Citation Nr: 1756599 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 11-02 649 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for vertigo. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M.S.Doran, Counsel INTRODUCTION The Veteran served on active duty with the U.S. Army from April 1971 to June 2008. This matter comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The rating decision included denials of entitlement to service connection for traumatic brain injury (TBI) and vertigo, which the Veteran timely appealed. A February 2017 rating decision granted entitlement to service connection for TBI. This issue was previously before the Board in June 2016. The claim was remanded so that additional treatment records could be obtained and the Veteran could be afforded VA examinations. On his January 2011 substantive appeal VA-9, the Veteran requested a Board hearing in Washington, D.C. On his representative's January 2014 Statement of Accredited Representative (646), the VFW indicated that the Veteran was awaiting his Board hearing. In the June 2016 Board remand, the Board noted that a Veterans Appeals Control and Locator System (VACOLS) record from April 2014 showed that the Veteran had indicated he no longer desired a hearing. In the June 2016 Board remand, the Board found that this was sufficient to conclude the Veteran had withdrawn his request for a Board hearing. Currently, the Board is unable to find a written request to withdraw his January 2011 hearing request. The "hearing" tab on VACOLS simply includes that the hearing was "cancelled by vet," but does not include a date or an attached statement. The Board does note that there has been no additional communication from the Veteran or the VFW expressing continued interest in a hearing. However, as the claim is being remanded for additional development, the Board will also request that the Veteran and his representative provide a written statement as to whether he continues to request a Board hearing. For future reviewers, the majority of the Veteran's claims file is currently located in the legacy content section of the Virtual Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND The Veteran sought service connection for TBI and vertigo. He was afforded VA examinations in 2017 related to these claims. The January 2017 VA ENT examination included vertigo in the "diagnoses" section of the examination report. It was noted that the Veteran's complaints of vertigo began after his 2005 head injury. At the time of the examination, the Veteran was not being treated for vertigo or his TBI. The examiner did not discover a physical reason for the Veteran's vertigo. He provided the opinion "if he has TBI then vertigo could be a symptom of his TBI. But if he has no TBI, then vertigo resolves without any residual and only a symptom." In February 2017, the Veteran was afforded a VA TBI examination. He was noted to have a mild TBI from 2005. The "medical history" section of the examination report included the Veteran's complaints of headaches (separately rated) and postural lightheadedness. Oddly, however, the examiner marked "no subjective symptoms" on the examination report. The only residual listed was of headaches. In the remarks section, he listed "regarding the claim of vertigo and whether associated with TBI, I defer to the DBQ ENT evaluation." A March 2017 addendum medical opinion, provided by the ENT examiner noted that "vertigo was only a symptom. No pathology was established. It happened after his TBI, but does not matter whether he had TBI or not it still remains the symptom only and resolves without any residual. There is no way to say whether his symptom of vertigo is 2nd to TBI or may be unrelated to his TBI." The Board notes that it appears the ENT examiner finds that the Veteran's vertigo is a symptom of his TBI; however, the TBI examiner did not list vertigo as a symptom (to include as a subjective symptom) of his TBI, and the February 2017 rating decision which granted TBI did not consider vertigo as a symptom of the Veteran's TBI. The Board will not separately service-connect a symptom (vertigo) of an already service-connected disability (TBI). Here, however, the ENT examiner found the vertigo to be a symptom of TBI, but the TBI examiner and RO did not consider his vertigo to be a symptom of TBI. On remand, a clarifying medical opinion is necessary. Additionally, as noted in the introduction, the Veteran requested a Board hearing held at the central office in Washington, D.C. on his January 2011 substantive appeal. A VACOLS entry indicates that the Veteran withdrew this request; however, the record does not currently contain a written withdrawal of his hearing request. Continued communications from the Veteran and his representative have not indicated he was awaiting scheduling for a hearing. On remand, request that the Veteran or his representative provide a written withdrawal of a request for a Board hearing (or a written statement of continued request for a hearing, if that is the case). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and his representative and request that they provide a written statement withdrawing his request for a Board hearing. (Or a statement of continued interest in a Board hearing, if that is the case). 2. Forward the Veteran's claims file to a VA TBI examiner. After reviewing the record, including the 2017 examinations, the examiner must provide the following opinions: a. Is the Veteran's postural light-headedness/vertigo a symptom of his service-connected TBI? 1. If his vertigo is not a symptom of his TBI, then provide an opinion on the etiology of his vertigo. 2. Is it at least as likely as not (50/50 probability or greater), that his vertigo (or the underlying disability manifesting in the symptom of vertigo) is caused by or began during his military service. Provide a complete explanation for all opinions expressed. If an opinion cannot be provided without resort to speculation, the examiner must so state and then provide a reason for why the requested opinion requires a resort to speculation. 3. After completing the above actions, readjudicate the claim on appeal. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran and his representative have 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). _________________________________________________ G. A. Wasik Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2016).