Citation Nr: 1808795 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 14-05 086 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for vertigo, claimed as dizzy spells, to include as secondary to service-connected bilateral hearing loss and/or tinnitus. 2. Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Clark, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1974 to May 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2011 by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. During the hearing, the undersigned held the record open for a period of 60 days for the submission of additional evidence. Such evidence was received later that same month. This new evidence is subject to initial review by the Board because the Veteran filed his substantive appeal in January 2014, which was after February 2, 2013, when the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012 became effective, and he has not requested that the Agency of Original Jurisdiction (AOJ) initially review such evidence. See 38 U.S.C. § 7105(e)(1) (2012)); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). In regard to his service connection claim, the Veteran contends that he has vertigo that is related to his military service or, in the alternative, secondary to his service-connected bilateral hearing and/or tinnitus. The Board notes that the Veteran's complete service treatment records (STRs) are unavailable, and only his May 1974 entrance examination and report of medical history are associated with the record. The Veteran's post-service treatment records reveal that he sought treatment for complaints of dizziness and vertigo. See April 19, 1999; January 1, 2000; March 17, 2003; May 15, 2008; and May 18, 2011 treatment records. Additionally, a January 2015 VA treatment record indicated that the Veteran continued to have vertigo and took medication for it. An assessment of vertigo was also noted. In a January 2015, a VA examiner opined that the Veteran's dizziness was less likely as not caused by or the result of hearing loss and/or tinnitus. In support thereof, the examiner explained that Meniere's disease or vertigo was caused by the result of an abnormal volume or composition of fluid in the ear. The examiner also explained that hearing loss and tinnitus could often result from Meniere's disease or vertigo, but they did not cause it. In this regard, he noted other causes of Meniere's disease and vertigo. However, the Board finds that a remand is necessary in order to obtain an addendum opinion. In this regard, while the January 2015 VA examiner adequately addressed whether the Veteran's bilateral hearing loss and/or tinnitus caused his vertigo, he did not provide an opinion as to whether such disorder was directly related to his military service, or aggravated by his bilateral hearing loss and/or tinnitus. Therefore, a remand is warranted to obtain an opinion addressing such matters. In regard to the Veteran's claim for an initial compensable rating for bilateral hearing loss, at the November 2016 Board hearing, he indicated that his bilateral hearing loss had worsened since his last VA examination in December 2010. Thus, the Board finds that a remand is warranted in order to provide the Veteran a contemporaneous VA examination so as to assess the current nature and severity of his bilateral hearing loss. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Additionally, the Veteran also stated that he had a recent hearing exam the prior month and submitted an October 2016 VA treatment record indicating he was seen for an updated audiogram. However, such audiogram and its results are not associated with the record. Thus, the Board finds that a remand is necessary to obtain a copy of the missing audiogram and associate it with the Veteran's claims file. In this regard, the AOJ is advised that such may be contained in VISTA Imaging rather than CAPRI. Furthermore, at the November 2016 Board hearing, the Veteran stated that he started receiving treatment from VA, to include for his dizziness, in 1978 from the Audie Murphy and McAllen facilities. In this regard, the current record contains VA treatment records dated from July 2004 to July 2015. Therefore, on remand, attempts should be made to obtain such records. Updated VA treatment records dated from July 2015 to the present should also be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. Please obtain the following records: (A) All of the Veteran's VA treatment records not already associated with the claims file, to include records from 1978 to July 2004, and from July 2015 to present. (B) The October 2016 VA audiogram display. In this regard, the AOJ is advised that such may be contained in VISTA Imaging rather than CAPRI. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After all outstanding records have been obtained, return the record to the VA examiner who provided the January 2015 VA opinion. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. If the January 2015 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. (A) The examiner must identify all currently diagnosed disorders relating to the Veteran's dizziness and balance problems, to include vertigo and/or Meniere's disease. If the examiner finds that the Veteran did not have such a diagnosis at any time during the pendency of his claim, such a finding should be reconciled with the evidence of record indicating the Veteran has vertigo, to include a January 2015 VA treatment record. (B) For each identified disorder, the examiner must opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such disorder had its onset in, or is otherwise related to the Veteran's military service. The examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran's service treatment records are silent as to treatment or a diagnosis of such disorder. (C) For each identified disorder, the examiner must opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such disorder is aggravated by the Veteran's bilateral hearing loss and/or tinnitus. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. A rationale for any opinion offered should be provided. 3. The Veteran should be afforded a VA audiological examination in order to determine the current nature and severity of his bilateral hearing loss. Specifically, the examiner should identify auditory thresholds, in decibels, at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz. A Maryland CNC Test should also be administered to determine speech recognition scores. Any additional evaluations, studies, and tests deemed necessary by the examiner should be conducted. The examiner is also requested to describe the functional effects caused by the Veteran's current bilateral hearing loss. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 (2012). _________________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).