BVA9502945 DOCKET NO. 93-08 568 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for labyrinthe dysfunction and positional vertigo, on a direct basis or as secondary to service-connected tinnitus and bilateral high frequency sensory hearing loss. 2. Entitlement to service connection for residuals of a cerebrovascular accident. 3. Entitlement to service connection for cardiovascular disease. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD Julia M. Kurtz, Associate Counsel REMAND The veteran served on active duty from February 1951 to November 1952 and February 1956 to April 1974. This appeal arises from a June 1992 rating decision of the St. Petersburg, Florida, Regional Office, (RO) which denied entitlement to service connection for labyrinthe dysfunction and positional vertigo, residuals of a cerebrovascular accident, and cardiovascular disease. The veteran is represented in his appeal by AMVETS. The veteran asserts on appeal that he is entitled to service connection for labyrinthe dysfunction and positional vertigo, on a direct basis or as secondary to service-connected tinnitus and bilateral high frequency sensory hearing loss, residuals of a cerebrovascular accident, and cardiovascular disease. He contends that he was treated for head injuries, a stroke, and hypertension at the hospital at Ft. Rucker, Alabama, in June 1974, less than one month following discharge from service. The veteran's representative points out that the RO never requested treatment records cited by the veteran regarding a stroke in June 1974 and requests a remand to obtain those treatment records. He also notes that the examiner conducting the March 1992 VA examinations referred to tests conducted by Dr. Toner, but apparently did not review the test results. Finally, he notes that the issue of entitlement to service connection for cardiovascular disease includes the issue of service connection for hypertension. In that regard, the Board notes that in his claim form, received in July 1991, the veteran also requested entitlement to service connection for hypertension. The VA has the duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1993). Massey v. Brown, No. 93-135, slip. op. at 8 (U.S. Vet.App. Dec. 6, 1994). The United States Court of Veterans Appeals has clarified that the duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes obtaining adequate VA examinations. Littke v. Derwinski, 1 Vet.App. 90 (1990). Upon review of the record, the Board notes that treatment records from Ft. Rucker Hospital, dating from June 1974, are not contained within the claims folder. The claims folder contains medical records dating from June to October 1991 from Stephen J. Toner, M.D., which contain the results of several diagnostic tests. However, it does not appear the VA examiner reviewed the records prior to his examination. Moreover, the examiner did not offer an opinion regarding the etiology of the veteran's vertigo disorder. While we regret the delay in reaching a final decision imposed by remanding this case, such action is found to be appropriate in view of the issue on appeal and our efforts to comply with continually evolving doctrine as set forth by the Court, to include consideration of the representative's request for a remand. In light of the foregoing, this case is REMANDED to the RO for the following actions: 1. The RO should obtain all clinical and outpatient treatment records referable to the veteran from Ft. Rucker, Alabama, medical facilities dating from May 1974 to the present. 2. The RO should schedule the veteran for a VA examination to determine the present nature and severity of his alleged vertigo, residuals of a cerebrovascular accident, and cardiovascular disease, to include hypertension. The examination should be conducted in accordance with the Physician's Guide for Disability Evaluation Examinations. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should review Dr. Toner's findings, and express an opinion as to the relationship between the veteran's service- connected tinnitus and hearing loss and alleged vertigo. The claims folder should be made available to the examiner for review prior to the examination. 3. Upon completion of the above requested development, the RO should review the veteran's claims for entitlement to service connection for labyrinthe dysfunction and positional vertigo, residuals of a cerebrovascular accident, and cardiovascular disease, to include hypertension. If the veteran's claims continue to be denied, the veteran and his representative should be afforded a reasonable period of time in which to respond to a supplemental statement of the case. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need not take any action unless he is further informed. The purpose of this REMAND is to allow for further development of the record and due process of law. No inference should be drawn from it regarding the final disposition of the veteran's claim. JEFF MARTIN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1993).