence received since the November 2005 rating decision is new to the record, but does not relate to an unestablished fact necessary to substantiate the merits of the claim, and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for Meniere’s disease. 4. A June 2007 rating decision denied entitlement to service connection for depression; the Veteran did not file a notice of disagreement with this rating decision. 5. Additional evidence received since the June 2007 rating decision is new to the record, relates to an unestablished fact necessary to substantiate the merits of the claim of service connection for a depression, and raises a reasonable probability of substantiating that claim. 6. The Veteran’s vertigo is caused by his service-connected hearing loss. CONCLUSIONS OF LAW 1. The November 2005 rating decision denying service connection for vertigo and Meniere’s disease is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. The June 2007 rating decision denying service connection for depression is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 3. New and material evidence has been received sufficient to reopen the claim of service connection for vertigo. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. New and material evidence has not been received sufficient to reopen the claim for service connection for Meniere’s disease. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. New and material evidence has been received sufficient to reopen the claim of service connection for depression. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 6. The criteria for entitlement to service connection for vertigo have all been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1976 to June 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Claims to Reopen Where service connection for a disability has been denied in a final decision, a subsequent claim of service connection for that disability may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). I. Vertigo The Veteran’s claim of entitlement to service connection for vertigo was initially denied in a December 1998 rating decision. The rating decision denied the claim because no nexus was established between the Veteran’s current vertigo and his in-service complaints. The Veteran filed a notice of disagreement with this rating decision in February 1999. A statement of the case (SOC) was issued in February 1999. The Veteran did not file a VA Form 9 for this claim. Therefore, the rating decision is final. 38 C.F.R. § 20.1103. This Veteran has submitted several requests to reopen his claim for service connection for vertigo. A rating decision denied reopening for this claim in November 1999. In a November 2005 rating decision, the RO found sufficient evidence had been presented to reopen the claim of service connection for vertigo. However, the rating decision denied the claim because no nexus was established between the Veteran’s current vertigo and his in-service complaints. The Veteran filed a notice of disagreement (NOD) in November 2006. An SOC was issued in July 2006. The Veteran did not file a VA form 9 for this claim. Therefore, the November 2005 rating decision is the last final disallowance on this claim. The evidence associated with the claims file subsequent to the November 2005 rating decision includes an August 2014 private physician opinion from R.B., M.D. The physician stated that the Veteran’s dizziness/vertigo is at least as likely as not due to in-service disease. This evidence is new, in that it was previously not of record. As noted above, the RO denied service connection for vertigo because there was no nexus established between the Veteran’s vertigo and in-service complaints. Accordingly, this opinion relates to the unestablished element of nexus, and raises a reasonable probability of substantiating the claim. As such, new and material evidence has been presented to reopen the previously denied claim of service connection for vertigo. II. Meniere’s disease The Veteran’s claim for entitlement to service connection for Meniere’s disease was initially denied in a February 2000 rating decision. The rating decision denied the claim for no current disability. The Veteran has submitted several requests to reopen his claim for service connection for Meniere’s disease. Rating decision denied reopening for this claim in July 2004 and November 2004. In a November 2005 rating decision, the RO found new and material evidence had been submitted sufficient to reopen the claim. However, the rating decision denied the claim based on no nexus between the Veteran’s current diagnosis of Meniere’s disease and his service. The Veteran filed a notice of disagreement (NOD) in November 2006. An SOC was issued in July 2007. The Veteran did not file a VA form 9 for this claim. Therefore, the November 2005 rating decision is the last final disallowance on this claim. The evidence before the VA at the time of the July 2007 SOC rating decision relating to this claim consisted, in part, of the Veteran service medical records; an August 2005 VA examination; Houston VA Medical Center and Cincinnati VA Medical Center treatment records; the Veteran’s lay statement; and lay statements from the Veteran’s relatives. The Veteran filed an additional request to reopen his claim for entitlement to service connection for Meniere’s disease in 2010. A March 2012 rating decision denied reopening as no new and material evidence had been submitted. The evidence associated with the claims file following the July 2007 SOC and relating to the claim for service connection for Meniere’s disease are an August 2014 private opinion from R.B., M.D.; January 2016 and May 2016 VA examiner opinions; Cincinnati VA Medical Center treatment record, Houston VA Medical Center records. The evidence associated with the claims file since the July 2007 SOC does not relate to or raise a probability of establishing a nexus between the Veteran’s service and Meniere’s disease. The August 2014 private opinion found that the Veteran had Meniere’s-like symptoms, but that his symptom profile did not fit the classic pattern of Meniere’s. As such, this opinion does not relate to establishing a nexus between Meniere’s disease and the Veteran’s service. The January 2016 VA examination found