Citation Nr: 18154619 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-59 853 DATE: November 30, 2018 REMANDED Entitlement to service connection for temporomandibular joint dysfunction with residuals is remanded. Entitlement to service connection for a peripheral vestibular disorder is remanded. Entitlement to service connection for Meniere's syndrome is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1976 to August 1980. These matters come before the Board of Veterans’ Appeals (Board) on appeal of June 2016 (temporomandibular joint) and July 2016 (peripheral vestibular disorder and Meniere’s disease) rating decisions by the Department of Veterans Affairs (VA). Jurisdiction resides with the Regional Office (RO) in Muskogee, Oklahoma. The Board notes that additional VA treatment records have been received since the last statement of the case was issued, and the Veteran has not waived consideration by the agency of original jurisdiction. As the records are relevant to the issues on appeal, and non-duplicative of evidence previously considered, the RO must readjudicate the Veteran’s claimss with consideration of the additional evidence. 38 C.F.R. §§ 19.31, 19.37. The Veteran has not been provided with VA examinations for the disabilities at issue on appeal. VA’s duty to assist includes providing a medical examination when evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 U.S.C § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Regarding the claim for service connection for temporomandibular joint dysfunction with residuals, the Veteran has complained of recurrent jaw pain, including with episodes of locking, which he has attributed to dental work performed during military service. Although the RO found that the Veteran had not been diagnosed with a temporomandibular joint disability, the Board notes that pain causing functional loss may be considered a disability, even in the absence of a specific diagnosis. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Service treatment records reflect dental procedures, and the Veteran has alleged that such treatment caused his temporomandibular joint disability. Considering the foregoing, and cognizant that the third factor of McLendon is considered a “low threshold,” the Board finds that a VA examination is necessary before a decision may be made on the merits. See McLendon, 20 Vet. App. at 83. Additionally, the Veteran has complained of recurrent dizziness during the appeal period, and has been granted service connection for bilateral hearing loss and tinnitus. The United States Court of Appeals for Veterans Claims (Court) has previously held that recurrent dizziness, tinnitus, and deafness are symptoms of Meniere’s disease. See e.g. Vargas-Gonzalez v. West, 12 Vet. App. 321, 323-24 (1999) (“Meniere’s disease is ‘hearing loss, tinnitus, and vertigo resulting from nonsuppurative [(non-pus-producing)] disease of the [inner ear] labyrinth with the histopathologic feature of endolymphatic hydrops (distention of the membranous labyrinth)’ also called ‘recurrent aural vertigo.’”) (citing Dorland’s Illustrated Medical Dictionary 486 (28th ed. 1994)); Cromley v. Brown, 7 Vet. App. 376, 377 (1995) (“Meniere’s disease is a ‘disorder of the membranous labyrinth of the inner ear that is marked by recurrent attacks of dizziness, tinnitus, and deafness”); Hatlestad v. Brown, 5 Vet. App. 524, 526 (1993) (Meniere’s disease is a disorder of the inner ear that is marked by recurrent attacks of dizziness and deafness) (citing Webster’s Medical Desk Dictionary 422 (1986)). As there are symptoms of a current disability, and a possibility that it could be etiologically related to active service and/or a service-connected disability, the Board concludes that a VA examination is warranted to determine the nature and etiology of any inner ear disability before a decision may be made on the merits. See McLendon, 20 Vet. App. at 83; see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (while the Board may assess the credibility and weight given to medical evidence, the Board is not free to substitute its own judgment for that of a medical expert). The Veteran did not request a Board hearing on his VA Form 9. However, in October 2018, he submitted correspondence stating that he requested a hearing by live video-conference at a local VA office in conjunction with his pending appeal. Although the Board is able to schedule hearings through internal administrative processes, as these matters must be remanded for VA examinations and the issuance of an SSOC, the RO should conduct development on the hearing request. The Veteran receives VA medical treatment for the conditions noted on appeal; therefore, all outstanding, relevant VA treatment records should be procured. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from November 2018 to the present. 2. Thereafter, schedule the Veteran for a VA examination to determine the nature, severity, and etiology of any temporomandibular joint disability, to include pain which results in functional impairment. The claims file should be made available to the examiner for review, and the examination report should reflect that such review was completed. The examiner is asked to opine on the following: a) Is it at least as likely as not (50 percent probability or greater) that any temporomandibular joint disability, to include chronic pain productive of functional impairment, had its onset during or is otherwise etiologically related to active duty service, to include the Veteran’s in-service dental treatment? If the examiner does not diagnose temporomandibular joint disability, but finds the existence of chronic pain productive of functional impairment, such functional impairment must by described. A complete rationale should be expressed for all opinions proffered. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any inner ear disability, to include peripheral vestibular disorder and/or Meniere’s disease. The claims file should be made available to the examiner for review, and the examination report should reflect that such review was completed. The examiner is asked to opine on the following: a) Is it at least as likely as not (50 percent probability or greater) that any diagnosed inner ear disability, to include peripheral vestibular disorder and/or Meniere’s disease, had its onset during or is otherwise etiologically related to active duty service? b) Is it at least as likely as not (50 percent probability or greater) that any diagnosed inner ear disability, to include peripheral vestibular disorder and/or Meniere’s disease, is proximately due to or the result of a service-connected disability, to include service-connected tinnitus and/or bilateral hearing loss? c) Is it at least as likely as not (50 percent probability or greater) that any diagnosed inner ear disability, to include peripheral vestibular disorder and/or Meniere’s disease, was aggravated beyond its natural progression by a service-connected disability, to include tinnitus and/or bilateral hearing loss? If aggravation is found, the examiner is asked to address the following issues to the extent feasible: 1) the baseline manifestations of the identified inner ear disability, and 2) the increased manifestations which, in the examiner’s opinion, are proximately due to the Veteran’s service-connected hearing loss and/or tinnitus. Aggravation is defined as a worsening beyond the natural progression of the disease. The examiner must note that an opinion to the effect that one disability “is not caused by or a result of” another disability does not answer the question of aggravation and will necessitate a further opinion. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). A complete rationale should be expressed for all opinions proffered. The examiner is reminded that the term “at least as likely as not,” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against. 4. Thereafter, review the expanded record and readjudicate the issues on appeal. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. 5. If any benefit sought is not granted, schedule the Veteran for a Board hearing by live video-conference at the local VA facility. All development with respect to this directive, must be documented in the claims file. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Reed, Associate Counsel