92 Decision Citation: BVA 92-29459 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 90-49 073 ) DATE ) ) ) THE ISSUES 1. Entitlement to service connection for Meniere's syndrome. 2. Entitlement to an increased rating for bilateral defective hearing, currently assigned a 10 percent evaluation. 3. Entitlement to a separate compensable rating for service-connected otitis media. REPRESENTATION Appellant represented by: Joseph A. Violante, Esq., and Mr. Andrew H. Marshall, Disabled American Veterans ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The veteran served on active duty from September 1944 to November 1945. This matter comes before the Board of Veterans' Appeals (the Board) on REMAND from and pursuant to an ORDER of the United States Court of Veterans Appeals (the Court). In a decision in April 1990, the Board denied entitlement to an increased rating for service-connected nonsuppurative otitis media with defective hearing, and, in so doing, affirmed the rating action of the regional office (hereinafter RO) which reduced the veteran's prior 20 percent evaluation for service-connected nonsuppurative otitis media with defective hearing to 10 percent. In a companion decision in April 1990, the Board denied entitlement to service connection for Meniere's syndrome (disease), essentially on the basis that such disability was not shown to have been present during the veteran's active military service or at any time thereafter. The Board additionally found that the veteran's claimed Meniere's disease was in no way causally related to service-connected otitis media or defective hearing. The Court, in Fugere v. Derwinski, 1 Vet.App. 103 (1990), held that the Department of Veterans Affairs' (VA) attempted rescission of M21-1 (that is, the VA Adjudication Procedure Manual) Part I, para. 50.13(b), which instructed VA rating boards not to reduce benefits for hearing loss where the reduction is due to changed criteria, without complying with the requirements of 5 U.S.C. §§ 552(a)(1) and 553 "'was without observance of procedure required by law.'" Fugere, 1 Vet.App. at 110. The Court then remanded the case to the Board with the direction to reinstate the appellant's disability rating in accordance with para. 50.13(b). On August 7, 1992, the United States Court of Appeals for the Federal Circuit affirmed the Court's decision. Fugere v. Derwinski, 972 F.2d 331 (Fed.Cir. 1992). On October 27, 1992, the United States Court of Appeals for the Federal Circuit denied the Secretary of Veterans Affairs request for an en banc rehearing of its August 7, 1992, decision. Subsequently, in November 1992, the Office of the General Counsel, Department of Veterans Affairs, advised the Under Secretary for Benefits, Department of Veterans Affairs, that further review of this case would not be sought. Consequently, the issue of entitlement to an increased rating for bilateral defective hearing is now before the Board for implementation of the Fugere guidelines. For reasons which will become apparent, the issue of entitlement to an increased rating for service-connected bilateral defective hearing will be held in abeyance pending completion of the additional development set forth in the following REMAND decision. In a decision of April 1990, the Board denied entitlement to service connection for Meniere's syndrome (disease). In that regard, the Court, in [citation redacted], vacated and remanded the April 1990 decision of the Board, finding that the Department of Veterans Affairs (VA) violated its duty to assist the veteran in the development of all facts pertinent to his claim and that the Board decision of April 1990 failed to state the medical evidence on which the Board relied in reaching its medical conclusions. The case has now been returned to the Board for action consistent with the November 1991 ORDER of the Court. We note upon further review of this case that, in written arguments to the Court and in written arguments in December 1991, the veteran's accredited representative, the Disabled American Veterans, voiced various novel contentions which have yet to be considered by either the RO or the Board. It is asserted that in a letter of March 6, 1978, the RO informed the veteran that his tinnitus, loss of balance, and nausea were in fact the result of his service-connected otitis media. It is argued that, by such notification, the RO, in effect, granted service connection for Meniere's disease. Accordingly, it is contended, service connection for Meniere's disease has, in fact, been in effect for a period in excess of 10 years, and the Board's April 1990 decision denying service connection for such disability was an improper severance of service connection. Although this particular argument/rationale had not previously been advanced by either the veteran or his accredited representative or properly developed for appellate review, it is inextricably intertwined with an issue on appeal. The issue of entitlement to a separate compensable evaluation for service-connected otitis media (referred to the RO for initial consideration in the Board's April 1990 decision) is likewise inextricably intertwined with the other issues currently on appeal. In Harris v. Derwinski, 1 Vet.App. 180 (1991), the Court held that such inextricably intertwined issues must be addressed prior to a final decision on appellate review. Accordingly, the issue of entitlement to a separate, compensable rating for service-connected otitis media has been added as an issue for consideration. REMAND In a November 1991 decision, the Court found that the VA had clearly failed in its duty to assist the veteran in the development of all facts pertinent to his claim. Specifically, it was noted that the veteran would have been "clearly assisted...if he had had a definite diagnosis of whether or not he was suffering from Meniere's disease." [citation redacted]. It was stated that the VA had not made an adequate effort to obtain such a diagnosis. The Court acknowledged that the veteran had, on a number of occasions, expressed a desire that no further testing be conducted. However, the Court was of the opinion that the VA had not "properly explained" to the veteran the importance of a definite diagnosis (of Meniere's disease). Had the veteran decided after receiving this information that he did not wish any further examinations, there would have been nothing more the VA could do. However, in failing to give the veteran the opportunity to make an informed decision regarding whether to undergo