Citation Nr: 1817073 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 13-09 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a disability manifesting as vertigo. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Gibson INTRODUCTION The Veteran served on active duty from September 1990 to October 1993. This appeal to the Board of Veterans' Appeals (Board) is from a November 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In October 2015, the Veteran had a personal hearing before a member of the Board. Since then, that VLJ has left the Board. In January 2018, the Veteran was notified of this, and advised that she could have another hearing before a current VLJ. The Veteran responded that she does not want a hearing. In January 2017, the Board remanded these issues for additional development. Unfortunately, that development was not substantially completed, and these matters must again be REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND The Veteran must be given updated VA examinations. In December 2015 and January 2017, the Board requested that the Veteran be examined by an otolaryngologist for a diagnosis and VA medical opinion. This has not been completed. See Stegall v. West, 11 Vet. App. 268 (1998). In July 2017, the VA examiner, an audiologist, indicated that BVA directives do not require that otolaryngologists conduct audiograms and that the VA examination questionnaire indicates that an audiogram must be conducted by a state-licensed audiologist. He also indicated that otolaryngologists are not qualified to conduct audiograms. The Board notes that federal regulations require that audiograms be conducted by a state-licensed audiologist. 38 C.F.R. § 4.85 (2017). The Board also notes that it appears possible in this situation for a state-licensed audiologist to conduct the audiogram, and then forward the results to an otolaryngologist. The otolaryngologist then could review those results, conduct an appropriate physical examination, and formulate a medical opinion. The July 2017 VA examination clarification does not indicate any other barrier to having an otolaryngologist review this case. Therefore, on remand, an updated hearing test shall be conducted by an audiologist, and an ears disease VA examination shall be conducted by an otolaryngologist. In regard to hearing loss, the Board notes that the March 2017 VA examiner did not diagnose sensorineural hearing loss, but rather indicated the results were not valid for rating purposes and did not indicate organic hearing loss. The Veteran shall be given an updated hearing test for a determination as to whether she has a current diagnosis. The Veteran's VA treatment records show a diagnosis of sensorineural hearing loss, but the records do not contain the corresponding audiograms. The record shows that there she was given hearing tests in November 2009 and August 2011, and that it appears a follow up audiogram was given in July 2016. On remand, an attempt to locate these VA audiograms shall be made. In regard to vertigo, the Board notes the Veteran was diagnosed with Meniere's disease or endolymphatic hydrops at the March 2017 VA examination, but that the examiner opined against a relationship to service because of a lack of documentation of vertigo in service. This is insufficient reasoning. She was objectively diagnosed with vertigo at the February 2017 VA examination, and is competent to attest to its presence. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The examiner did not adequately consider her reports that vertigo began while in service. The VA examiner also did not adequately comment on whether the diagnosis was related to the Veteran's service-connected tinnitus, PTSD, or fibromyalgia. Finally, the Veteran has asserted that her vertigo is a symptom of her PTSD. On remand, an appropriate VA examiner with expertise in psychology shall provide an opinion. Accordingly, the case is REMANDED for the following action: 1. Make all reasonable efforts to obtain VA audiograms dated in November 2009, August 2011, and July 2016, as well as any other audiograms that are of record. 2. After completing directive #2, schedule the Veteran for an updated hearing test. The examiner is asked to provide comment on whether the results are valid, and if not, what steps were taken to obtain valid results. If VA audiograms have been associated with the file, the examiner is asked to interpret the information and present the results in numerical format. 3. After completing directive #2, schedule the Veteran for an ears disease examination with an otolaryngologist. The examiner is asked to conduct a complete examination along with all necessary diagnostic tests. The examiner is asked to provide an opinion as to whether the Veteran has sensorineural hearing loss, and if so, whether it is as likely as not (at least 50 percent probability) that it is related to noise exposure in service. For any other type of hearing loss, the examiner is asked whether it is related to treatment and symptoms for ear infections while in service, or was caused or aggravated by her service-connected disabilities (tinnitus, fibromyalgia, and PTSD). The Veteran has been diagnosed with Meniere's disease or endolymphatic hydrops, which the VA examiner opined was not related to service because there was no documentation of vertigo in service. This is not dispositive of the question. The examiner did not consider her statements that it began in service, and did not explain why he did not find her statements useful to the question. The examiner is asked to elicit from the Veteran a detailed history of her symptoms, and to provide an opinion on whether it is as likely as not (at least 50 percent probability) that Meniere's disease, endolymphatic hydrops, vertigo, or any other ear diagnosis is related to the symptoms in service. An opinion on whether vertigo is likely as not caused or aggravated by her tinnitus, fibromyalgia, or PTSD is to be obtained. "Aggravated" means to cause any increase in severity that is beyond the normal progression of the disability. The examiner should comment on the relationship between Meniere's disease and her service-connected tinnitus. The Veteran asserts the medication she has taken over the years has caused vertigo. She testified to taking: gabapentin (for fibromyalgia), tramadol (to sleep, which is effected by PTSD), Zoloft (depression), acetaminophen, antiburate, and nosferal. The examiner is asked to comment on these particular medications and whether they have caused or aggravated vertigo. All opinions are to be supported with explanatory rationale. The examiner is asked to cite to any medical literature that is relied upon in rendering an opinion. 4. After completing directive #1-2, obtain a VA medical opinion from an appropriate clinician as to whether it is as likely as not (at least 50 percent probability) that her vertigo is a psychosomatic symptom resulting from her service-connected psychiatric disability. It is up to the discretion of the examiner as to whether an in-person examination is more appropriate. If so, please notify the scheduling authority. 5. After completing all of the above, and any additional development deemed warranted, readjudicate the claims on appeal. If the benefit on appeal remains denied, furnish the Veteran and her representative with a copy of a supplemental statement of the case (SSOC) and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. 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). 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). _________________________________________________ Nathaniel J. Doan 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).