Citation Nr: 1321422 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 12-30 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for vertigo. REPRESENTATION Appellant represented by: New Hampshire State Veterans Council ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from November 1943 to May 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. 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 The Board finds it necessary to remand the case for additional development and consideration. The Veteran asserts that he has vertigo as a result of his active military service. Specifically, he states that he began to experience dizziness and loss of balance in 1945 during combat on the island of Iwo Jima. The Veteran recalls that an enemy shell impacted in the area of fellow marines who were killed. He was knocked to the ground and began to experience the symptoms. The Veteran states that he later went to the battalion sick bay on many occasions for the problems. He was given medication and returned to duty. The Veteran maintains that he currently has vertigo and that it is related to his combat service. Thus, he contends that service connection is warranted for vertigo. The Veteran's available service treatment records do not contain evidence of the events as described by the Veteran, although the National Personnel Records Center has indicated that some of his records were destroyed in a fire. Even so, in the case of a veteran who engaged in combat with the enemy, VA shall accept as sufficient proof of "service connection" of any disease or injury alleged to have been incurred by such service satisfactory lay evidence of service incurrence, if consistent with the circumstances, conditions, or hardships of such service. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Veteran's official service records document that he participated in action against the enemy as a field artillery crewman on Iwo Jima from February 1945 to March 1945. As the Veteran's stated experiences are consistent with the circumstances, conditions, and hardships of his combat service, and there is no clear and convincing evidence to the contrary, the Board finds that the incident when he was knocked down by an enemy shell, and his symptoms of dizziness and loss of balance, occurred based on his lay statements. Although an in-service event is established by the evidence, a veteran who establishes in-service incurrence of an injury or disease through application of section 1154(b) must nonetheless submit sufficient evidence of a causal nexus between that in-service event and a current disability. See Dalton v. Nicholson, 21 Vet. App. 23, 37 (2007). The Veteran reports presently experiencing symptoms of dizziness and loss of balance, and he believes he has vertigo. However, the record is devoid of competent medical evidence as to whether he in fact has vertigo. The Veteran has not yet been afforded a VA examination in connection with the claim. In December 2011, he underwent a VA audiologic examination that addressed separate hearing loss and tinnitus claims, but the examination did not reference his vertigo claim. Because the evidence reflects that the Veteran experiences recurrent symptoms of his claimed disability, and there is at least an indication that the symptoms are linked to the established in-service event, the Board finds that the claim must be remanded to afford the Veteran a VA examination. See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition to determining whether the Veteran has vertigo, a medical opinion should be provided as to whether any present vertigo had its onset during, or is otherwise related to, his active military service. Additional development is also necessary as potentially relevant evidence has been identified by the Veteran. First, VA has a duty to obtain relevant records in the custody of a Federal department or agency, including VA treatment records. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(2). During the course of the claim, the Veteran indicated that he receives treatment at the VA Medical Center (VAMC) in White River Junction, Vermont, and its associated outpatient clinics. No VA treatment records are in the claims file. Thus, on remand, treatment records should be obtained from this facility. Second, VA will also make reasonable efforts to obtain relevant records from private medical care providers. Such reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. Additionally, a claimant must cooperate fully with VA's reasonable efforts to obtain relevant records from private medical care providers. See 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(1). The Veteran indicated that he has been seen by Drs. Vander Laan, Rankin, and Blodgett. In February 2012, the Veteran indicated that some of his doctors are deceased, but records from the doctors that he did identify should be requested on remand as well. Accordingly, this case is REMANDED for the following actions: 1. Obtain the Veteran's treatment records from the White River Junction VAMC, and its outpatient clinics, and associate the records with the claims folder. 2. Request treatment records from Drs. Vander Laan, Rankin, and Blodgett. Obtain a release from the Veteran as necessary. 3. Notify the Veteran of the results of the record requests. If records are not received from any source, follow the notification procedures of 38 C.F.R. § 3.159(e). 4. Thereafter, schedule the Veteran for a VA examination to address the nature and etiology of his claimed vertigo. The examiner must be given full access to the Veteran's complete VA claims file and Virtual file for review. The examiner must specifically note on the VA examination report whether the Veteran's VA claims file, to include a copy of this remand, and Virtual VA file were reviewed. First, the examiner must identify whether the Veteran has a present disability of vertigo, or any other disability manifested by dizziness and loss of balance. Then, the examiner must state an opinion as to the likelihood (likely, unlikely, at least as likely as not) that the Veteran's vertigo (or other identified disability) had its clinical onset during, or is otherwise related to, his active military service. The examiner is to consider as fact the occurrence of the incident in service when the Veteran was knocked down by an enemy shell, and when he experienced symptoms of dizziness and loss of balance. In rendering the requested opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. After the requested report has been completed, it should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned for corrective action. 6. Finally, after undertaking any other development deemed appropriate, re-adjudicate the issue on appeal. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by VA. 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). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).