Citation Nr: 1226684
Decision Date: 08/02/12 Archive Date: 08/10/12
DOCKET NO. 09-42 013 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois
THE ISSUE
Entitlement to service connection for a balance disorder.
REPRESENTATION
Appellant represented by: Illinois Department of Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. Lawson, Counsel
INTRODUCTION
The Veteran served on active duty from February 1954 to January 1956.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in April 2008, a statement of the case was issued in October 2009, and a substantive appeal was received in October 2009.
The Veteran also filed a notice of disagreement in April 2008 regarding the issues of service connection for bilateral hearing loss and tinnitus disabilities. However, the RO granted service connection for bilateral hearing loss disability and tinnitus in October 2009. Since service connection for these disabilities was granted, the issues are not before the Board.
The Veteran presented testimony at a Board hearing in June 2012, and a transcript of the hearing is associated with his claims folder. At the time of the hearing, additional documentary evidence was submitted via facsimile, together with a waiver of initial RO consideration.
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 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 Veteran feels that service connection is warranted for a balance disorder. Only his January 1956 service discharge examination report, out of all of his service treatment records, is available, apparently due to the 1973 National Personnel Records Center fire. He indicated in January 2008 that he had had no service treatment for a balance disorder. He testified in June 2012 that he first noticed problems with it about 6 years beforehand. He indicated that he had first seen Doctor Jollyman for this problem. He also indicated had also been seen at the Madison, Wisconsin VA Medical Center for balance problems. The Veteran and his representative stated that a letter from Dr. Jollyman indicating that the balance disorder was related to the hearing loss disability and tinnitus was of record. However, the referenced letter does not appear to be in the claims file.
A review of the Veteran's claims folder reveals that there are private medical records from Christopher Jelinek, M.D. of record. One, dated June 27, 2006, concerning complaints of dizziness after hearing shrill noises, has its second of two pages missing. A September 2009 VA ears examination report states that the Veteran had been hospitalized in 2006 for an acute episode of vertigo. There are no VA treatment records contained in the claims folder, or on Virtual VA (VA's electronic data storage system), nor are there any hospital reports of record. In light of the above, additional VA and private medical records should be sought. VA medical records are constructively of record and must be obtained, and VA has a duty to assist a Veteran in obtaining private medical records. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet.App. 611 (1992).
Moreover, the Veteran should be given secondary service connection VCAA notice, as this was not given when he filed his original claim in October 2007.
After the further development described above has been completed, the Veteran should be scheduled for another VA examination as indicated below. Such is required by 38 C.F.R. § 3.159, since he is claiming that his diagnosed balance disorder is due to his service-connected hearing loss and tinnitus. The Veteran had a VA ears examination in September 2009, wherein the examiner opined that it was less likely than not that the Veteran's balance disorder was related to his service occupations or to his hearing loss and tinnitus. However, the examination report is not fully adequate as it does not discuss whether the Veteran's balance disorder was aggravated by his service-connected bilateral hearing loss disability or tinnitus. See Allen v. Brown, 7 Vet.App. 439 (1995) (provides for secondary service connection for disability to the extent that it is chronically made worse/aggravated by a service-connected disability).
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) (2011). Expedited handling is requested.)
1. The RO should furnish the Veteran with VCAA notice regarding the theory of service connection secondary to his service-connected hearing loss and tinnitus.
2. The RO should then take appropriate action to obtain all VA medical records of treatment the Veteran has received for a balance disorder, including from the Madison, Wisconsin VA Medical Center and for any hospitalizations since 2006.
3. The RO should also take appropriate action to request n all private medical records of treatment the Veteran has received for a balance disorder, including from any private hospitals that treated the Veteran for it since 2006; from Dr. Jollyman (to include any opinion letter he has authored); and from Dr. Jelinek, including the second page of Dr. Jelinek's June 27, 2006 private medical report.
4. After all available relevant records are received, the RO should schedule the Veteran for a VA examination for his balance disorder. It is imperative that the claims file be made available for review in conjunction with the examination. All necessary special studies or tests are to be accomplished.
The examiner should then respond to the following:
a) Is it is at least as likely as not (a probability of 50 percent or higher) that any current balance disorder had its onset during or is related to his active service, including his reported duties as a combat engineer and vehicle driver?
b) Is it is at least as likely as not (a probability of 50 percent or higher) that any current balance disorder is proximately due to, or caused by, the service-connected hearing loss and tinnitus?
c) Is it is at least as likely as not (a probability of 50 percent or higher) that any current balance disorder has been aggravated by the service-connected hearing loss and tinnitus?
The examiner should set forth reasons for the opinions.
5. In the interest of avoiding further remand, the RO should review the examination report to ensure that it is responsive to the posed questions.
6. Thereafter, the RO should review the expanded record and determine if service connection for a balance disorder is warranted. If the claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for appellate review.
The appellant has the right to submit additional evidence and argument on the matter or 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. 2011).
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ALAN S. PEEVY
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) (2011).