Citation Nr: 1327429 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 95-29 976 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE 1. Entitlement to service connection for an equilibrium disability (claimed as dizziness) to include as secondary to service-connected bilateral hearing loss and tinnitus. 2. Entitlement to a rating in excess of 50 percent for bilateral hearing loss. REPRESENTATION Appellant represented by: Hugh D. Cox, Attorney ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from May 1959 to July 1960. This case comes before the Board of Veterans' Appeals (Board) on appeal from February 1999 and May 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In a January 2002 decision, the Board denied the claim for entitlement to service connection for an equilibrium disability. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Court). In January 2003, the Court granted a Joint Motion for Remand filed by the parties, which requested that the portion of the January 2002 decision that denied service connection for an equilibrium disability be vacated and remanded. The appeal was returned to the Board and in September 2003 it was remanded for further development. In January 2011, the Board denied the claim for entitlement to service connection for an equilibrium disability a second time. The Veteran again appealed the denial to the Court, and in a November 2012 memorandum decision, the Court vacated and remanded the Board's denial of the claim. The case has now returned to the Board for further action. In June 2013, the Veteran filed a claim for entitlement to additional benefits for his spouse during the period from December 6, 2002 to September 1, 2004. This issue 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 referred to the AOJ for appropriate action. 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 regrets further delay in this case, but finds that a remand is necessary to comply with the Court's November 2012 memorandum decision. First, VA must make efforts to obtain complete records of the Veteran's in-service hospitalization from April 25, 1960 to April 29, 1960 at the United States Public Health Service (USPHS) Hospital on Staten Island, New York. Remand is also necessary to allow for the initial consideration of new evidence by the Agency of Original Jurisdiction (AOJ). In May 2013, a report of a private April 2013 medical consultation was added to the record. Neither the Veteran nor his representative have provided a waiver of initial AOJ consideration of the new medical evidence. The Veteran has a right to have the evidence considered by the AOJ. 38 C.F.R. § 20.1304(c). With respect to the claim for an increased rating for bilateral hearing loss, the Veteran filed a notice of disagreement (NOD) in May 2012 initiating an appeal following the denial of his claim for an increased rating for hearing loss in a May 2012 rating decision. He has not been provided a statement of the case (SOC) in response to the NOD, and a remand is required for the issuance of a SOC. See Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Obtain records of treatment from the USPHS pertaining to the Veteran's treatment at the Staten Island, New York facility from April 25, 1960 to April 29, 1960. All efforts to obtain these records must be documented in the claims file. If unable to obtain the specified records, inform the Veteran and his representative and request that they submit the records. All records received pursuant to this request must be associated with the Veteran's paper or virtual claims file. 2. Issue a SOC to the appellant and his representative on the issue of entitlement to a rating in excess of 50 percent for bilateral hearing loss disability. The Veteran should also be informed of the requirements to perfect an appeal with respect to this issue. 3. If the Veteran perfects an appeal with respect to this matter, ensure that any indicated development is completed before the case is returned to the Board. 4. Readjudicate the claim for entitlement to service connection for an equilibrium disability with consideration of all evidence of record, including the April 2013 private medical consultation report, and any additional evidence associated with the claims file. If the benefit sought is not fully granted, provide the Veteran and his representative a SSOC before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ MILO H. HAWLEY 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).