Citation Nr: 20039904 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 14-16 099 DATE: June 11, 2020 REMANDED Entitlement to service connection for a disability manifested by dizziness, to include as secondary to service-connected headaches. Entitlement to service connection for a disability manifested by imbalance, to include as secondary to service-connected headaches. Entitlement to service connection for a disability manifested by a lack of concentration, to include as secondary to service-connected headaches. REASONS FOR REMAND The Veteran served on active duty from November 1978 to November 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2016, the Veteran appeared and testified at a travel board hearing before the undersigned Veterans Law Judge (VLJ). This case was before the Board in June 2018. The June 2018 Board decision, in pertinent part, denied the Veteran’s claims of service connection for dizziness, imbalance, and lack of concentration. The Veteran appealed the June 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In December 2019 the Court issued a memorandum decision that essentially vacated that part of the June 2018 Board decision that denied the service connection claims. In April 2020 the Veteran indicated that he had no further evidence to submit concerning these claims. Notably, the Board finds that the issue of entitlement to service connection for a head injury was not appealed by the Veteran. In the December 2019 CAVC decision, the Court determined the Board did not provide adequate reasons and bases for the decision that service connection for residuals of a TBI was not appealed. An appeal consists of a timely filed Notice of Disagreement in writing and, after a Statement of the Case has been furnished, a timely filed Substantive Appeal. 38 C.F.R. § 20.200 (2019). A notice of disagreement is a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with rating decision and a desire to contest the result. 38 C.F.R. § 20.201 (2019). While special wording is not required, the NOD must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201. If the agency of original jurisdiction gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified. 38 C.F.R. § 20.201. A lack of a timely filed NOD, however, is a jurisdictional bar to appellate consideration, and this issue may not be waived. See Percy v. Shinseki, 23 Vet. App. 37, 41 (2009). Here, in a 1980 rating decision, service connection was granted for headaches. In an October 2012 rating decision and letter, the RO denied service connection for TBI, dizziness, imbalance, lack of concentration, and defective bilateral vision. The RO also granted a 30 percent evaluation for service-connected headaches. The Veteran submitted a November 2012 NOD which indicated he was only appealing the following: dizziness; imbalance; lack of concentration; and defective vision. The Veteran noted the first three were due to service-connected headaches or head injury. At no point did the Veteran assert he was appealing the TBI denial. In the 2018 decision, the Board determined that the NOD also included the increased evaluation for headaches because the Veteran’s symptoms of dizziness, imbalance, and lack of concentration were actually part of his service-connected headaches. This was based on the testimony at the Board hearing. At no point did the discussion at the hearing address that the issue of entitlement to service connection for residuals of a TBI was also included. Accordingly, the Board finds that the November 2012 submission did not identify the specific determination of residuals of a TBI as an issue that was being appealed. 38 C.F.R. § 20.201. Accordingly, the Board finds that no NOD was filed as the issue of entitlement to service connection for residuals of a TBI. Based in part on evidence added to the claims file since the June 2018 Board decision, and based in part on the discussion in the Court’s December 2019 memorandum decision, the Board finds that examinations are necessary to decide the claims of service connection for a disability manifested by dizziness, imbalance, and lack of concentration as the evidence of record does not contain sufficient competent medical evidence to decide the claims. In this regard, a medical opinion is necessary to determine whether there are any current disabilities associated with the Veteran’s complaints of dizziness, imbalance, and lack of concentration. As such, the Veteran should be scheduled for a VA examination with a medical opinion. If it is not possible for the Veteran to be physically present for the VA examination, determine if it is possible to provide the requested opinion without him being present. If it is not possible, provide an explanation as to why. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment on and after January 23, 2019. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant non-VA medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the appellant which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his claimed disabilities. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must state whether the Veteran has a disability manifested by dizziness, imbalance, or lack of concentration. For any such disability found to be present, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s disability had their onset in, or is otherwise caused by, the Veteran’s military service. The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected headaches disability caused or aggravated any current disability manifested by dizziness, imbalance, or lack of concentration. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2019). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Nelson 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.