Citation Nr: 21027342
Decision Date: 05/05/21	Archive Date: 05/05/21

DOCKET NO. 16-38 697
DATE: May 5, 2021

REMANDED

The claim of entitlement to service connection for Meniere's disease/syndrome (peripheral vestibular disorder) as secondary to service-connected hearing loss and tinnitus is remanded.

REASONS FOR REMAND

The Veteran had honorable active duty service with the United States Navy from April 1969 to July 1971.  The instant matter is on appeal from a May 2016 rating decision.

The Board previously remanded this issue for additional evidentiary development in August 2019.

1. The claim of entitlement to service connection for Meniere's disease/syndrome (peripheral vestibular disorder) as secondary to service-connected hearing loss is remanded.

The Board sincerely regrets the additional delay, but remand is again necessary in order to comply with VA's duties to notify and assist prior to adjudication on the merits.

In response to the previous remand, the Veteran identified two private medical providers with records pertinent to the claims on appeal.  The records were not obtained.  One provider required a fee to obtain records, and the other provider was not able to identify the Veteran from the initial request.  The second provider asked that the records request be resubmitted with appropriate identifying information.  There is no indication of resubmission.  

Notice was provided to the Veteran that records had been initially sought, but not that such could not be obtained and further efforts to attempt such would be futile.  Unfortunately, such does not comply with 38 C.F.R. § 3.159(e)(1).  Furthermore, resubmission to the private provider in response to their January 2020 correspondence was not initiated despite explicit request by the provider.

Thus, remand is necessary to ensure reasonable efforts are made to obtain the identified private treatment records, as well as afford notice of any failures to do so to the Veteran pursuant to 38 C.F.R. § 3.159(e)(1).

The matters are REMANDED for the following action:

1. Resubmit the records requests, to include the second private provider in accordance with the January 2020 correspondence identifying deficiencies in the initial request.  Make reasonable attempts to obtain these records.  If such records cannot be obtained, inform the Veteran and the representative of record, and afford an opportunity to provide these outstanding records.

2. If the identified private records cannot be obtained, then provide the Veteran with notice regarding the efforts made to obtain private treatment records.  This notice should comply with 38 C.F.R. § 3.159(e)(1), and the Veteran should be afforded an opportunity to provide these records himself.

3. If additional private records are received, conduct any subsequent development deemed necessary, to include obtaining an addendum medical opinion that considers the new evidence.

4. Following completion of the foregoing, the AOJ should review the record and readjudicate the claim on appeal.  If it remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board.

 

 

S. Sorathia

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	H. Fisher, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.