the Veteran’s vertigo was likely related to service, however, it was silent on a nexus for Meniere’s disease. The May 2016 VA examiner opinion found the Veteran did not fit the diagnostic criteria for Meniere’s disease. As such, the VA examinations do not raise a reasonable probability of establishing a nexus between service and Meniere’s disease. After a review of the evidence mentioned above, the Board finds that new and material evidence relating to the Veteran’s claim of entitlement to service connection for Meniere’s disease has not been received, and the claim may not be reopened. The evidence discussed above is new in that it was not previously before the Board. However, none of this evidence is material for purposes of reopening the claim. Therefore, the claim may not be reopened, and the appeal must be denied. There is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. III. Depression The Veteran’s initial claim for entitlement to service connection for depression, to include a secondary to Meniere’s disease, was denied in a June 2007 rating decision. The rating decision denied the claim on the basis that there was no in-service incurrence or aggravation of depression, and service connection has not been established for Meniere’s disease. The Veteran did not file an NOD with respect to this rating decision. As such, the June 2007 rating decision is final. 38 C.F.R. § 20.1103. The Veteran filed a request to reopen his claim for entitlement to service connection for depression, claimed as secondary to vertigo and Meniere’s disease, in July 2010. As further detailed below, the Board has granted service connection for vertigo in this decision. As such, there is new and material evidence that goes to an unestablished fact necessary to substantiate the claim on a secondary basis. As noted above, the claim was previously denied on a secondary basis because service connection had not been established for vertigo and Meniere’s disease. Therefore, new and material evidence has been presented to reopen the previously denied claim of service connection for depression. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). “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”- the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disability. See 38 C.F.R. § 3.310(a). Service connection will also be granted on a secondary basis for an additional disability that results from aggravation of a non-service connected disability by a service connected disability. Vertigo The Veteran contends that his vertigo is related to his service, or was caused or aggravated by his service connected hearing loss and tinnitus. The Board finds the preponderance of the evidence supports finding that the Veteran’s vertigo is caused by his service connected hearing loss. A January 2016 VA examiner found the Veteran had a diagnosis of vertigo. As such, the first element for establishing service connection has been met. An August 2014 private physician stated that it is as likely as not that the Veteran’s hearing loss and dizziness/vertigo are due to in-service disease of hearing loss. The physician stated that while the Veteran did not have true vertigo on nystagmography and related tests, his vertigo and dizziness syndrome are part of the same disease process as his service-connected hearing loss. The Veteran attended a VA examination in January 2016. The examiner stated that vertigo by nature is hard to corelate, but given the onset of the Veteran’s symptoms, he found it was likely related to the Veteran’s otologic trauma while in the military. A May 2016 VA examiner reviewed the Veteran’s records. He found that vertigo was less likely than not proximately due to or the result of the Veteran’s service connected hearing loss. He stated that the Veteran’s ENG (electronystagmography) was normal, there therefore he does not have true vertigo (no vestibular dysfunction). The examiner found that vertigo is a symptom and not a condition. The Board finds the private opinion, and both 2016 VA examiner opinions probative of finding a relationship between the Veteran’s service connected hearing loss and vertigo. Although the private physician and May 2016 VA examiner did not find a diagnosis of true vertigo, they noted that the Veteran exhibited vertigo and dizziness related to his service-connected hearing loss. As such, the preponderance of the evidence supports that the Veteran’s vertigo is caused by his service-connected hearing loss. Therefore, the Board finds that the Veteran is entitled to service connection on a secondary basis for vertigo. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND The Veteran contends that he suffers from depression due to not being able to work and not having any form of social life, which is caused in part by his vertigo. He stated that much of the day he stays in bed due to severe nausea and dizziness and has daily functioning has been poor. The Board notes that the record does not contain a VA examination for depression. As such, remand is required for the RO to schedule the Veteran for a VA examination and to obtain an adequate opinion regarding service connection for depression The matters are REMANDED for the following action: 1. Send a letter to the Veteran requesting that he identify all VA and non-VA health care providers. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide Veteran and his representative the required notice and opportunity to respond. 2. After all available records are associated with the claims file, the AOJ must ensure that the Veteran is scheduled for a VA examination regarding depression. The examiner must review the claims file in conjunction with the examination. The examiner should provide an opinion on the following questions, with complete rationale to support any conclusions reached: (a.) Is it as least as likely as not (a 50 percent or greater probability) that the Veteran’s depression was caused by his service-connected disabilities, to include vertigo? (b.) Is it as least as likely as not (a 50 percent or greater probability) that the Veteran’s depression was aggravated (chronically worsened beyond its natural progression) by his service-connected disabilities? JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Norah Patrick, Associate Counsel