Citation Nr: 1307864 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 07-27 012 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for disability manifested by dizziness and loss of equilibrium. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was last remanded in February 2012 for further development. The Veteran presented testimony at a travel Board hearing before the undersigned Veterans Law Judge in July 2008, with Disabled American Veterans (DAV) representing him, and a transcript of the hearing is associated with his claims folder. In October 2012, DAV submitted a cover letter attaching a form letter from the Veteran indicating that he had no other information or evidence to submit, and for the Board to consider his case as soon as possible. The cover letter from DAV requested that the Veteran's claim be expedited and that he be given a videoconference hearing. However, neither the Veteran nor DAV has given a reason for requesting a second hearing. As good cause for a second Board hearing has not been shown, the motion for a second hearing is denied. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2012). Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. The case was remanded to the RO in February 2012 for a VA medical opinion as to whether it was at least as likely as not that the Veteran's chronic disability manifested by dizziness and/or loss of equilibrium has been aggravated by his service-connected residuals of shell fragment wound to the back of his head and/or by his service-connected headaches, as VA has a duty to assist the Veteran in this regard under 38 C.F.R. § 3.159 (2012). The March 2012 VA medical opinion which was obtained on remand pertains to the question of whether the Veteran's dizziness/equilibrium loss was caused by his service. This opinion is not responsive to the posed question. The Board is requesting an opinion as to whether or not the Veteran's chronic disability manifested by dizziness and/or loss of equilibrium has been aggravated by his service-connected residuals of shell fragment wound to the back of his head and/or by his service-connected headaches. RO compliance with a remand is not discretionary. If an RO fails to comply with the terms of a remand, another remand for corrective action is required. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. The claims folder should be forwarded to the VA examiner who examined the Veteran in April 2010 and who also rendered the medical opinion in March 2012. The examiner must expressly indicate whether it is at least as likely as not (a probability of at least 50 percent) that the chronic disability manifested by dizziness and/or loss of equilibrium has been aggravated by the Veteran's service-connected residuals of shell fragment wound to the back of the head and/or by his service-connected headaches. The term "aggravation" is defined as a worsening of the underlying disability beyond its natural progression, as opposed to a temporary flare-up of symptoms. A rationale for the opinion should be furnished. 2. If that examiner is no longer available, the Veteran should be scheduled for an appropriate examination by another examiner for the purpose of examining the Veteran, reviewing the claims folder, and offering a response, with rationale, to the question posed above. 3. In the interest of avoiding further remand, the RO should review the addendum or opinion to ensure that it is responsive to the posed question and is adequate to allow for informed review. If necessary, the addendum or opinion should be returned to the examiner for remedial action. 4. After completion of the above, the case should be reviewed by the RO. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or 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.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2012).