further examinations, the VA violated its duty to assist. On a somewhat different track, the Court additionally noted that the Board, in coming to its ultimate conclusion that the veteran's Meniere-like symptoms were unrelated to his ear infection in service relied on unstated "generally accepted medical principles." Id. It was held that the Board's failure to explicitly name and discuss the aforementioned generally accepted medical principles constituted a violation of the principle expressed in Murphy v. Derwinski, 1 Vet.App. 78 (1990), to wit: [T]he fact that a [Board of Veterans' Appeals] panel may include a physician is not by itself sufficient for the purposes of [38 U.S.C.A. § 7104(d)(1) (West 1991)] .... [Board of Veterans' Appeals] decisions must include the 'reasons or bases' for medical conclusions, even those opined by the [Board of Veterans' Appeals] physician[s]; a mere statement of an opinion, without more, does not provide an opportunity ... for this Court to review the [Board of Veterans' Appeals] decision 'on the record' as required by [38 U.S.C.A. § 7252(b) (West 1991)]. [citation redacted] quoting Murphy, 1 Vet.App. at 81. In Colvin v. Derwinski, 1 Vet.App. 171 (1991), the Court expounded further on this principle, stating: [Board of Veterans' Appeals] panels may consider only independent medical evidence to support their findings. If the medical evidence of record is insufficient, or in the opinion of the [Board of Veterans' Appeals], of doubtful weight or credibility, the [Board of Veterans' Appeals] is always free to supplement the record by seeking advisory opinions, ordering a medical examination, or citing recognized medical treatises in its decisions to support its ultimate conclusions. Id. at 174-75. While mindful of the Court's concerns, the Board notes that, in correspondence of January 1989, the veteran stated that he had a "deathly fear" that one of the tests (required for a differential diagnosis of Meniere's disease) was going to "go awry," resulting in his being forced into a "wheelchair or worse." In subsequent correspondence of February 1989, the veteran wrote that, in his opinion, a previous test had indeed gone awry, resulting in his worst nightmare becoming a "stark reality." (emphasis in the original) He claimed that, as a result of the testing, he was currently experiencing an upset stomach, nausea, tinnitus, hearing loss, and dizziness accompanied by loss of balance on a daily basis. Accordingly, the veteran commented that he did not wish any further testing or operations. In light of the aforementioned, the Board is of the opinion that the veteran's interest would best be served were he to be personally contacted, and an explanation given as to the importance and/or necessity for further testing to confirm or rule out the presence of Meniere's disease. Accordingly, the case is REMANDED to the RO for the following actions: 1. The veteran should be personally contacted and given an explanation as to the importance of a "definite diagnosis" of Meniere's disease in the prosecution of his claim. Should he decide, following such explanation, that he still does not want any further testing, his claims folder and full medical records should be furnished to a VA otolaryngologist. Following a full review of the veteran's claims folder and medical record, the otolaryngologist should specifically express an opinion as to the presence or absence of Meniere's disease. Should Meniere's disease be determined to be present, the otolaryngologist should additionally express an opinion as to the causal relationship, if any, between the Meniere's disease and the veteran's service-connected otitis media and defective hearing. The opinion obtained should be included in the veteran's claims folder. 2. Should the veteran consent to further testing, he should be afforded a full otologic examination by a VA otolaryngologist to determine the presence or absence of Meniere's disease. Such evaluation should include complete audiometric examination, brain-stem evoked response audiometry (ABR), electronystagmography (ENG), and, if indicated, computerized axial tomography. All pertinent symptomatology and findings should be reported in detail. Should Meniere's disease be found present, the examiner should express an opinion as to the causal relationship, if any, between the disease and the veteran's otitis media and defective hearing. The veteran's claims folder should be furnished to the examining physician to facilitate in the study of the case. 3. The RO should specifically adjudicate the issue of entitlement to a separate compensable evaluation for service-connected otitis media. Such adjudication should encompass a full discussion as to the presence or absence of an active suppurative process. Following completion of the above actions, the RO should review the evidence and determine whether the veteran's claims may now be granted. Specific considerations should be given to the arguments that the letter of March 6, 1978, constituted a grant of service connection for Meniere's disease and that the rating decision in July 1988 and (vacated) decision of the Board in April 1990 therefore amounted to a severance of service connection. Should the benefits sought remain denied, the veteran and his representative should be provided with an appropriate supplemental statement of the case. Appellate consideration of the issue of entitlement to an increased rating for service connected bilateral defective hearing is, as previously noted, deferred, inasmuch as, were the veteran to be granted service connection for Meniere's disease, the rating of that entity would encompass the veteran's service-connected defective hearing. In any case, following resolution of the issue of entitlement to service connection for Meniere's disease, the RO should adjudicate the issue of entitlement to an increased rating for service-connected bilateral defective hearing as per the direction of the Court in Fugere, and in light of the determination in regard to Meniere's disease. In this REMAND of the claim for further development, the Board does not intimate any opinion as to the ultimate determinations warranted. No action is required of the appellant until he receives further notice. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * GEORGE R. SENYK BRUCE E. HYMAN *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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. 57 Fed. Reg. 4126 (1992) (to be codified as 38 C.F.R. § 20.1100(b)).