Citation Nr: 18119896 Decision Date: 07/19/18 Archive Date: 07/19/18 DOCKET NO. 12-29 589 DATE: July 19, 2018 REMANDED Entitlement to service connection for a disability manifested by dizziness, to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 C.F.R. § 3.317 is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1985 to August 1989, and from January 1991 to May 1991 in the Southwest Asia Theater of Operations of the Persian Gulf War. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By that rating action, the RO, concluded, in part, that new and material evidence had not been received to reopen a previously denied claim for service connection for chronic fatigue syndrome (CFS), to include as due to an undiagnosed illness. The Veteran disagreed with the January 2010 rating action and the RO’s determination therein to the Board. In a June 2017 decision, the Board denied service connection for a disability manifested by dizziness, to include chronic fatigue syndrome and as due to an undiagnosed illness. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In December 2017, the Court issued an Order, wherein it granted a November 2017 Joint Motion of the Parties for Partial Remand (JMPR) of the Board's June 2017 decision. The JMPR vacated and remanded the Board’s denial of the claim for service connection for a disability manifested by dizziness, to include as due to an undiagnosed illness. The Court left undisturbed that part of the Board’s decision wherein it denied service connection for chronic fatigue syndrome, as due to an undiagnosed illness. A copy of the JMPR and Court’s Order have been incorporated into the electronic record. In its December 2017 Order, the Court found that in denying the claim in its June 2017 decision, the Board had erred in relying upon an April 2015 VA examiner’s conclusion. The Court found that the April 2015 VA examiner’s opinion was based upon an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993). Specifically, the Court maintained that the April 2015 VA examiner’s conclusion that the Veteran’s symptoms of dizziness were not medically unexplainable because they were a result of his use of the medication, Trazodone, was contradicted by clinical evidence, as well as lay statements, indicating that the Veteran had complained of dizziness prior to (italics added for emphasis) taking Trazodone. (See JMPR at page (pg.) 3)). As such, the Court vacated and remanded the June 2017 Board decision for action consistent with its Order. As there is insufficient evidence in the record to determine whether the Veteran has objective indications of dizziness that were a chronic disability pursuant to 38 C.F.R. § 3.317, especially in light of his complaints/symptoms of dizziness prior to the use of the medication, Trazodone, the claim must be remanded for an additional medical opinion. The matter is REMANDED for the following action: After completing any records development, obtain a medical opinion from an examiner with appropriate expertise to ascertain the nature and etiology of any chronic disability or undiagnosed illness manifested by dizziness. The examiner should be provided access to the electronic claims file. If a new examination is deemed necessary to respond to the request, one should be scheduled. The examiner should express an opinion as to the following: (a) Does the Veteran have a diagnosable condition manifested by symptomatology of dizziness? (b) If the Veteran has a diagnosable condition manifested by symptomatology of dizziness, is it at least as likely as not (50 percent or greater probability) that the disability had its onset in, or is otherwise etiologically related to a period of military service? (c) If the Veteran does not have a diagnosable condition, are there objective indications of chronic disability that could be due to an undiagnosed illness or medically unexplained chronic multisymptom illness? Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. The examiner is hereby advised that the clinical evidence of record discloses that the Veteran’s complaints/symptoms of dizziness had their onset prior to his use of the medication, Trazodone. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Carole Kammel, Counsel