Citation Nr: 20004745 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 17-58 409 DATE: January 21, 2020 ORDER As new and material evidence has been received, the petition to reopen the previously denied claim for entitlement to service connection for vertigo, to include as secondary to service-connected posttraumatic migraine headache disability is granted. REMANDED Entitlement to service connection for benign paroxysmal positional vertigo (BPPV), to include as secondary to service-connected disability is remanded. FINDING OF FACT 1. In a September 2002 rating decision, the RO denied the Veteran’s claim for entitlement to service connection for vertigo, to include as secondary to service-connected posttraumatic migraine headache disability, because the evidence failed to demonstrate a medical link between her vertigo and period of service, to include her posttraumatic migraine headaches. 2. Additional evidence has been associated with the claims folder since the September 2002 rating decision which relates to an unestablished fact necessary to substantiate the claim for service connection for vertigo. CONCLUSION OF LAW The criteria for to reopen the previously denied claim for entitlement to service connection for vertigo, to include as secondary to service-connected posttraumatic migraine headache disability, have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from April 1985 to February 1986 and from March 1989 to September 1995. 1. The petition to reopen the previously denied claim for entitlement to service connection for vertigo, to include as secondary to service-connected posttraumatic migraine headache disability The Veteran’s original claim for service connection for vertigo, to include as secondary to service-connected posttraumatic migraine headaches, was denied in a September 2002 rating decision due to a lack of medical nexus to service or posttraumatic migraine headache disability. The Veteran did not appeal, and no new and material evidence was received within a year of that rating decision, and it is considered final. 38 U.S.C. § 7105; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); 38 C.F.R. § 3.156 (b). VA may reopen and review a claim, which has been previously denied, if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In connection with the Veteran’s claim to reopen, she has submitted an October 2015 Disability Benefits Questionnaires (DBQ) completed by a private physician and provided lay testimony about the onset and continuity of her dizziness symptoms since her period of service. As this evidence was not before the RO or considered in the prior denial, it is new. This evidence relates to nexus, an unestablished fact necessary to substantiate the claim, and thus, it is material. Accordingly, new and material evidence has been received. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). For these reasons, reopening the previously denied claims of service connection for vertigo is warranted. Having reopened this claim, the Board finds that additional development is needed. REASONS FOR REMAND 1. Entitlement to service connection for benign paroxysmal positional vertigo (BPPV), to include as secondary to service-connected disability is remanded. The Veteran seeks entitlement to service connection for BPPV, which she believes is a result of a head trauma during her period of service. In the alternative, the Veteran asserts that her BPPV is secondary to her service-connected posttraumatic migraine headaches. The Board finds that additional development is needed prior to adjudication of the claim. Although the record contains the October 2015 DBQ completed by private physician, in which he noted that the Veteran’s BPPV was secondary to head trauma in service, no rationale was provided. During the November 2019 Board hearing, the Veteran testified that the October 2015 private medical notation was based on her reported history of in-service head trauma and onset and continuity of dizziness symptoms since service. However, the Board notes that the Veteran’s recent assertions of onset and continuity of her dizziness symptomatology is inconsistent with medical records that document such onset a few years after service. See May 1999 and March 2000 VA treatment records, and January 2001 VA neurology examination report. VA has sought to obtain VA medical opinions on whether the Veteran’s BPPV was a result of in-service head trauma or was proximately caused or aggravated by her service-connected posttraumatic migraine headaches. See July 2017 deferred rating decision. The record contains the reports of August 2017 VA medical opinions from TBI and ear examiners and a June 2018 addendum VA medical opinion from the VA ear examiner. However, none of the of VA medical opinions adequately address whether the Veteran’s BPPV was secondary to her posttraumatic migraine headaches. In the August 2017 VA medical opinion and June 2018 addendum the VA ear examiner concluded that the Veteran’s BPPV was not proximately caused or aggravated by her posttraumatic migraine headaches; however, the rationale statements in support the medical conclusion only discuss the time lapse between the 1989 in-service head trauma and first reports of vertigo-like symptoms in 2000. When VA undertakes to provide a veteran with a VA medical examination or opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In addition, a remand is needed to obtain a VA medical opinion on whether the Veteran’s BPPV is directly related to her period of service (other than her head trauma). In this regard, VA has conceded that the Veteran had exposure to loud noises from explosions as well as injury from altitude changes when flying when it awarded service connection for tinnitus. See April 1996 rating decision. Also, while service treatment records do not show of complaints or treatment dizziness, they do show complaints of ear pain associated with upper respiratory infections and sinusitis. Notably, the May 1999 VA treatment record shows that the Veteran reported that she had been evaluated and treated by her primary care physician for middle ear fluid in the past for when she complained of positional vertigo. Finally, the Veteran’s January 1996 VA general medical examination report shows she reported a history of dizziness during service associated with medication used to treat TB in August 1995. A remand is needed to obtain a VA medical opinion on whether the Veteran’s BPPV had an onset during service or is related to her period of service (other than head injury). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s BPPV is at least as likely as not related to her period of service, to include noise exposure from explosives, altitude changes during flights, and ear-related complaints. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s BPPV is at least as likely as not proximately due to service-connected disability and/or aggravated beyond its natural progression by service-connected posttraumatic migraine headache or tinnitus disabilities. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Murray, 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.