Citation Nr: 1325445	
Decision Date: 08/12/13    Archive Date: 08/16/13

DOCKET NO.  12-16 009	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUE

Entitlement to service connection for vertigo, to include as secondary to service-connected tinnitus and/or left ear hearing loss.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Laura E. Collins, Associate Counsel

INTRODUCTION

The Veteran had active service from November 1951 to May 1954.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2012 by the Department of Veterans Affairs (VA) Regional Office (RO).

In May 2013 the Veteran testified before the undersigned Acting Veterans Law Judge in a video-conference hearing.  A transcript has been associated with the claims file.

The record was held open after the hearing for an additional 60 days so that the Veteran could submit additional evidence.  He submitted additional evidence during that period with a waiver of RO consideration.  38 C.F.R. § 20.1304 (2012).  Therefore, the Board may properly consider such newly received evidence.

Please note 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 & Supp 2012).

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.  VA will notify the Veteran if further action is required.


REMAND

The Veteran reports that he received treatment for vertigo in December 2010 and February 2011 from Dr. Russell W. Robertson, a private physician.  He provided a release authorization for Dr. Robertson in a May 2011 VA Form 21-4142.  However, there appears to have been no attempt to obtain these treatment records.  Thus a remand is necessary.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R §§ 3.159 (2012).  

Additional efforts are also required to comply with VA's duty to notify under the Veterans Claims Assistance Act of 2000 (VCAA).  Specifically, at the Veteran's hearing he raised the theory of secondary service connection, contending that his vertigo is related to his service-connected tinnitus and/or hearing loss.  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).  The Veteran has not been provided with notice addressing the secondary aspect of his service connection claim.  Therefore, on remand such notice must be provided.

Accordingly, the case is REMANDED for the following actions:

(Please note, 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.  Send the Veteran a corrective letter under 38 U.S.C.A. § 5103(a) addressing the secondary service connection theory of entitlement with respect to his claim.

2.  After obtaining any necessary authorization, request treatment records from Dr. Russell W. Robertson, to include those dated from December 2010 to February 2011.  Associate any records received with the claim file, either physically or electronically.

The AOJ must make at least two requests to any custodian of private records in an effort to obtain such records, unless it is made evident by the first request that a second request would be futile in obtaining such records.  Any negative response should be in writing and associated with the claim file.

3.  Then, readjudicate the Veteran's claim.  If the benefit sought remains denied issue a supplemental statement of the case and allow an appropriate opportunity to respond.  Thereafter, the case should be returned to the Board.

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 claim 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).



_________________________________________________
D. JOHNSON
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).