Citation Nr: 1313282 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 10-47 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for vertigo, including as due to head trauma. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1981 to July 1992. This appeal to the Board of Veterans' Appeals (Board) is from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. A December 2010 statement requests that the Veteran's appeal be "advanced on the Board's docket" due to financial hardship. This document was filed at the agency of original jurisdiction (AOJ) and not the Board; therefore, the Board finds this is not an appropriately filed motion to advance the appeal on the Board's docket as regulations mandate that such motion must be filed at the Board. See 38 C.F.R. § 20.900. Importantly, when the case was subsequently docketed at the Board and the Veteran's representative submitted a statement in support of the Veteran's appeal, he did not request that the appeal be advanced on the Board's docket. Therefore, the Board finds that a motion for advancement on the Board's docket has not been filed. The appeal is REMANDED to the AOJ via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Although the Board sincerely regrets the additional delay, it is necessary to remand in order to ensure procedural due process and that there is a complete record upon which to decide the claim so the Veteran is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran asserts he suffers from vertigo as a result of a flight line motor vehicle accident while on active duty. Specifically, he claims that he was thrown from the back of the work truck to the front, and his head and shoulder hit the front window and engine cover. As part of the duty to assist a Veteran in developing the facts and evidence concerning a service-connection claim, VA must provide an examination for a medical nexus opinion when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which he qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with his service or a service-connected disability; but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). When determining whether a VA examination and opinion are required under 38 U.S.C.A. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggests an association between the disability and service or a service-connected disability. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). The Veteran's service treatment records (STRs) show he was involved in a motor vehicle accident in 1988 with injuries to his right shoulder. A September 1988 STR shows that x-ray images of the Veteran's neck and right shoulder were requested based on "head trauma (MVA)." His STRs also show numerous complaints of earaches. Since his separation from service, private and VA treatment records show complaints of dizziness. A January 2009 post-service VA treatment record shows the Veteran currently complains of vertigo. A February 2009 VA physician ruled out Meniere's disease as a cause for the Veteran's vertigo, but did not provide any additional comment as to its cause, including as to whether it may be the result of an in-service head injury, as the Veteran alleges. Accordingly, since the Veteran has not received a VA examination to determine whether his claimed vertigo disorder is related or attributable to his military service, the Board must obtain this necessary medical evidence before adjudicating this claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). Finally, on remand, the Board notes the most recent VA treatment records associated with the claims file are dated in June 2010. Therefore, on remand, any outstanding pertinent VA treatment records dated after June 2010 to the present should be obtained. VA is obligated to attempt to obtain and consider these records in adjudicating this appeal. 38 U.S.C.A. § 5103A(c)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012). For this reason, the Board has no discretion and must remand the appeal to attempt to obtain any outstanding records. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and his representative and request that they provide sufficient information, and if necessary, authorization, to enable the AOJ to obtain any additional evidence pertinent to the claims on appeal. After securing the necessary authorizations for release of this information, the AOJ should seek to obtain copies of all records referred to by the Veteran not already of record, as well as any pertinent VA treatment records dated since June 2010. These records must be obtained, or it must be determined the records cannot be obtained, prior to scheduling a VA examination. 2. Notify the Veteran that he may submit lay statements from individuals that have first-hand knowledge of his vertigo symptoms. He should be provided a reasonable amount of time to submit this lay evidence prior to scheduling a VA examination. 3. Then, schedule the Veteran for an appropriate VA examination to determine whether his vertigo is related to or had its onset in service. The claims folder must be made available to and reviewed by the examiner. The examiner must opine as to whether it is at least as likely as not (a degree of probability of 50 percent or more) that the Veteran's vertigo is etiologically related to his period of service, to include the motor vehicle accident in 1988. Any opinions expressed by the examiner must be accompanied by a complete rationale. If an opinion cannot be provided without resort to mere speculation, the examiner must state this and must explain why an opinion cannot be provided without resort to mere speculation. 4. Adjudicate the Veteran's claim on appeal. If any benefit sought remains denied the Veteran should be issued a supplemental statement of the case (SSOC) that addresses actions taken since the issuance of the last SSOC and given the opportunity to respond. The case should then be returned to the Board, if in order. The Veteran 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). _________________________________________________ M.N. HYLAND Acting 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).