Citation Nr: 18146886 Decision Date: 11/02/18 Archive Date: 11/01/18 DOCKET NO. 18-24 776 DATE: November 2, 2018 ORDER Entitlement to service connection for benign paroxysmal positional vertigo condition is denied. REMANDED Entitlement to service connection for degenerative arthritis of the spine is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s benign paroxysmal positional vertigo condition is related to active service. CONCLUSION OF LAW The criteria for entitlement to service connection for benign paroxysmal positional vertigo condition have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active from March 1972 to March 1974. The Board notes that the September 2017 rating decision included denial of entitlement to service connection for esophageal condition (GERD), right lower extremity pain, left lower extremity pain, bilateral hearing loss, and a grant of service connection at 10 percent for tinnitus and a noncompensable rating for skin disability. The Veteran submitted a notice of disagreement dated November 2017 that had been provided by the RO with the notification letter related to the September 2017 rating decision. In the notice of disagreement, the Veteran specified only the following issues for disagreement: GERD, vertigo, right lower extremity pain, left lower extremity pain, skin issues, and degenerative arthritis of the spine. In a February 2018 statement of the case, the RO included the following issues: GERD, vertigo, right lower extremity pain, left lower extremity pain, and skin issues. The degenerative arthritis of the spine issue is remanded below to issue a statement of the case. The remaining issues of GERD, right lower extremity pain, left lower extremity pain, and skin disability are not within the Board’s jurisdiction as the Veteran did not list them on the VA Form 9 he returned in April 2018. 38 C.F.R. § 20.202. Thus, he did not perfect an appeal as to those issues. Additionally, the Board does not have jurisdiction to hear an appeal on bilateral hearing loss or tinnitus as those issues were not listed on the notice of disagreement dated November 2017. Although the Veteran’s VA Form 9 dated April 2018 was returned within one year of the September 2017 rating decision, and includes the issues of bilateral hearing loss and tinnitus, the notice of disagreement form provided by the RO, and returned by the Veteran in November 2017 did not include those issues, as such the appeal for bilateral hearing loss and tinnitus is not perfected. 38 C.F.R. § § 20.200, 20.201. 1. Entitlement to service connection for benign paroxysmal positional vertigo condition The Veteran contends that he suffered from vertigo during active service and that it continues to the present day. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of benign paroxysmal positional vertigo and evidence shows that he complained of dizziness or vertigo during service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of benign paroxysmal positional vertigo began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records (STRs) show note that the Veteran complained of a history of dizziness or fainting spells on a January 1974 report of medical history. While the examiner noted a history of vertigo on rising, the accompanying January 1974 separation examination report notes that neurologic examination was normal. Likewise, examination of the Veteran’s ears was normal. Although the Veteran’s representative stated in the October 2018 informal hearing presentation that VA had not provided the Veteran with a VA examination for the vertigo issue, the VA did in fact provide a VA examination for ear conditions in August 2017. The VA examiner confirmed a diagnosis of benign paroxysmal positional vertigo and opined that the Veteran’s vertigo is not at least as likely as not related to an in-service injury, event, or disease, including reports of dizziness in service. The rationale was that the report from 1974 indicating a history of dizziness was singular and accordingly the condition is less likely than not related to current benign paroxysmal positional vertigo, to include any possible relationship to service-connected tinnitus. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his vertigo is related to an in-service injury, event, or disease, including complaints of dizziness in service, he is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the VA medical opinion. Accordingly, the Board finds that the preponderance of the evidence is against the appeal for entitlement to service connection for benign paroxysmal positional vertigo and therefore the appeal is denied. The Board has duly considered the benefit of the doubt doctrine. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, the preponderance of the evidence is against the Veteran’s claim, so the doctrine is not applicable. REASONS FOR REMAND 1. Service connection for degenerative arthritis of the spine is remanded. In a September 2017 rating decision, the RO denied entitlement to service connection for degenerative arthritis of the spine. In a notice of disagreement dated November 2017, the Veteran stated that he disagreed with that decision. The February 2018 statement of the case did not include this issue. The RO should issue a statement of the case in response to the Veteran’s disagreement with the denial of entitlement to service connection for degenerative arthritis of the spine. A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).   The matters are REMANDED for the following action: Send the Veteran and his representative a statement of the case that addresses the issue of entitlement to service connection for degenerative arthritis of the spine. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Miller, Associate Counsel