Citation Nr: 1312847	
Decision Date: 04/17/13    Archive Date: 05/02/13

DOCKET NO.  10-30 448	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to a rating in excess of 50 percent for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

E. Joyner, Counsel


INTRODUCTION

The Veteran served on active duty from June 1944 to December 1945.  This case comes before the Board of Veterans' Appeals  (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.

When the case was last before the Board in January 2013, it was remanded for additional development.

As noted in the January 2013 remand, the issue of entitlement to service connection for dizzy spells as secondary to service-connected bilateral hearing loss has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it and it is again referred to the AOJ for appropriate action.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

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

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 claim so that he is afforded every possible consideration.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

In the January 2013 remand, the Board, in pertinent part, instructed the RO to obtain all VA treatment records dating from December 2009 to the present, from the VA Medical Center in Sacramento, California, and all associated clinics, including the one in Martinez, California.  It was specifically requested that all attempts to secure these records must be documented in the claims file.

A computer printout reflects a notation that the Veteran's treatment records from December 16, 2009 to January 3, 2013 from the Martinez VA Medical Center were inserted into the claims file.  Moreover, a January 9, 2013 letter from the AMC to the Veteran indicates that copies of the Veteran's treatment records from the Sacramento/Martinez VA Medical Facility dated from December 16, 2009 to the present were obtained.  Finally, the February 2013 supplemental statement of the case reflects that the evidence considered includes the Veteran's VA treatment records from the Martinez VA Medical Center dated from December 16, 2009 to January 3, 2013.  Unfortunately, these treatment records are not contained in the Veteran's claims file.  

Because VA is on notice that there are additional VA records that are missing from the claims folder and that the additional records may be pertinent to the Veteran's claim, these records must be obtained and associated with the claims file.  38 C.F.R. § 3.159(c)(1) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992).  Further, RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance.  Stegall v. West, 11 Vet. App. 268 (1998).  Thus, the RO/AMC should obtain the Veteran's VA treatment records from the Sacramento/Martinez VA Medical Center dating from December 2009 to the present and associate them with the claims file before the Board can proceed with the claim on appeal.

Accordingly, the case is REMANDED for the following action:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  Request all VA treatment records dating from December 2009 to the present from the VA Medical Center in Sacramento, California, and all associated clinics including the one in Martinez, California.  Once obtained, these records should be associated with the claims file.  All attempts to secure these records must be documented in the claims file.

2.  The RO must then readjudicate the claim, and thereafter, if the claim on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must 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).



_________________________________________________
ROBERT C. SCHARNBERGER
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).