Citation Nr: 1338228 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 10-20 970 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for vertigo, to include as secondary to bilateral hearing loss and tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1962 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for vertigo. The Veteran timely appealed that issue. 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 notes that the Veteran has been service connected for bilateral hearing loss and tinnitus. The evidence of record demonstrates that in approximately November 2007, the Veteran began experiencing episodes of vertigo, which has been described variously as peripheral (as opposed to central) and non-cardiac in nature. The Veteran underwent a VA examination in October 2011, at which time the examiner opined that his vertigo was "at least as likely as not caused by or a result of service-connected hearing loss." However, she concludes her remarks by stating that "Vertigo is not related to his service-connected hearing loss." The Board notes that this is internally inconsistent, and must be clarified. Moreover, the examiner's opinion does not address whether the Veteran's hearing loss aggravates his vertigo, nor does her opinion address tinnitus at all. In light of these deficiencies, the Board finds that a remand is necessary in order to afford the Veteran a new VA examination and to obtain an adequate nexus opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant VA treatment records from the Providence VA Medical Center, or any other VA medical facility that may have treated the Veteran, since March 2011 and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment that he may have had for his vertigo, which is not already of record, to include any ongoing treatment with Dr. M.Z. at Norton Medical Center, or at Braintree Rehabilitation or Sturdy Memorial Hospitals. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his vertigo. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. For any vestibular disorder found, including vertigo, the examiner should indicate whether it as likely as not (50 percent or greater probability) that it had its clinical onset in or is otherwise related to military service. If not, the examiner should indicate whether any vestibular disorder found, including vertigo, is as likely as not (50 percent or greater probability) caused or aggravated by his service-connected bilateral hearing loss, tinnitus, or the aggregate effects of those two disabilities. If aggravated, specify the baseline of disability prior to aggravation, and the permanent, measurable increase in disability resulting from the aggravation. The examiner should discuss the October 2011 VA examination and that VA examiner's conclusions therein. All opinions must be accompanied by a rationale. If the examiner determines that the questions cannot be resolved without resorting to speculation, then an explanation as to why this is so must be provided. 4. Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claim of service connection for vertigo, to include as secondary to bilateral hearing loss and tinnitus. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant 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 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). _________________________________________________ THOMAS J. DANNAHER 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) (2013).