Citation Nr: 21000728 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 190301-5530 DATE: January 6, 2021 ORDER Entitlement to service connection for vertigo is granted. FINDING OF FACT The Veteran’s vertigo had its onset in service. CONCLUSION OF LAW The criteria for service connection for vertigo have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army September 1998 to February 2014, including combat service in Iraq. His service is considered honorable for the period from September 18, 1998 to August 18, 2006. In a November 2016 VA notification letter, the RO informed the Veteran that it had determined that his period of active service from August 19, 2006 to February 12, 2014 is considered dishonorable for VA purposes. The Veteran was given one year to appeal the decision. As no appeal was filed, the decision is final. A period of dishonorable active service is a bar to the payment of VA benefits for any disabilities incurred during such service. See 38 C.F.R. § 3.12(b). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C. § 5108, 131 Stat. 1105 (2017)), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with the Department of Veterans Affairs (VA’s) decision on their claim to seek review. The Board of Veterans’ Appeals (Board) is honoring the Veteran’s choice to participate in VA’s test program, the Rapid Appeals Modernization Program (RAMP). The Veteran submitted a notice of disagreement (NOD) under the legacy framework in December 2017 appealing a February 2017 rating decision. The Veteran opted into RAMP in June 2018 and he selected the Higher-Level review lane at the RO. In March 2019, the Veteran filed a NOD (VA Form 10182) under the AMA framework seeking Direct Review by the Board of the evidence considered by an August 2018 rating decision. Therefore, the evidentiary record before the Board is limited to the evidence of record at the time of the RO’s August 2018 decision. 38 U.S.C. § 7113(a); 38 C.F.R. § 20.301. This case was previously before the Board in October 2019 when the Board denied service connection for vertigo. The Veteran appealed the Board’s October 2019 decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to an August 2020 Court Joint Motion for Remand (Joint Motion), the Court vacated the Board’s October 2019 decision, and remanded the matter to the Board for further action.   1. Entitlement to service connection for vertigo. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table decision). The Veteran seeks service connection for vertigo, contending such began during his period of honorable service from September 18, 1998 to August 18, 2006. The Veteran’s service treatment records show that on August 22, 2006 (during his period of dishonorable service), he was diagnosed with benign paroxysmal positional vertigo. His service treatment records also include a February 2010 consultation report regarding the Veteran’s complaint of chronic dizziness. It was indicated that the Veteran experienced his first episode of vertigo in 2004 (during his period of honorable service) after working out. Since the first episode, he has had episodic dizziness. The impression was suggestive of benign paroxysmal positional vertigo. Post-service treatment records include VA treatment records noting a long history of vertigo episodes, starting with the first in 2004, which occurred when he was lifting weights. See July 2017 VA treatment record. The Veteran also has a current diagnosis of vertigo, indicated to be managed with meclizine. See, e.g., October 2017 VA treatment record. Here, in light of the Veteran’s competent and credible lay evidence, as well as the service treatment records showing his complaint of chronic dizziness that had its onset during his period of honorable service and a diagnosis of vertigo related to such complaints, the Board finds that the Veteran’s vertigo became manifest during his period of honorable active duty. As such, the Board concludes that the evidence shows that the vertigo became manifest while the Veteran was on honorable active duty and thus was incurred in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Thus, all three elements necessary to establish service connection have been met. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Marley, 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.