Citation Nr: 20003771 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 16-55 212 DATE: January 16, 2020 REMANDED Entitlement to service connection for a chronic disability manifested by dizziness is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1960 to October 1963. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2015 Rating Decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction was subsequently transferred to the RO in Winston-Salem, North Carolina. The Board notes that its previous May 2019 Remand also addressed the issue of entitlement to service connection for headaches; however, in a September 2019 Rating Decision, the RO granted entitlement to service connection for headaches. As this is considered a full grant of the benefits sought on appeal for this claim, it is no longer before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. Here, the appellant has not opted-in to VA’s test program, the Rapid Appeals Modernization Program (RAMP). Although the AMA was implemented effective February 19, 2019, the Rating Decision on appeal was issued prior to that date. Accordingly, the Board will review her appeal under the existing Legacy Appeals System. The Veteran seeks entitlement to service connection for a chronic disability manifested by dizziness. Unfortunately, the Board finds that an additional remand for further development is necessary before this claim can be adjudicated on the merits. In its previous May 2019 Remand, the Board directed that an addendum opinion be obtained from an appropriate VA clinician with respect to the probable etiology of the Veteran’s chronic disability manifested by dizziness. An in-person examination of the Veteran was not requested; rather, the clinician was asked to provide an opinion as to whether it was at least as likely as not (50 percent probability or greater) that any chronic disability manifested by dizziness was due to service, to specifically include the documented January 1963 head injury and subsequent in-service treatment for headaches, based on a review of the claims file. Additionally, the Board Remand indicated that if any opinion could not be made without resort to mere speculation, then the VA clinician must fully explain why such an opinion cannot be made without resorting to such speculation. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Pursuant to the Board’s Remand instructions, an addendum opinion was obtained in August 2019. Crucially, although the VA clinician initially concluded that the Veteran’s dizziness was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness, the clinician later explained an etiological opinion could not be provided without additional information. Specifically, the VA clinician explained that: The veteran has a history of head injury that occurred while playing basketball in January 1963. There are service treatment records from April 1963 in which the veteran sought treatment for an ache over his right eye and reported intermittent pain in his right eye ever since his January 1963 injury. This document provides evidence of head injury having occurred. However, there is no mention of dizziness associated with the head injury documented in the medical history portion of his TBI DBQ's. Neither is there mention of dizziness in the subjective or residual sections of the DBQ's. Since there is no medical history documented describing past or ongoing symptoms of dizziness, then I cannot comment on whether or not there is an association between his dizziness and TBI that occurred in 1963. Furthermore, without having directly examined and obtained a history regarding dizziness from the veteran myself, I am unable to provide an opinion regarding the cause of his dizziness. The BVA remand dated May 23, 2019 documents the veteran endorsing dizziness that he associates with his injury. However, a more thorough and descriptive history regarding his dizziness is required in order to provide an opinion on it's likely etiology. That is, the VA clinician concluded that an etiological opinion could not be provided without having directly examined and obtained a history regarding dizziness from the veteran, and without access to a more thorough and descriptive history regarding his dizziness. The Veterans Claims Assistance Act of 2000 (VCAA) requires VA to provide a medical examination or obtain a VA opinion when such an examination is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. Here, as the August 2019 VA clinician indicated that an opinion could not be provided with respect to the probable etiology of the Veteran’s dizziness without direct examination of and additional information from the Veteran, the Board finds that the Veteran should be scheduled for such an examination on remand. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate in-person VA examination to determine a confirmed diagnosis and etiology of his claimed dizziness. The claims file should be made available to and be reviewed by the examiner. The examiner must consider and explicitly discuss the Veteran's lay statements regarding a continuity of symptomatology since the documented January 1963 in-service head injury. The examiner must also consider and discuss the April 1963 service treatment record in which the Veteran sought treatment for an ache over his right eye and reported intermittent pain in his right eye ever since his January 1963 injury. Following in-person examination of the Veteran, to include with solicitation of any additional history of dizziness from the Veteran deemed warranted by the examiner, the VA examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any chronic disability manifested by dizziness is due to service, to specifically include the documented January 1963 head injury and subsequent in-service treatment for headaches. Rationale must be provided for each opinion expressed. In rendering the requested rationale, the examiner must explicitly reconcile his/her opinion with the Veteran’s lay statements of record regarding continuity of symptomatology since the documented January 1963 in-service head injury. The examiner must also consider and discuss the April 1963 service treatment record in which the Veteran sought treatment for an ache over his right eye and reported intermittent pain in his right eye ever since his January 1963 injury. If the clinician has any reason to doubt the Veteran’s self-reported history of symptomatology, then the clinician must explain why. In formulating the opinion, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence, both for and against the claim, is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. If any opinion cannot be made without resort to mere speculation, then the VA clinician must fully explain why such an opinion cannot be made without resorting to such speculation. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. Thereafter, review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, then implement corrective procedures at once. 3. After completion of any additional development indicated, readjudicate the claim of entitlement to service connection for a chronic disability manifested by dizziness. If the benefit sought on appeal remains denied, then issue an appropriate Supplemental Statement of the Case and provide the Veteran and his attorney the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony Flamini, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.