13-22 853
13-22 853
| Board of Vet. App. | Sep 30, 2016Background
- Veteran served on active duty Feb 1956–Mar 1958 and seeks service connection for vertigo, including as secondary to service‑connected bilateral hearing loss and tinnitus.
- Service treatment records for treatment at a military hospital in Ulm, Germany (Jan–Jul 1957) are missing or incomplete in the file due to NPRC fire; Veteran submitted a request to reconstruct those records.
- A VA examination in July 2015 found the Veteran's dizziness was likely due to anemia and not vestibular, but the examiner did not address whether the vertigo is caused or aggravated by the Veteran's service‑connected hearing loss or tinnitus.
- The Board remanded the claim for additional development: (1) request the missing military hospital and surgeon general / sick/morning reports covering Jan 1, 1957–Jul 30, 1957; (2) obtain an addendum opinion (or a new exam) addressing causation and aggravation ("as likely as not" standard) with rationale; and (3) readjudicate and issue SSOC if still denied.
- The remand was advanced on the Board docket and emphasizes VA's duty to expedite and to notify the Veteran if records are unavailable; the Veteran retains the right to submit additional evidence during the remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to service connection for vertigo (direct) | Vertigo is related to in‑service treatment/records (treatment at Ulm hospital in 1957) | Existing record and examiner do not establish service connection; some in‑service records are missing | Remanded for retrieval of missing records and an addendum opinion addressing causation using the "as likely as not" standard |
| Entitlement to service connection for vertigo as secondary to service‑connected bilateral hearing loss or tinnitus | Vertigo is caused or aggravated by the Veteran's service‑connected hearing loss/tinnitus | 2015 VA examiner did not opine that vertigo was caused or aggravated by hearing loss/tinnitus and instead suggested anemia as likely cause | Remanded for an examiner opinion (addendum or new exam) explicitly addressing whether vertigo is at least as likely as not caused or aggravated by the service‑connected conditions, with rationale |
Key Cases Cited
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (Veteran retains the right to submit additional evidence and argument on issues remanded by the Board)