Citation Nr: 21068389 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 18-28 383 DATE: November 10, 2021 ORDER New and material evidence having been received, the claim of service connection for Meniere's disease, previously claimed as vertigo, is reopened and, to this extent only, the appeal is granted. REMANDED The issue of service connection for Meniere's disease, to include as related to service-connected bilateral hearing loss and/or tinnitus, is remanded. FINDINGS OF FACT 1. In a final May 2013 rating decision, the RO denied the Veteran's claim of service connection for vertigo. 2. Evidence associated with the record since the final May 2013 rating decision is not cumulative and redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of service connection for Meniere's disease, previously claimed as vertigo. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of service connection for Meniere's disease, previously claimed as vertigo. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from September 1986 to August 1990. New and material evidence has been received to reopen the claim of service connection for Meniere's disease and, to this extent only, the appeal is granted. The issue of service connection for Meniere's disease will be remanded for a VA addendum opinion regarding the etiology of the condition. New and Material Evidence New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with 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. 38 C.F.R. § 3.156(a) (2017). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion. Id. For purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. New and material evidence having been received, the claim of service connection for Meniere's disease, previously claimed as vertigo, is reopened and, to this extent only, the appeal is granted. The Veteran's claim was previously denied in May 2013. He was notified of the outcome and did not file a notice of disagreement within one year, nor was any additional evidence pertinent to the claim received within one year of the May 2013 decision. The May 2013 rating decision became final based on the evidence then of record. The evidence considered in May 2013 includes service treatment records (STRs), July 2010 and April 2013 VA examinations, VA treatment records, and lay statements. The May 2013 rating decision denied the Veteran's claim based on the RO's finding that there was no evidence of the condition in-service, nor a medical nexus between the condition and his service. Since the last final rating decision, the evidence pertaining to the Veteran's claimed condition includes VA medical records, April and September 2017 VA examinations, medical literature, lay statements, and August 2021 Board hearing testimony. The evidence has not been previously considered and is evidence which tends to substantiate the previously denied claim. See Shade, 24 Vet. App. at 120-21. The evidence is both new and material, and the reopening of this claim is warranted. REASONS FOR REMAND The issue of service connection for Meniere's disease, to include as related to service-connected bilateral hearing loss and/or tinnitus, is remanded. The matter is REMANDED for the following action: 1. RETURN THIS CASE TO THE SEPTEMBER 2017 VA EXAMINER and request a further addendum. If that examiner is no longer available, schedule the Veteran for a VA examination with an appropriate VA examiner regarding the etiology of his Meniere's disease. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultations should be accomplished, and all clinical findings should be reported in detail. An explanation should be given for all opinions and conclusions rendered. The examiner must respond to the following: (a.) The examiner is ADVISED that the Veteran is PRESUMED to have been exposed to acoustic trauma in-service while working as a power generation equipment repairer. (b.) Identify whether the Veteran's Meniere's disease was caused by, aggravated by, or is otherwise related to his service-connected bilateral hearing loss and/or tinnitus, to include PRESUMED in-service exposure to hazardous noise levels. (c.) The examiner MUST specifically discuss the National Institutes of Health (NIH) information that the Veteran submitted in August 2021, indicating that Meniere's disease is thought to be related to abnormalities of the inner ear, which contains structures that are needed for normal hearing and balance, and that episodes of vertigo, tinnitus, and hearing loss likely result from fluctuating amounts of fluid in the inner ear. (d.) The examiner MUST address the Veteran's reports of first experiencing symptoms of vertigo, nausea, and loss of balance in-service, along with experiencing tinnitus. (e.) THE EXAMINER MUST ALSO EXPRESS AN OPINION OF WHETHER THE VETERAN'S ACCOUNT OF THE DEVELOPMENT OF THE DISORDER IS CONSISTENT WITH THE MEDICAL EVIDENCE AND THE EXAMINER'S KNOWLEDGE AND PRACTICE EXPERIENCE. (f.) If the examiner determines that the Veteran's Meniere's disease was not caused by, aggravated by, or is otherwise related to his service-connected bilateral hearing loss and/or tinnitus, to include in-service exposure to hazardous noise levels, to the extent possible, provide an opinion as to the likely etiology of the condition. (g.) The examiner MUST provide a complete and full explanation for the opinions provided. (h.) The examiner is ADVISED that an opinion without a complete and full explanation is not adequate. The examiner MUST review the entire record in conjunction with rendering the requested opinions. In addition to any records that are generated because of this Remand, the VA examiner's attention is drawn to the following: * The Veteran is presumed to have been exposed to acoustic trauma in-service while working as a power generation equipment repairer. * The June 1986 report of medical examination at service entrance shows a normal clinical evaluation of the ears. The June 1986 report of medical history shows that the Veteran denied then having or ever having had ear, nose, or throat trouble. * The November 1986 audiogram. * An October 1987 STR shows a normal evaluation of the ears. * A November 1987 STR shows that the Veteran's ears were evaluated as "clear." * The March 1990 audiogram. * The March 1990 report of medical examination at service separation shows a normal clinical evaluation of the ears. * The Veteran's bilateral hearing loss and tinnitus are service connected. * The Veteran has a current diagnosis of Meniere's disease. * The July 2010 VA examination shows that the Veteran reported that his tinnitus began in 1988/1989. * In August 2010, the Veteran reported that, along with hearing impairment, he experienced vertigo, nausea, and loss of balance. He reported a recent incident at a grocery store when he lost his balance "from a sudden rush of vertigo." He reported that these episodes last five to ten minutes in duration and occur "quite often." The Veteran reported his belief that his vertigo is related to his tinnitus, which onset in-service. * In February 2013, the Veteran stated, "as my bilateral tinnitus has worsened, so have the bouts of vertigo I suffer." * The April 2013 VA examination shows a diagnosis of Meniere's disease; the date of onset is noted as unknown. * The April 2017 VA examiner stated that the type of exposure to hazardous noise levels that the Veteran experienced in-service has been demonstrated to create cochlear damage, resulting in cochlear hearing loss and tinnitus. * The September 2017 VA ear conditions examiner noted that the course of the Veteran's condition since onset includes symptoms of hearing loss, dizziness, and falling on a regular basis. * Various lay statements submitted in September 2017, which report the Veteran's symptoms dizziness, loss of balance, and falling. * The NIH information submitted in August 2021. * During the August 2021 Board hearing, the Veteran testified that he first experienced dizzy spells, along with tinnitus, in-service in 1988. A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinions cannot be made without resorting to speculation. The examiner is advised that by law, the mere statement that the claims folder was reviewed, and/or the examiner has expertise is not sufficient to find the examination/opinion sufficient. 2. Following the review and any additional development deemed necessary, re-adjudicate the claim. Should the claim not be granted in its entirety, issue an appropriate supplemental statement of the case (SSOC), and forward the claim to the Board for adjudication. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON THE NEXT PAGE) 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. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.